IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.46265 of 2002 and W.M.P.Nos.67339 & 67340 of 2002 and W.M.P.Nos.42920 of 2003 & 9088 of2003 and W.M.P.No.66 of 2007 The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Section, 75th Cross Street, Gandhi Nagar, Vellore - 7 .. Petitioner Vs 1.R.Munusamy 2.The Presiding Officer, Labour Court, Vellore. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records in the impugned Award dated 24.06.2002 made in I.D.No.207 of 1996 on the file of the 2nd Respondent/Labour Court, Vellore and to quash the same. For Petitioner : Mrs.Sudharshanasundar For 1st Respondent : Mr.K.M.Ramesh For 2nd Respondent : Labour Court ORDER The Writ Petition filed by the Petitioner/Tamil Nadu Water Supply and Drainage Board is directed against the Award dated 24.06.2002 in I.D.No.207 of 1996 passed by the 2nd Respondent/Labour Court, Vellore. 2.The 2nd Respondent/Labour Court, Vellore, in its Award dated 24.06.2002 in I.D.No.207 of 1996, has observed that 'as per Ex.W.9, the 1st Respondent/Petitioner has worked for 127 days, as per Ex.W.9 series, has worked for 89 days, as per Ex.W.12 has worked for 237 days and in all, has worked for 450 days as per the written arguments filed on behalf of the 1st Respondent/Petitioner. On perusal of https://hcservices.ecourts.gov.in/hcservices/ Ex.W.1 series, it is seen that the Petitioner has worked during the year 1995. If he has been removed from service on 26.12.1990 how he has been allowed to work during 1995 has not been explained. From 26.9.89 till 26.7.90 he has worked for 237 days as seen from Ex.W.12. Since on the side of Respondent/Writ Petitioner, the refusal of work to the 1st Respondent has not been denied and it is construed that the Petitioner in a year has worked for more than 240 days and as such, the refusal of work to him is not legally a valid one and therefore ordered his reinstatement and passed an Award thereto.' 3.In I.D.No.207 of 1996 filed by the 1st Respondent/Petitioner on the file of the 2nd Respondent, it is averred that he has been appointed and posted on 1.7.1989 as Mazdoor and Valve Operator on daily wage coolie of Rs.14.25 paise. He has been paid a salary once in a month and further has been placed in-charge of Cheyyatraivendran. According to the 1st Respondent/Petitioner on 24.6.1989 his daily wage has been increased to a sum of Rs.22/- from Rs.14.25 and it has been paid every month in a lumpsum. On 5.9.90 he has been transferred from Cheyyatraivendran to perform the work at Chinna Chengadu, Peria Chengadu, Krishnavaram, Nemmeli, Oorkudi, Thennanur and Pancharai and has been working there upto 28.9.90. 4.The case of the 1st Respondent/Petitioner is that he has been working till 26.12.1990 and that he has been removed from service without any reason or justification. There has been no charge or defect on his part in discharging his duties. His sudden removal from service is against the principles of natural justice. 5.The Writ Petitioner/T.W.A.D. Board, in its counter to I.D.No.207 of 1996, has, among other things, stated that the Petitioner has not been recruited through Employment Exchange and that the Respondent is not empowered to appoint him in their division. Also, it is the stand of the Writ Petitioner/T.W.A.D. Board that the 1st Respondent/Petitioner has been appointed on daily wages whenever required and moreover, the Cheyyar division has been closed and therefore, it is not in a position to absorb him. That apart, after his removal in the year 1990, he has filed I.D.No.207 of 1996 after a gap of six years and that the same is barred by limitation. 6.The Learned Counsel for the Petitioner/T.W.A.D. Board submits that the Labour Court has failed to note that Section 12(3) Settlement under the Industrial Disputes Act applied to individuals who have been in employment in the Board at the time of settlement and who has put in 480 days of continuous service in 24 calendar months. 7.Also, it is the contention on the part of the Writ Petitioner/ Management that the 1st Respondent/Petitioner has not put in 480 days https://hcservices.ecourts.gov.in/hcservices/ of continuous service in two calendar years prior to termination and Exs.W.6 to W.11 will not help the case of the workman. 8.The Learned Counsel for the Petitioner/Board contends that the 1st Respondent/Workman has been appointed on a daily wages by means of an oral order as and when it is required contrary to Board Proceedings No.247 dated 9.10.90. 9.In this connection, it is useful to refer to the evidence of W.W.1 (Petitioner in I.D.No.206/1996), W.W.2 (S.K.Venkatesan- Petitioner in I.D.No.203/1996) and the evidence of M.W.1 (Junior Engineer of the T.W.A.D. Board) for a fuller and better appreciation of the controversies involved in the respective industrial disputes. 10.W.W.1 (Petitioner in I.D.No.206/1996), in his evidence [adduced on behalf of other Petitioners in I.D.Nos.203, 204, 205, 207, 213, 233 of 1996), has deposed that the Petitioner in the aforesaid industrial disputes have worked in the Desur Thellar Joint Drinking Water Scheme and the Scheme Headquarters is situated at Vellore Gandhi Nagar and they have all worked as Valve Operator and Night Watchman. 11.It is the further evidence of W.W.1 that he has been appointed on 22.8.1988 and on 6.12.88 place of work where he has to work has been allotted to him and the said order is Ex.W.1 and on 14.6.89 he has been transferred and the Transfer Order is Ex.W.2 and on 24.6.89 his nature of work [viz., opening the valve and closing the valve] has been issued to him and the said order is Ex.W.3 and Ex.W.4 is the Transfer Order issued to him on 5.9.90 and another Transfer Order- Ex.W.5 issued to him is dated 28.9.90 and the Ex.W.6-Certificate has been issued to him by the Junior Engineer for the Valve Operator Job performed by him and that the Junior Engineer has issued the Job Certificate to him for his good work viz., Ex.W.7. 12.The evidence of W.W.1 is to the effect that when he joined the job originally he has been paid on daily wage of Rs.14.25 paise and that he has been paid the monthly salary and from 29.6.90 daily wage of Rs.22/- has been calculated and the same has been paid monthly to him. 13.The substance of evidence of W.W.1 is that he along with other workers [Petitioners who raised individual industrial disputes] have worked continuously for 480 days and therefore, they have to be regularised and pray for the reinstatement with backwages and also that totally 67 persons have worked and 7 workers have been made permanent and also they have been given the promotion. 14.W.W.1, in his cross examination, has stated that they have not been appointed through Employment Exchange and that they have been https://hcservices.ecourts.gov.in/hcservices/ taken in as Daily Coolies by the Vandavasi Water Supply and Drainage Board and at that time, one Sivasankaran has been serving as Executive Engineer and that the Desur Thellar Joint Drinking Water Supply Scheme has been completed and for that scheme work they have been appointed and after the closure of the said scheme, the Vandavasi Water Supply and Drainage Scheme Board has been closed and one section of their workers have been transferred to Chetpet and another set of persons have been transferred to Cheyyar and lastly they have served at Cheyyar and Chetpet division and these divisions are presently there or presently in existence and they have not added the companies. 15.W.W.2-S.K.Venkatesan [Petitioner in I.D.No.203/1996], in his evidence, has deposed [before the 1st Respondent/Labour Court] to the effect that he and others have been removed from service on 26.12.90 and that they have been given the petition through their Union before the Inspector of Labour after the removal and the Inspector of Labour has passed an order Ex.W.14 dated 10.10.91 that they should be reinstated into service and that the Managing Director has given an order that if a person has worked for 480 days he can be made permanent and accordingly, 71 persons have been made permanent and the further, the details of date of appointment, number of days worked are mentioned in Ex.W.15-order of the 2nd Respondent/ Management to the workers dated 19.9.96. 16.W.W.2 in his cross examination has deposed that they obtained Ex.W.15-Order of the Management dated 19.9.96 through their workers Union and the original of Ex.W.15 has not been marked and also it is true to state that persons mentioned in Serial No.1, 2, 42 to 48 and 50 to 71 have been recruited through Employment Exchange and the persons who have been recruited through the Employment Exchange have passed in 10th Standard. It is also the evidence of W.W.2 that after 12.5.88 all appointments have been made through Employment Exchange office and the Vandavasi division presently has been included in the Cheyyar division. 17.It is the evidence of M.W.1 [Junior Engineer of the T.W.A.D. Board] that he has not worked at the Vandavasi section and at that time when the Petitioners have filed the case before the Tribunal, he served as Junior Engineer at Chetpet Deputy Water and Drainage Board and that he served from 24.11.88 till 6.6.94 and that he does not know about the details of appointments of the Petitioners and that the Petitioners have worked as daily wages. 18.It is the further evidence of M.W.1 that their Board's Memorandum Order M.S.No.247 dated 9.10.90 is Ex.M.1 and for more than 7 seven days the Petitioners have not been appointed continuously and that they are appointing persons for all jobs through Employment Exchange. https://hcservices.ecourts.gov.in/hcservices/ 19.M.W.1 in his cross examination, has stated that the details mentioned in Ex.W.2 [Transfer Order dated 14.6.89 issued to W.W.1 and other two workers] and Ex.W.3 [order dated 24.6.89 issued to W.W.1 and another worker] are true and that he does not know about Ex.W.10 [list of workers worked at Cheyyar office] and he does not know as to the number of days worked by the Petitioners which has been mentioned in Exs.W.9 to 13 and further, it is not correct to state that Ex.M.1 the Proceedings Order of the Appellant/Management bearing No.M.S.247 dated 9.10.96 will not bind the Petitioners. 20.In Ex.W.9-Copy of Muster Roll of Chetpet Office of the Writ Petitioner, the Assistant Executive Engineer of T.W.A.D. Board, R.W.S. Sub Division, Chetpet in Serial No.5 there is a reference to the Petitioner-Munusamy that he has worked for 127 days. 21.In Ex.W.11 series the Petitioner-R.Munusamy is reported to have worked for 26 days for the period from 26.5.95 to 25.6.95 and for 30 days for the period from 26.6.95 to 25.7.95 and for 30 days for the period from 26.7.95 to 25.8.95 and in all, he has worked for 86 days. During the aforesaid period, there has been a break of 6 days in all. 22.As per Ex.W.12-Statement in respect of 1st Respondent/ Petitioner-Munusamy for the period from 26.9.1989 till 25.8.1990, he has worked in all for 237 days and has remained absent for duty from 26.2.90 to 25.5.90 and absented himself on 18.6.90, as evident from the said statement. During the period from 26.5.95 to 25.8.95 the 1st Respondent/Petitioner has worked for 86 days. Thus, it is clear from Ex.W.11 and Ex.W.12 that the 1st Respondent/Petitioner has worked for 323 days (237 + 86) in all. 23.Going by Ex.W.12 Statement furnished by the Assistant Engineer of the Cheyyar Office in respect of the 1st Respondent/ Petitioner, he has worked for 237 days for the period from 26.9.1989 to 25.08.1990. 24.In Ex.W.14-Communication dated 10.10.91 of the Inspector of Labour, Tiruvannamalai addressed to the Superintending Engineer of the Tamil Nadu Water Supply and Drainage Board, Vellore and to the Chairman of the Tamil Nadu Water Supply and Drainage Board, Vellore, the 1st Respondent/Petitioner's name is found in Serial No.19. His nature of job is described as Mazdoor and his date of appointment is 1.7.89. As a matter of fact, in Ex.W.14-Communication dated 10.10.91 of the Inspector of Labour, Tiruvannamalai, the Petitioner-R.Munusamy and 14 others have reportedly left from service etc. 25.In Ex.W.15-Communication of the Managing Director of the T.W.A.D. Board, Chennai dated 19.9.96, it is mentioned that 386 https://hcservices.ecourts.gov.in/hcservices/ workers as per Annexure, when they have completed 480 days, they will be made permanent and proper time scale will be given to them and thereafter for every year of work as per Board's Rules annual salary increment notionally will have to be awarded and then the salary will be refixed from 1.8.96 in the minimum scale of pay. A perusal of Ex.W.15-Managing Director's Proceedings dated 19.9.96 together with the Annexure List of N.M.R. Personnel of Northern Region shows that the Serial No.1 to 78 persons names are found therein. But the 1st Respondent/Petitioner's name does not find a place. 26.Though on the side of the 1st Respondent/workman, it is submitted that as per Section 12(3) Settlement under the Industrial Disputes Act, 1947, the 386 workers are agreed to be made permanent by the Writ Petitioner/Management, yet, it is not clear as to whether the Petitioner's name is included in the said Settlement or in Annxure List of N.M.Rs. attached to Ex.W.15-letter dated 19.9.96 of the Managing Director of the Writ Petitioner office. 27.As per Ex.M.1-Board Proceedings Order M.S.No.247, dated 9.10.1990 of the Tamil Nadu Water Supply and Drainage Board, Secretariat, Madras-5 in paragraph vi, it is mentioned hereunder: "that the Executive Engineers shall have powers to engage N.M.Rs only for such works which are not susceptible of measurements viz., for survey and levelling operations, for conducting geophysical, survey etc., for period not exceeding 7 days at a time; that for any special reasons, if the employment of N.M.Rs become necessary for more than 7 days for maintenance of Pilot water supply scheme etc., Prior approval of concerned Chief Engineers should be obtained for engaging N.M.Rs. that even in such cases, the employment of N.M.Rs. should not exceed more than 85 days and that any violation of these instructions shall be dealt with several by imposing Punishment of removal from service without exception." 28.In Ex.M.1-Communication of the Joint Director of the T.W.A.D. Board dated 9.10.90, in last paragraph, it is mentioned as follows: "The Chief Engineers should collect the particulars of appointments made in violation of the Board's instruction with effect from 16.3.1974 and furnish to the Board the name of officers who were responsible for such irregular appointments. Action should also be taken immediately to discharge the Work Charged Establishment Personnel whose services are not required as well as those who were appointed after 31.12.1985." https://hcservices.ecourts.gov.in/hcservices/ 29.In short, the T.W.A.D. Board has issued instructions as per Ex.M.1 dated 9.10.90 pertaining to the Appointment of Work charged Establishment/N.M.R. and in paragraph 2 of the said instructions, it is mentioned thus: "The Board considered the question of stopping the appointment of Work Charged Establishment N.M.R. personnel as also the question of awarding without exception, exemplary punishment, to the extent of removal from service, to the officers who made such appointments or who authorised such appointments. The Board has approved the proposal." 30.As far as the present case is concerned, as per Ex.W.9 Xerox Copy of Muster Roll of the Petitioner's Chetpet Office, the 1st Respondent/Petitioner is reported to have worked for 127 days. On behalf of the Petitioner/T.W.A.D. Board, Ex.W.9 there is a reference to the xerox copy of Register. 1 No.(Page No 1 to 84) and xerox of m books page No. 1) 484 A, 2) 490 A, 3) 737 A, 4) 722 A Total Nos.4. In fact, the Ex.W.9 the xerox copy of Muster Roll of the Petitioner's Chetpet office has been attested by Assistant Executive Engineer of T.W.A.D. Board, Chetpet – 606 801. Ex.W.9 the xerox copy of Muster Roll of the Petitioner's office, Chetpet has been signed by one V.Arunachalam, Assistant Executive Engineer, T.W.A.D. Board, R.W.S. Sub Division, Chetpet. However, before the Tribunal in I.D.No.207 of 1996 one R.Ganaprakasam, Junior Engineer has been examined as M.W.1 on behalf of the Petitioner/T.W.A.D. Board. 31.At this juncture, the Learned Counsel for the 1st Respondent cites the decision of Hon'ble Supreme Court in Management of Standard Motor Products of India Limited V. A.Parthasarathy and another (1986) I LLJ 34 SC, wherein it is held as follows: "In the present case, even if the period of illegal strike is excluded, the number of days during which the workman actually worked under the employer would be found to be more than 240 days. That being so it has to be held that the workmen were in continuous service for a period of one year immediately before the date of closure. The further submission of Shri Pai that the number of days on which the workmen actually worked under the employer would be less than 240 days if Sundays and other holidays for which the workmen were paid wages were excluded has already been answered by us in the case of The Workmen of American Express International Banking Corporation V. The Management of American Express International Banking Corporation in which https://hcservices.ecourts.gov.in/hcservices/ judgment has just been pronounced by us. In the circumstances, both the appeals are dismissed with costs." 32.He also relies on the decision of this Court in Management, Malaysian Airlines, Karumuttu Centre, 498, Anna Salai, Chennai – 35 V. The Presiding Officer, Principal Labour Court, Chennai and another 2007 Writ L.R. 605 at page 606 wherein it is held that 'Labour Court has applied its mind to go into the provisions of Section 25 B and, on a perusal of Ex.M.1, arrived at the proper conclusion that the workman is entitled to reinstatement with all monetary benefits, by holding that the non-employment of the workman by the management is not justified.' 33.He also seeks in aid of the decision of Hon'ble Supreme Court in Workmen of American Express International Banking Corporation V. Management of American Express International Banking Corporation (1985) II LLJ 539 SC wherein it is held hereunder: "The question there was not how the 240 days were to be reckoned; the question was not whether Sundays and paid holiday were to be included in reckoning the number of days on which the workmen actually worked; but the question was whether a workman could be said to have been actually employed for 240 days by the mere fact that he was in service for the whole year whether or not he actually worked for 240 days. On the language employed in Section 2(c) of the Payment of Gratuity Act, the court came to the conclusion that the expression 'actually employed' occurring in Explanation I meant the same thing as the expression 'actually worked' occurring in Explanation II and that as the workmen concerned had not actually worked for 240 days or more in the year they were not entitled to payment of gratuity for that year. They further question as to what was meant by the expression 'actually worked' was not considered as apparently it did not arise for consideration. Therefore, the question whether Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked was not considered in that case. The other cases cited before us do not appear to have any bearing on the question at issue before us." 34.At this stage, this Court worth recalls the decision of Hon'ble Supreme Court in Haryana State Electronics Development https://hcservices.ecourts.gov.in/hcservices/ Corporation V. Mamni AIR 2006 Supreme Court 2427 at page 2428 wherein in paragraphs 12, 13, 14, 15 and 20, it is laid down as follows: "12.However, indisputably, the respondent was appointed on an ad hoc basis. She, although qualified to hold the post of Junior Technician, when the advertisement had been issued for filling up the said post, did not apply therefor. The services of the respondent was terminated as far back as in the year 1992. Even if she is reinstated in her service on an ad hoc basis, her services cannot be regularized in view of a recent Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., [2006 (4) SCALE 197]. Furthermore, she had absented herself for a period of 19 days from 20.1.1992 to 7.2.1992 and for a period of 11 days from 17.2.1992 to 27.2.1992. 13.We, therefore, are of the view that in the peculiar facts and circumstances of this case, interests of justice would be sub-served if in the place of reinstatement with back wages, a lump sum amount is directed to be paid by way of compensation. This order is being passed keeping in view the fact that the respondent has not worked since 1992. The post on which she may have been working must have also been filled up. 14.It is wholly unlikely that respondent in the meantime had not been working anywhere else, since the respondent had not placed any material on record to show that she had not been working. 15.This Court in a number of decisions has categorically held that the relief of reinstatement with full back wages is not to be given automatically. Each case must be considered on its own merit. .... 20.In view of the settled legal position, as noticed hereinbefore, we modify the impugned order by directing that the respondent shall be compensated by payment of a sum of Rs.25,000/- instead of the order for reinstatement with back wages." 35.In the State of Rajasthan V. Sarjeet Singh and another (2006) 8 Supreme Court Cases 508 at page 510 in paragraph 7 to 9 it is observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "7.Furthermore, Respondent No. 1 was appointed for a fixed period. His services might have continued but it appears that the same was to remain in force till the Scheme was completed. 8.We may in the aforementioned backdrop notice the definition of 'retrenchment' as contained in Section 2(oo)(bb) of the Industrial Disputes Act, which is in the following terms: "2(oo) "Retrenchment" means termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include - * * * (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein;.." 9.It is a case which attracts clause (bb) of Section 2(oo) of the Industrial Disputes Act." 36.Apart from the aforesaid decisions, this Court aptly points out the following Decisions: (a)In Pramod Kumar Tiwari V. Hindustan Fertilizers Corporation Limited 1995-Vol.1-L.L.J.-192, it is held as follows: "In the facts and circumstances of the case, the project could be said to be an industry within the meaning of Sec.2(j) of the Act, but was the impugned termination a retrenchment within the meaning of Sec.2(oo) attracting the provisions of Sec.25F of the Act. Termination of service of workman on transfer or closure of an undertaking is treated as "deemed retrenchment" after introduction of Sec.25FFF which provided that compensation shall be payable to workman in cases also of transfer of undertaking or closure, as if the workman had been retrenched. The result is termination due to transfer or closure of undertaking is treated as deemed retrenchment and to such deemed retrenchment provisions of Sec. 25FF & 25FFF, as the case may be, are attracted, but not the provisions of Sec.25F. In the instant case the project is an undertaking. The provisions of Sec.25FFF are squarely https://hcservices.ecourts.gov.in/hcservices/ attracted. In addition to notice pay, compensation at the rate of 15 days average pay for every completed year of continuous service or any part thereof in excess of six months, as provided in Sec.25F (b) read with Sec.25FFF, should have been paid to the petitioner on account of termination. We can direct payment of that money, but the termination in question being under Sec.25FFF was