The present Writ Petition has been filed seeking to quash the proceedings of the Industrial Tribunal in I.D.No.44 of 2007 dated 30.06.2009, wherein, the Industrial Tribunal had directed the reinstatement of the 1st respondent into the services with full backwages and continuity of service and all attendant benefits.
2.Heard Mr.V.Chandrasekaran learned counsel for the petitioner and Mrs.Jothivani learned counsel for the 1st respondent and perused the materials available on record.
3.The Writ Petitioner is the Postal Department of Nagapatinam Division. According to the petitioner, one Kalaiselvan, who was working as a Gramin Dak Sevak, stamp vendor of Nagapatinam HO, went on leave. He had assigned the 1st respondent as his substitute to work in his place from October, 2000 to October, 2004. The substitute was paid prospective allowances of the GDS Stamp Vendor for the period he worked. He was never employed in the services of the Postal Department as per the established procedure laid down for the recruitment. He had been working in leave vacancies as and when it arises and from October, 2004, he was not nominated as substitute and therefore, he could not have worked in the https://www.mhc.tn.gov.in/judis Page No.2 of 9 W.P.No.2232 of 2010 Department. However, suppressing his nature of appointment, he had raised an Industrial Dispute which was referred by the Central Government Department of Labour, vide order dated 14.08.2007 to, the Central Government Industrial Tribunal/ Labour Court, Chennai. The following order of reference was made:
“ Whether the action of the Management of Superintendent of Post Offices, Nagapattinam, in terminating the services of their workmen Shri A.Suresh w.e.f. November, 2004 is legal and justified? If not, to what relief the workman is entitled to?”
4.On receipt of the notice in the claim petition, the petitioner had also filed a detailed counter affidavit explaining that the 1st respondent was nominated as a substitute by one Kalaiselvan when he had gone on leave and therefore, there was no question of terminating the service of the 1 st respondent workmen.
5.The Tribunal, according to him without considering the aforesaid facts on the erroneous premise that he has been continuously working for a period of four years and that the action of the management in terminating the services of the workmen is not legal and justified and directed reinstatement into service with full backwages, continuity of service and all attendant https://www.mhc.tn.gov.in/judis Page No.3 of 9 W.P.No.2232 of 2010 benefits.
6.Mr.V.Chandrasekaran would vehemently contend that the presumption of the Industrial Tribunal that there was a termination of service which was illegal is wholly erroneous and made based on the non-existing facts. According to him, there are well established procedures in the recruitment of the Postal Department. The attempt of the petitioner is to gain a back door entry into services of the Postal Department have to be depricated. Without considering all these facts, the Tribunal has closed its eyes and has held that the 1st respondent was terminated. According to him the 1st respondent was never appointed by the Department nor has he produced any order of appointment issued by the Department. He had also vehemently contend that in view of the above, the order of the Tribunal is liable to be interfered with and the direction issued by the Tribunal for reinstatement of the 1st respondent into service with full backwages, continuity of service and all attendant benefits should be set aside.
7.Countering his arguments, Mrs.Jothivani learned counsel appearing for the 1st respondent would submit that the 1st respondent started working as GDS Stamp Vendor in the place of Mr.M.Kalviselvan who was transferred from the said place on 12.08.1994. She also referred to various Office https://www.mhc.tn.gov.in/judis Page No.4 of 9 W.P.No.2232 of 2010 Orders, wherein, he was shown to be representing the Postal Department for All India Badminton Tournament held during the year 2002 and 2004. That itself would show his relationship of the 1st respondent with the Postal Department. Further, she argued that the Postal Department has to be held to be a industry within the meaning for the Industrial Disputes Act, 1947 and that the 1st respondent had worked continuously for a period of 240 days or more in a year and therefore, is entitled for absorption in the services of the Postal Department.
8.She would further contend that the 1st respondent had not gained any back door entry and that he was substituted by the said Kalviselvan when he had applied for leave and thereafter, he was transferred at the end of his leave period and the 1st respondent continued to operate as the GDS Stamp Vendor at Nagapatinam HO. There was no disturbance from the Department. Hence, she pleaded that the Postal Department has acquiesced itself and therefore, now cannot be said to claim that he was never appointed by the Postal Department and therefore, non-employment from October, 2004 would amount to termination of service and therefore, the Tribunal was right in holding that the 1st respondent was illegally terminated and therefore, his entitlement for reinstatement into service with full backwages, continuity of service and all attendant benefits.
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9.Having heard the arguments made by the learned counsel for the petitioner and the learned counsel for the 1st respondent, the following facts emerged. The 1st respondent was nominated as a substitute by one Kalviselvan as EDSV which itself is not a permanent employment under the Postal Department. The said appointment is to act as an agent of the Postal Department. Whenever, such appointed person goes on leave they would appoint a substitute in his place. The said fact is also admitted by the learned counsels appearing on both sides. It is not the case of the 1st respondent that he was appointed into the services of the Postal Department either on casual/ daily wage basis or on a temporary basis on a time scale. All he was paid a commission on the basis of the stamps that was sold by him. When that be so, he was never employed in the services of the Postal Department for it to terminate him and the Postal Department is not an employer of the 1 st respondent. When that be so, the Tribunal has proceeded on the premise that the 1st respondent has been appointed by the Postal Department. The 1st respondent has also not produced any order of appointment issued by the Postal Department in respect of his appointment.
10.It is the case as stated by Mr.V.Chandrasekaran, learned Standing counsel, Postal Department has its own service rules for recruitment of its https://www.mhc.tn.gov.in/judis Page No.6 of 9 W.P.No.2232 of 2010 office. It also has a separate rules for appointment of EDSv's. At no point of time, the EDSV's were given any preferential appointment in the Postal Department. They also have to apply pursuant to any notification issued by the Postal Department for recruitment if any called for. The said procedure has not been disputed by the learned counsel for the 1st respondent.
11.In view of the above, I am of the view that the Tribunal has wholly erred in holding that the 1st respondent was in service of the Postal Department and that his termination is bad. As rightly pointed out by Mr.V.Chandrasekaran, the 1st respondent cannot gain a back door entry into the services of the Postal Department.
12.In light of the above, I am of the view that the order passed by the Tribunal is without appreciating the material facts available on record and the conclusion arrived at by the Tribunal,as that the termination is bad that too when there was no appointment made by the Postal Department and therefore, consequential direction to reinstate the 1st respondent into service with full backwages, continuity of service and all attendant benefits are liable to be struck down.
13.In view of the same, the Writ Petition is allowed and the order made in Award I.D.No.44 of 2007 dated 30.06.2009 is set aside. However, https://www.mhc.tn.gov.in/judis Page No.7 of 9 W.P.No.2232 of 2010 there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
30.09.2022 Index: Yes/no Speaking gba K. KUMARESH BABU, J.
gba To The Presiding Officer, The Industrial Tribunal – Cum- Labour Court, Chennai – 600 104.
A Pre-delivery order in W.P.No.2232 of 2010 and W.M.P.No.1 of 2010 https://www.mhc.tn.gov.in/judis Page No.8 of 9 W.P.No.2232 of 2010 30.09.2022 https://www.mhc.tn.gov.in/judis Page No.9 of 9