THE HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NOs.26517, 26529 AND 26536 OF 1999 W.P.NO.26517 OF 1999 Between:-
R.Atchyuta Rao. And …Petitioner The Chairman, Board of Trustee, Visakhapatnam Port Trust, Visakhapatnam and another.
…Respondents.
W.P.NO.26529 OF 1999 Between:-
V.Jagannadha Rao And …Petitioner The Chairman, Board of Trustee, Visakhapatnam Port Trust, Visakhapatnam and another.
…Respondents.
W.P.NO.26536 OF 1999 Between:-
V.Madhusudhan Rao And …Petitioner The Chairman, Board of Trustee, Visakhapatnam Port Trust, Visakhapatnam and another.
…Respondents.
THE HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NOs.26517, 26529 AND 26536 OF 1999 COMMON ORDER:
Heard the learned counsel appearing for the petitioners in all the writ petitions and the learned counsel appearing for the respondents.
All the writ petitions are filed for a mandamus, declaring the action of the respondents in denying the benefit of regularization to the petitioners on par with the female workers who are working similar to that of the petitioners as violative of Articles 14 and 16 of the Constitution of India and consequently to direct the respondents to regularize the services of the petitioners with retrospective effect i.e., from the date of their initial appointment and to pay the difference of salaries immediately.
Since common questions of fact and law would arise for consideration in all these writ petitions, they are disposed of by the following common order.
It is submitted by the petitioners that they joined in service as Casual Labourer in Marine Department on 9-
4-1983 and were discharging their duties as employees of the respondent corporation. It is submitted by the petitioners that the respondents have been regularizing the services of Casual Labour who served more than 240 days from the date of completion of 240th day. According to them, the process of regularization for the Casual Labourer has begun in 1996 in pursuance of the award of the Industrial Tribunal, Visakhapatnam in I.D.No.5 of 1993, dated 7-12-1995 and the said award has been made applicable by the respondents to female candidates on the ground that all the remaining Casual Labourers are not parties before the Industrial Tribunal.
It is further submitted that the management agreed for some of the proposals including regularization of services of the employees on the issue raised by one of the recognized unions i.e., Visakha Harbour and Port Workers Union in the minutes of meeting held on 30-8-1997 and on 15-10-1997. However, the respondents regularized the services of female employees who are working similar to the petitioners and the respondents acted discriminately in giving effect of regularization from the date of initial appointment to female employees and denying the same benefit to male employees. Some of the employees i.e., Visakhapatnam Port and Dock Workers’ Union filed W.P.No.4448 of 1999, which is pending consideration. It is further submitted by the petitioners that they should be extended the same benefit and their services would be counted for service prospects and that they would get some monetory benefit and therefore, direct the respondents for regularization of their services from the date of their respective initial appointments.
The respondents filed counter contending as under:- In order to be considered for confirmation/regularization, continuous appointment for a period of 240 days in a particular post is necessary and that too when there is a permanent vacancy in the post and there are no other incumbents for the said post, then only the applicability of the judgment of the Hon’ble Supreme Court or High Court would arise. It is submitted that the Industrial Tribunal having relied on the Judgment of the Supreme Court directed regularization of the Casual Labourer who have completed 240 days. According to the respondents even for the implementation of the said award only those casual labourers who were in continuous employment for a period of 240 days and whose personal records were available with the respondents were only processed for their regularization in the permanent posts, but on no occasion the respondents discriminated the employees.
Nextly it is contended that the very fact of pendency of W.P.No.4448 of 1999 before the High Court of Andhra Pradesh would clearly indicate that the matter is sub- judice and no action could be taken by the respondents at this stage. It is also submitted that the availability of personal records are the essential criteria along with existence of permanent post without any incumbent for the said post could be considered in order to enable the petitioners to be eligible for regularization from the date of their initial appointment. In the absence of availability of such particulars, it is practically impossible to consider the petitioners for regularization right from their initial appointment.
It is further contended that the remedy sought for by the petitioners is misconceived for invoking the jurisdiction under Article 226 of Constitution of India and the remedy lies by raising a dispute under Industrial Disputes Act, but they cannot invoke the extraordinary jurisdiction of the High Court.
Except the assertion made by the petitioners that some of the employees who are similarly placed were regularized from the date of their initial appointment by virtue of the orders passed by the Industrial Tribunal in I.D.No.5 of 1993, absolutely no material is placed on record showing that they fulfilled the requisite criteria for their regularization from the date of their initial appointment. When the matter requires some evidence to be adduced, this Court cannot grant any relief in exercise of the jurisdiction under Article 226 of the Constitution of India. Absolutely, no material has been placed on record showing that on what basis the female employees are regularized and the basis for their regularization. It is merely averred in the affidavits filed in support of their writ petitions that their cases are similarly placed to that of the petitioners in I.D.No.5 of 1993.
Admittedly the services of the petitioners were regularized in the year 1989. Their grievance is that for claiming the service benefits, their services have to be regularized from the date of their initial appointment on par with the petitioners in I.D.No.5 of 1993. In this context, it requires to be mentioned that the learned Industrial Tribunal considered the specific case of the petitioners basing on the verification of records and on being satisfied about the fulfillment of the requisite criteria, extended the benefit to the petitioners therein. The petitioners without placing any material on record, claimed that their cases have to be considered on par with the petitioners in I.D.No.5 of 1993.
Further, dealing with the similar claims, the learned Single Judge of this Court dismissed W.P.No.4448 of 1999 on the ground that the petitioner therein is not entitled for the similar relief. A Review Petition filed in W.P.M.P.No16809 of 2004 was also dismissed by order dated 29-07-2004.
This Court therefore, is of the view that it is not supposed to take a different view which was taken by the learned Single Judge in W.P.No.4448 of 1999. Further more, in the absence of any material showing that the petitioners herein fulfilled the criteria for their regularization from the date of their initial appointment, the relief prayed for by the petitioners cannot be granted in these writ petitions.
Consequently, the writ petitions are dismissed. There shall be no order as to costs. The Miscellaneous Petitions pending if any shall stand closed.
R.KANTHA RAO,J Date: 10-06-2014 Shr.
THE HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NOs.26517, 26529 AND 26536 OF 1999 Date: 10-06-2014 Shr.