IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.Nos.7689 of 2003 & 21976 of 2004 and W.P.M.P.Nos.38952,38953 & 26538 of 2004 1.H.Danesh 2.P.Pakkiriswamy 3.C.Ramanan 4.P.Arun Ravi 5.N.Ashok Kumar 6.A.Mahendran 7.K.Madanagopal 8.M.Balamurugan 9.G.Venkatesalu 10.E.Parvathy 11.G.Krishnavani .... Petitioners in W.P.No.7689 of 2003 1.T.Krishnamurthy 2.D.Ramesh 3.M.Shankar Sha 4.K.Selvaraj .... Petitioners in W.P.No.21976 of 2004 Vs. 1. Union of India rep by its Secretary Ministry of Information and Broadcasting New Delhi 2. Director General Prasar Bharathi Broadcasting Corporation of India Doordarshan, Mandi House, New Delhi 3. The Director Prasar Bharathi Broadcasting Corporation of India Doordarshan Kendra Swami Sivananda Salai Chennai-600 005 https://hcservices.ecourts.gov.in/hcservices/ 4. The Government of India rep by its Secretary Ministry of Labour Shram Mantralaya New Delhi ... respondents in both writ petitions. These Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorarified Mandamus as stated therein. For Petitioners : Mr. N.G.R.Prasad for M/s Row and Reddy For Respondents : Mr.M.Gopikrishnan Central Govt.Standing Counsel C O M M O N O R D E R The petitioners have filed these writ petitions praying for issuance of a writ of certiorarified mandamus, to call for the records relating to order of the third respondent Kendra dated 22.1.2003 bearing reference No.6(3)99/7908/HC/MAS and to quash the same and consequently direct the third respondent not to dispense with their services except for any misconduct, pending their claim for regularisation in the third respondent Kendra before the appropriate forum under the Industrial Disputes Act 1947. 2.The stand taken by the rival parties in W.P.No.7689 of 2003 is also the same in regard to the other writ petition viz., W.P.No.21976 of 2004 and the petitioners in W.P.No.21976 of 2004 also stand on the same footing as that of the petitioners in W.P.No.7689 of 2003 and the same contentions are put forth by the parties in respect of W.P.No.21976 of 2004, a common order is passed in these two writ petitions. 3. The case of the petitioners in both petitions is that they are working in the third respondent/ The Director,Prasar Bharathi Broadcasting, Corporation of India, Doordarshan Kendra,Swami Sivananda Salai, Chennai-600 005 from the year 1987-1992 and 1989 -1992 respectively as casuals and they have also been reportedly engaged as casuals by the third respondent after the year 1992 and till date, they are working with the third respondent. It is the stand of the petitioners that they have worked more than 240 days in every calendar year and they claimed temporary status in W.P.No.7908 of 1999 by means of an office memorandum dated 1.9.1993 issued by the Department of Personnel and Training. However,the said writ petition has been dismissed on 22.8.2002 based on a https://hcservices.ecourts.gov.in/hcservices/ recent Judgment of the Supreme Court in Civil Appeal No.3168 of 2002(Union of India-v- Mohan Pal reported in 2002(4)SCC 573). However, the petitioners have been permitted to make a representation for regularisation and accordingly, they have submitted their representation on 27.8.2002 and the third respondent has passed an order on 22.1.2003 inter alia stating that the petitioners are not found eligible for grant of temporary status/regularisation. 4. The main contention put forth on behalf of the petitioners is that the petitioners are entitled for regularisation in their service,inasmuch as they have been put in ten to fifteen long years of service and their claim rest upon the fact that if a person has put in long years of service, their claim for regularisation should be favourably considered and as a matter of fact, when the petitioners are working as casuals for the last ten to fifteen years then they are entitled to be regularised as per the provisions of Industrial Disputes Act 1947 and therefore, the petitioners have filed the present writ petitions praying for a direction to the third respondent not to dispense with their services except for any misconduct pending their claim for regularisation in the third respondent/Doordarshan Kendra before the appropriate forum under the Industrial Disputes Act 1947. 5. The case of the respondents is that the Honourable Supreme Court in Civil Appeal No.3168 of 2002(Union of India-v- Mohan Pal reported in 2002(4)SCC 573) in the Judgment dated 29.4.2002 has held that' the scheme of 1.9.1993 is not an ongoing Scheme and the 'temporary status can be conferred on the casual labourers under that scheme only on fulfilling the conditions incorporated in Clause 4 of the Scheme, namely, they should have been casual labourers in employment as on the date of the commencement of the Scheme and they should have rendered continuous service of at least one year ie., at least 240days in a year or 206 days( in case of offices having 5 days a week) and since the petitioners have not satisfied the two conditions referred to earlier as on 1.9.1993, they have been found not eligible for the grant of temporary status and the claim of the petitioners that their services should not be dispensed with pending their claim for regularisation under the Industrial Disputes Act 1947 is not sustainable either in law or on facts of the case and one D.Selvaraj alone has been engaged in the year 1987 as casual and others have been engaged as casuals from the subsequent years and it is not correct to state that the petitioners have worked for 240 days in every calendar year. 6. Added further, it is the specific case of the respondents that as per the conferment of the Temporary Status Rules 1993, a casual labourer should be on the rolls of the establishment on 1.9.1993 and should have worked for 206 days in the case offices observing six days a week system and notwithstanding the fact that https://hcservices.ecourts.gov.in/hcservices/ the petitioners have been on the rolls of the establishment as on 1.9.1993,none of them have worked for 240 days in a calendar year and resultantly they are not eligible to claim the benefit under the conferment of Temporary Status Rules,1993. 7. It is not in controversy that the petitioners in both writ petitions have given representation on 27.8.2002 addressed to the third respondent claiming regularisation of their services since they are engaged and continued as casual for about 10 to 15 years , even though, they have been doing regular nature of work, in the said representation, the petitioners have made mention of that their work is perennial nature and they have a right to be regularised in the post, they are working for all these years. 8. It is represented on behalf of the petitioners before this Court that during the pendency of these two writ petitions, the petitioners have made a representation to the third respondent seeking regularisation of their services and the same has been forwarded to the second respondent. It transpires that the third respondent's Administrative Officer, on behalf of the Director has addressed a communication dated 30.3.2008 to the second respondent wherein the second respondent has been requested to examine the feasibility of regularising the services of 13 casual labourers mentioned in the said letter as one time measure on the lines of the DOPT OM and to communicate the decision at an early date. The second respondent, in turn, by his reply dated 28.10.2009/9.11.2009 has informed the third respondent ' that the request of regularisation in respect of these casual labourers cannot be acceded to as they do not fulfill the conditions laid down in the DOP &T Scheme for casual Labourers, 1993 or the DOP &T OM dated 11.12.2006 and also directed to disengage all casual employees who are not eligible for regularisation according to any of the schemes in implementation in Doordarshan'. 9. At this juncture, this Court pertinently points out the decision reported in Surendra Prasad Khugsal-v- Chairman, M.M.T.Corporation of India and another(1993(67) FLR 868) : 1993 LLR 847) wherein certain workers in public sector undertakings have demanded and raised a dispute for payment of antecedent benefits and pay scales on par with the Central Government Employees and since these facts have been disputed, it is held by the Honourable Supreme Court that it cannot be determined in proceedings under Article 32 of the Constitution of India and hence the dispute between the parties has been ordered to be referred to the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes Act, 1947. 10. On a careful consideration of respective contentions and taking note of the very important fact that the petitioners are reportedly working as casual for more than 10 to 15 years in a https://hcservices.ecourts.gov.in/hcservices/ different capacities with the third respondent and since the petitioners claim regularisation of their services as per provisions of the Industrial Disputes Act 1947 which has been repudiated by the respondents to the effect that they are not entitled to be regularised then a moot question that arises for rumination is that whether the petitioners are entitled to be declared as regular employees of the third respondent and for deciding this issue, this Court opines that necessarily a reference ought to be made by the fourth respondent under Section 10 of the Industrial Disputes Act to the appropriate forum viz., Central Government Industrial Tribunal, Chennai by framing and referring the dispute involved between the parties, within a period of four weeks from the date of receipt of a copy of this order and on such representation being made,the Central Government Industrial Tribunal, Chennai shall proceed to adjudicate the reference in accordance with law and pass an award within a period of eight weeks from the date of receipt of the order of reference by the fourth respondent. 11. It is made clear that the third respondent is directed to maintain the present status of the petitioners/casuals on the same terms and conditions as on date without prejudice to the contentions of the respective parties. It is brought to the notice of this Court that the petitioners have filed two miscellaneous petitions viz., W.P.M.P.Nos. 38952 and 38953 of 2004 praying for issuance of a direction to the second and third respondents to sanction the adhoc bonus to them as per the office memorandum dated 30.9.2004 of the Ministry of Finance, New Delhi. This Court is of the considered view in regard to the claim of the sanction of adhoc bonus also, it is open to the parties to raise this plea before the appropriate forum and the fourth respondent is also directed to consider and refer the same, while referring the dispute of regularisation to the Central Government Industrial Tribunal by means of a composite single reference and upon such reference being made, the Central Government Industrial Tribunal shall consider and dispose of the same in accordance with law. 12. With the above observations, these writ petitions are disposed of. NO costs. Consequently, connected W.P.M.P.Nos.26538 of 2004 ,38952 and 38953 of 2004 are closed. sg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary Union of India Ministry of Information and Broadcasting New Delhi 2. The Director General Prasar Bharathi Broadcasting Corporation of India Doordarshan, Mandi House, New Delhi 3. The Director Prasar Bharathi Broadcasting Corporation of India Doordarshan Kendra Swami Sivananda Salai, Chennai-600 005 4. The Secretary, The Government of India Ministry of Labour Shram Mantralaya New Delhi. + 2 ccs to Mr.M.Gopikrishnan, Advocate SR No.1012 1013 + 2 ccs to M/s.Row & Reddy, Advocate SR No.1883, 1882 W.P.Nos.7689/2003 etc., AKR(CO) SR/19.1.2010 https://hcservices.ecourts.gov.in/hcservices/