Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the first respondent.
2. This writ petition has been filed by the petitioners challenging the award of the second respondent Labour Court, dated 6.5.2003, made in I.D.No.517 of 1995.
3. It has been stated that the first respondent and 14 others had filed a writ petition before this Court, in W.P.No.8431 of 1986, praying for a writ of mandamus to direct the respondents therein, including the petitioners in the present writ petition, to continue to employ the petitioners in service. After hearing the petitioners, as well as the respondents therein, this Court was pleased to dismiss the said writ petition by an order, dated 2.7.91, on a specific finding that the petitioners, except one K.Balakrishnan, had not worked for the statutory period of 240 days and therefore, the provisions of
Section 25F of the Industrial Disputes Act, 1947, would not be applicable to them. Aggrieved by the said order, a writ appeal had been preferred before a Division Bench of this Court, in W.A.No.1164 of 1991. The said appeal had been dismissed by an order, dated 5.12.91, permitting the petitioners to resort to the appropriate process prescribed by the laws relating to industrial disputes. Accordingly, the first respondent had filed a petition before the Labour Officer III, Kuralagam, Chennai, for conciliation of the dispute. Since no conciliation could be arrived at, a failure report had been submitted to the Government.
4. As the dispute was not referred to the Labour Court for adjudication, the first respondent and some others, who were similarly placed, had filed a writ petition, in W.P.No.8191 of 1993, seeking for a direction to the Government to refer the disputes to the Labour Court. This Court had dismissed the said writ petition, on 4.9.95, reserving their right to approach the Labour Court, in accordance with law. In pursuance of the said order, the first respondent had raised an industrial dispute, on the file of the second respondent Labour Court, in I.D.No.517 of 1995, praying for a direction to direct the petitioners to reinstate him, with continuity of service and all other attendant benefits. The petitioners had filed a counter, denying the claims made by the first respondent. Evidence was let in and documents were marked. Thereafter, the second respondent Labour Court had passed an award, dated 6.5.2003, directing the petitioners to reinstate the first respondent in service, as a daily-rated employee, without adverting to the legal objections raised by the petitioners stating that the first respondent had worked only for 98 days in the year, 1985 and 33 days in the year, 1986. The said fact had been testified by the witnesses examined on the side of the petitioners. The second respondent Labour Court had not given any reason as to why the evidence of M.W.1 could not be considered, to reject the claims made by the first respondent. The first respondent had not proved that he had worked for more than 240 days in a year. Therefore, the question of retrenchment does not arise and
Section 25F of the Industrial Disputes Act, 1947, has no relevance to the case of the first respondent. Therefore, the award of the second respondent Labour Court, directing the petitioners to reinstate the first respondent in service, is unsustainable in the eye of law. The Labour Court had not shown sufficient reasons for not accepting the evidence of M.W.1, examined on behalf of the petitioners, to disprove the claims made by the first respondent. The second respondent Labour Court had failed to consider the legal question, as to whether there was retrenchment, as defined under
Section 2(oo) of the Industrial Disputes Act, 1947.
5. Mr.Kandavadivel Doraisamy, the learned counsel appearing for the petitioners had relied on the decision of the Supreme Court of India, reported in M.P.Housing Board & Anr. V. Manoj Shrivastava (J.T 2006(3) SC 73), wherein it was held that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. To obtain the status of a "permanent employee" he must be appointed in terms of the statutory rules applicable to his service. He should have been appointed against a vacant post which had been duly sanctioned by the competent statutory authority or that his appointment should have been made following the statutory law operating in the field. The learned counsel had relied on the decision of the Supreme Court in Secretary State of Karnataka V. Umadevi (3) (2006 (4) SCC 1), to show that the Courts of law would not, in normal circumstances, issue instructions for regularisation of the services of irregularly or illegally appointed persons.
6. Mr.G.Rajagopalan, the learned Senior Counsel appearing on behalf of the first respondent, had submitted that even though the first respondent was a daily-rated employee, his wages were being paid on monthly basis. Even though it was contended on behalf of the petitioners that there was no work available for continuing the first respondent in employment, an advertisement had been issued by the Madras University calling for candidates to be employed for performing the same functions as that of the first respondent. Some of the persons who were similarly placed, as that of the first respondent, had been given employment by the petitioner University. Since the first respondent had been in continuous employment and having satisfied the requirements of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, as well as the Industrial Disputes Act, 1947, the first respondent cannot be denied employment, as rightly held by the second respondent Labour Court. Therefore, the award of the second respondent Labour Court, dated 6.5.2003, made in I.D.No.517 of 1995, is in accordance with law and valid. In such circumstances, the writ petition filed by the petitioner is liable to be dismissed, as devoid of merits.
7. The learned Senior Counsel, appearing for the first respondent, had relied on the following decisions in support of his contentions:
7.1. In U.P.State Electricity Board Vs. Pooran Chandra Pandey (2007 (9) SCC 92), it has been held that the decision of the Supreme Court in Secretary State of Karnataka V. Umadevi (3) 2006 (4) SCC 1 cannot be applied, mechanically, in all cases, without seeing the facts and circumstances of the particular case. In view of
Article 14 of the Constitution of India, the employees who had put in long years of service cannot be denied the benefit of regularization in service. The learned counsel had also relied on the decision reported in Registrar, University of Madras Vs. P.Gajendran (1991 Writ L.R. 659).
8. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the University of Madras, the first petitioner herein, had placed before this Court a communication No.F.1.(B)/ESTT/2008/3854, dated 1.12.2008, from the Registrar-in-charge, University of Madras, Chennai, which reads as follows:
"With reference to your letter cited, I am, by direction, to inform that the Temporary vacancies are available on daily wages basis only and Madras University cannot give guarantee for employment throughout the year. Subject to the order passed by the Honourable High Court, Madras University can consider and give temporary appointment on daily wages without backwages.
I am, therefore to request you to kindly inform accordingly to the Honourable High Court on the day of hearing."
9. The learned counsel appearing on behalf of the first respondent had submitted that the first respondent would accept the offer made on behalf of the University of Madras, the first petitioner in the present writ petition, as stated in the communication, dated 1.12.2008, without agitating the matter any further, on merits.
10. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the respondents, the award of the first respondent Labour Court is set aside and the first petitioner University is directed to consider and give temporary appointment to the first respondent, on daily wages, without any backwages. However, if the first respondent is aggrieved by any of the aspects relating to the matter, it may be open to him to agitate the same before the appropriate forum, in the manner known to law.
Accordingly, the writ petition stands closed, with the above directions. No costs.
csh To The I Additional Labour Court, represented by its Presiding Officer, Chennai 600 104