This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, seeking an order in the nature of a writ of mandamus, directing the respondents herein not to exclude the petitioner in the scheme for engagement of temporary labour by the respondent in Madras / Chennai, that was approved by the Division Bench of this Court in W.A.No.808 of 2000 and related cases on 11.12.2002.
2. The petitioner herein joined duty under the respondent management as a temporary labour-loader in the year 1989 and worked as such till 1995 and thereafter, he was given one year break. He was again engaged as 'Sufaiwala' between the period July 1992 and June 1993. The petitioner was allotted the work in baggage handling section in the Cargo Division by the respondent in Indian Airlines. He was again given re-employment for a short period in the year 1995. The respondents used to employ workers on temporary basis, on fixed duration spells of 90 days and in view of the fact that many others like the petitioners were engaged in such a successive spells, without being made permanent, writ petitions were filed for permanency and the scheme presented by the Indian Airlines in the said batch of cases was accepted by all the workers. A Division Bench of this Court in W.A.No.808 of 2000, by its order, dated 11.12.2002 approved the same with the modification, that for the purpose of consideration and for being included in the scheme, the worker should have put in a minimum of 90 days service in any year from 1991. The Division Bench has also observed that it was not practical or rational to include even those workers who have put in just a few days of work in all these ten years, for the purpose of consideration. Except this modification, the Division Bench sustained the Judgment of the learned single Judge approving the scheme by the Indian Airlines.
3. The Hon'ble Supreme Court declined to grant Special Leave to appeal against the said Judgment, in the SLP filed by the worker. The scheme has been extracted as follows :
"1. Since the casuals who had worked between 1993 and 1995 were already covered by our earlier notification and the eligible candidates already interviewed, in order to enable the casuals who had worked between 1991 and 1992 a fresh employment notification will be issued inviting applications exclusively from these casuals to respond against the said employment notification.
2. The casuals will have to meet the eligibility criteria including the minimum qualifications laid down for the post, which is 8th, class pass from a recognized school.
3. The casuals who had worked during the years 1993 to 1995 were already given age relaxation to the extent of the period they worked as casual in the respondent company and similarly the casuals who had worked from 1991 to 1992 would also be covered by giving relaxation of age to the extent of the period they worked.
4. The cut-off date for the purpose of reckoning the eligibility criteria will be on 4th July 1997 i.e., the date of the earlier notification against which the petitioners have come to the Court.
5. Selections will be made by the same Selection Committee as per the Recruitment and Promotion Rules of the Company.
6. A Panel will be drawn of the selected candidates as per merit and as per Rules. The validity of the panel as drawn will be for a period of two years from the date of approval of the same by the competent authority.
7. Directives of the government on reservations will be adhered to.
8. Any appointment in the respondent company is subject to the recruitment and promotion rules including the pre-employment formalities and on being declared medically fit by the Medical Officer of the Company, which will also be applicable to these casuals.
9. 50% of the vacancies for the post of Helper (Commercial) will be set apart for casuals who have worked from 1991 onwards.
10. Those who cannot be appointed due to non-availability of vacancies during the validity of panel would be given ex-gratia calculated on the basis of compensation payable under
Section 25-F of the Industrial Disputes Act, 1947. However, they will have no claim for re-employment as causal or otherwise in future.
11. This will be a one time exercise only and will not be quoted as a present at any point of time in future."
4. The second respondent herein sent a letter dated 23.12.2004 stating that the petitioner had completed 90 days of service in the respondent airlines and as such he was found eligible under the scheme. As per the judgment of the Division Bench, the petitioner has further submitted that he was first engaged from July 1992 to June 1993. In view of the fact that he was engaged in the period of last half of the year that is in July, August, September, October, November, December, normally the workers would be eligible for 20 days or less, therefore, a part of 90 days spell falls in a particular calendar year and the rest of the spell would be in January, February and March of the next calendar year. Hence, according to the petitioner, he has put in 90 days of service in the year referring from July 1992 to June 1993 and as such he is entitled to the benefits of the scheme and was rightly engaged under the scheme. However, in the beginning from April 2004, the petitioner was denied work even though he had the portion of 90 days left to be completed in the year 2004 and that was also done without any notice to him.
5. Mr.V.Prakash, learned Senior Counsel appearing for the petitioner submitted that the denial of the work to the petitioner was a violation of Principles of natural justice and contrary to the scheme approved by this Court. Learned Senior Counsel further contended that the only source of the petitioner for his livelihood is his employment in Indian Airlines, and due to the extreme hardship caused to him, he was constrained to file a writ petition in W.P.No.34191 of 2005, seeking for his re-employment under the respondent herein, in terms of the scheme incorporated as per orders passed in the Writ Appeal in W.A.No.808 of 2000 dated 11.12.2002.
6. In the counter affidavit filed by the respondent, the order dated 11.12.2002 passed in W.A.No.808 of 2000 by the Division Bench of this Court and the finality reached therein has not been disputed. The main contention raised in the counter is that the petitioner herein had worked only for 87 days, though for the eligibility, he could have worked for a minimum period of 90 days. In the counter, the respondent has specifically stated that the petitioner claims to be worked as causal labour in the respondent airlines from 1989-91, but from our records we find that the petitioner worked as a casual labour in the Engineering Department between August 1992 to June 1993, only for a period of 87 days and it is further stated that the petitioner did not work for 90 days during the period of 12 months from 1991 till the date of judgment of the Division Bench i.e., on 11.12.2002. Hence, he does not qualify under the scheme and therefore, the petitioner's name was not included in the scheme.
7. In support of his contention, the petitioner herein has produced a certificate issued by the Deputy General Manager, (Engineering), wherein, it is certified that the petitioner had worked from July 1992 to June 1993 for a period of 90 days.
8. Mr.N.G.R.Prasad, learned counsel appearing for the respondents contended that the aforesaid certificate issued by a Deputy General Manager (Engineering) cannot be accepted, as it is not an authenticated document, though it was given in a white paper with the seal of the Deputy General Manager (Engineering). As the supporting document produced by the petitioner has not been admitted by the respondents, this Court, at the request of both the learned counsel, adjourned the matter with the direction to the respondents to produce the attendance register or any other supporting documents to show that the work being done by the petitioner herein during July 1992 to June 1993. When the matter was taken up today, learned counsel appearing for the respondents submitted that the relevant records relating to the period could not be produced by the respondents.
9. Learned Senior Counsel appearing for the petitioner further contended that in the counter filed by the respondents the total period of work done by the petitioner has not been taken into consideration, only the period between August 1992 and June 1993 has been stated, though the 90 days period is not based on academic year but only 12 months period, which is not in dispute. However, the respondents leaving the month July 1992 has stated only for 11 months, whereby the petitioner had worked for 87 days. As per the certificate issued by the Deputy General Manager (Engineering), which is available in the typed set of papers, at page No.21, it would be clear to show that the petitioner had worked for 90 days from July 1992 to June 1993. The genuineness of the document is not in dispute. The respondents have stated that it is not an authenticated document, however, in the absence of any contra evidence, I am of the view that the certificate issued by the responsible officer, Deputy General Manager of the respondents has to be taken into consideration and further the 87 days period calculated by the respondents is only from August 1992 to June 1993 for eleven months, if the period July is also added, there is a possibility for computing 90 days, as per the certificate issued by the Deputy General Manager of the respondents.
10. Learned counsel appearing for the petitioner also drew the attention of this Court to the decision rendered in K.C.P. Employees' Association, Madras vs. Management of K.C.P. Ltd., Madras and others reported in 1978 LLJ 322 wherein in at paragraph 6, it has been held thus:
"6. In industrial Law, interpreted and applied in the perspective of Part IV of the Constitution, the benefit of reasonable doubt on law and facts, if there be such doubt, must go to the weaker section, labour..."
V.R.Krishna Iyer,J, one of the notable Judges, known for progressive interpretations has given the ruling.
11.In the instant case, the petitioner has categorically stated that he was a casual labour engaged by Indian Airlines. As per the scheme, he has put in a minimum of 90 days of service between July 1992 and June 1993, whereas in the counter, leaving July 1992, from August 1992 to July 1993 only for a period of eleven months, 87 days has been calculated and there is a shortage of three days. The certificate issued by the Deputy General Manager (Engineering), would clearly shows that the petitioner herein had worked for 90 days between July 1992 and June 1993. The aforesaid certificate issued for 12 months is not contrary to the averments made in paragraph 5 of the counter, since the counter reflected only for a period of eleven months. The Division Bench, by its judgment dated 11.12.2002 made in W.A.No.808 of 2000 and other connected writ appeals held as follows:
"After considering the submissions on either side on the method prescribing the norms in the preparation of the list of casual workers from the year 1991, we are of the view that for the purpose of consideration, a worker should have put in a minimum of 90 days of service in a year from 1991. We find, it is not practical or rational to include even those workers who have put in just a few days of work all these ten years for the purpose of consideration. It is quite possible as submitted, many of such persons would have gone to different places or jobs and the unwieldy list would not be practicable for preparation. Excepting this direction to modify the Scheme in this respect, in all other respects, we uphold the Scheme and confirm the judgment of learned Single Judge."
12. In the light of the aforesaid Judgment and the decision rendered by the Hon'ble Apex Court referred to above, this Court is of the view that the writ petitioner herein has established his claim and accordingly, this writ petition has to be allowed, to meet the ends of justice.
13. In the result, this writ petition is allowed and the respondents are directed not to exclude the petitioner in the scheme of the respondents in Madras / Chennai, that has been approved by a Division Bench of this Court in W.A.No.808 of 2000 and other cases on 11.12.2002 and issue appropriate orders to that effect within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs.
smi To
1.The Regional Director, Management of Indian Airlines Ltd.
Airlines House, Meenambakkam, Chennai 600 0027.
2.The General Manager(Personnel) Indian Arilines Limited, Airlines House, Meenabakkam, Chennai 600 027