IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.03.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.22487 and 25529 of 2009 and M.P.No.1 of 2009 in W.P.No.25529 of 2009 Thamilaga Thozhichalai Matrum Pothu Thozhilalargal Sangam Rep. By its President, Mr.P.Arul Mudi. ... Petitioner in W.P.No.22487 of 2009 1.Union of India Represented by Secretary to Government, Ministry of Agriculture, New Delhi – 110 001. 2.The Regional Officer, Southern Regional Office, Animal Quarantine and Certification Services, Pallikaranai Village, Chennai – 601 302. ...Petitioner in W.P.No.25529 of 2009 Vs 1.Union of India Represented by Secretary to Government, Ministry of Agriculture, New Delhi – 110 001. 2.The Regional Officer, Southern Regional Office, Animal Quarantine and Certification Services, Pallikaranai Village, Chennai – 601 302. 3.The Deputy Chief Labour Commissioner (C) O/o the Deputy Chief Labour Commissioner (C) Shastri Bhavan, 5th Floor, Chennai – 600 006. ... Respondents in W.P.No.22487 of 2009 1.Thamilaga Thozhirchalai Matrum Pothu Thozhilalargal Sangam Rep. By its President, Mr.P.Arul Mudi. https://hcservices.ecourts.gov.in/hcservices/ 2.The Presiding Officer, Central Government, Industrial Tribunal cum Labour Court, Chennai – 600 104. ...Respondents in W.P.No.25529 of 2009 W.P.No.22487 of 2009 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus, to direct the 1st and 2nd respondent to implement the terms of the Award dated 17.07.2009 in I.D.No.28 of 2008 passed by the Hon'ble Central Government Industrial Tribunal cum Labour Court, Chennai. W.P.No.25529 of 2009 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records relating to I.D.No.28 of 2008 on the file of the second respondent Tribunal and to quash the award dated 17.07.2009 passed by the 2nd respondent Tribunal in I.D.No.28 of 2008. For petitioner W.P.No.22487/2009 : Mr.M.Gnanasekar W.P.No.25529/2009 : Mr.A.S.Chakravarthy For Respondents W.P.No.22487/2009 : Mr.A.S.Chakravarthy W.P.No.25529/2009 : Mr.M.Gnanasekar C O M M O N O R D E R The first writ petition (W.P.No.22487/2009) is filed by a Trade Union, seeking for a direction to implement the the Award in I.D.No.28 of 2008 dated 17.07.2009 passed by the Central Government Industrial Tribunal-cum-Labour Court at Chennai. (for short CGIT). 2. When the matter came up on 04.11.2009, this Court directed the Central Government Standing Counsel to ascertain from the respondents regarding the implementation of the Award. Subsequently, the matter was adjourned. 3. The second writ petition (W.P.No.25529/2009) came to be filed by the Union of India, Ministry of Agriculture and the Southern Regional Officer of the Animal Quarantine and Certification Services, Pallikaranai Village, challenging the said Award. When the writ petition came up for admission on 10.12.2009, it was directed to be posted along with the earlier writ petition filed by the Trade Union. 4. In view of the interconnectivity between the two writ petitions, they were heard together and a common order is being passed. https://hcservices.ecourts.gov.in/hcservices/ 5. For the sake of convenience, the workers, who were represented by Trade Union are referred to as the Trade Union and the Quarantine Officer, Southern Regional Office is referred to as the Management. 6. By the impugned Award, the CGIT held that the workmen covered by the reference were entitled for regularisation from the date on which they had completed 240 days' of service within a period of 12 months. 7. The casual labourers represented by the Trade Union were engaged in the Farm run by the Management. It represented the case of four workmen, who were employed from 1982 to 1985 in various works in the Farm. According to the Trade Union, they had put in more than 20 years' of service and the nature of work performed by them was similar to Group 'D' posts. They were representing about their regularisation for number of years. Infact, earlier they had moved the Central Administrative Tribunal with O.A.No.184 of 1988. As per the order of the CAT dated 05.06.1989, they were getting pay equivalent to that of the Group 'D' employees. But their services were not regularised. 8. Therefore, the Trade Union, representing the workmen raised a dispute before the Conciliation Officer. On a failure report being sent to Government of India, the Central Government, (Ministry of Labour) vide order dated 05.06.2008 referred the following issues for adjudication by the first respondent CGIT. "i) Whether the management of Animal Quarantine Certification Services comes within the ambit of "Industry" under the I.D.Act,1947? ii)If so, whether the demand of Tamizhanga Thozhrchalai Matrum Pothu Thozhilalargal Sangam for regularization of S/Shri M.Pitchai Kannu, T.A.Padmini, G.Narayanaswamy and S.Narasimman is legal and justified? iii)To what relief these workmen concerned are entitled?" 9. On receipt of the reference, the CGIT took up the dispute as I.D.No.28 of 2008 and issued notices to the parties. The Trade Union filed its claim statement dated Nil (July 2008) and the Management filed their counter statement dated Nil (August 2008). Before the Tribunal, on behalf of the Trade Union, one S.Narasimman was examined as W.W.1. On the side of the Management, Dr.Rajiv Khosla was examined as M.W.1. The Trade Union filed 21 documents which were marked as Exs.W1 to W21. The Management filed 5 documents and they were marked as Exs.M1 to M5. 10. The stand taken by the Management in the counter statement was that the dispute cannot be said to be a collective dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. The Trade Union representing the workmen does not have a representative capacity. In paragraph 5 of the counter statement, https://hcservices.ecourts.gov.in/hcservices/ the length of service of the four workmen covered by the reference were admitted. But it was stated that they were casual and temporary labourers and they cannot come within the purview of the I.D.Act. The workmen, who were having temporary status are entitled to benefits under "Casual Labourers (Grant of Temporary Status and Regulation" Scheme of Government of India, 1993. They cannot be made as Group 'D' employees and the Management cannot confer any regularization. They also demanded the objection raised by them to be tried as a preliminary issue. 11. The Tribunal held that the term 'industry' defined under Section 2(j) is comprehensive definition and it included the services rendered by the Workmen in the Quarantine Certification Services. With reference to the regularization, the CGIT held that the concerned workmen had put in 25 years and they were in the fag end of their services. In similar circumstances, in the case of Central the Cattle Breeding Farm at Alamatti, this Court confirmed the Award ordering regularisation of the workmen. Even Dr.Rajiv Khosla, M.W.1 admitted that it was undesirable to keep workmen on adhoc basis. He also stated that regularization could not be made because of want of sanctioned vacancy. The deposition of M.W.1 is as follows:- "The establishment is situated within an area of 5.47 acres. Manpower is needed for cleaning, sweeping and also washing the premises. Sometimes we engage outside for the cleaning, sweeping work, depending on the workload, in addition to the regular employee. The petitioner are performing general duties of the office. Our office is a permanent establishment. The Central Cattle Breeding Frame is a sister concern of ours under the same Ministry. As per EX.W3, the petitioner underwent training in typewriting and laboratory attendant in 1998. In other establishments, there is no casual labors engaged and whenever it is needed persons are engaged and discharged when the need is over. In the second Respondent Office, the post of Safawala is required. There is no post of Animal Attendant is needed to maintain the duties. There is no surplus posts in any of our establishments. For want of sanction of regular posts, the petitioners are kept as temporary." 12. The Tribunal rejected these contentions. Though the dictum of the Supreme Court in Secretary, State of Karnataka and Others v. Umadevi (3) and others reported in (2006) 4 SCC 1 was pressed into service. The CGIT found that the recruitments were made before Umadevi's case. The post held by them did not come within the purview of the Employment Exchanges (Compulsory Notification of Vacancies) Act. The Court also found that there was a legitimate expectation on the part of the employees. It is only because the Award was not implemented, the workmen filed the writ petition for a direction to implement the Award and as a counterblast the Union of India had filed the writ petition challenging the Award. https://hcservices.ecourts.gov.in/hcservices/ 13. Mr.A.S.Chakravarthy, learned Central Government Standing Counsel pressed into service the decision of the Supreme Court in National Fertilizers Ltd., and others v. Somvir Singh reported in (2006) 5 SCC 493. It is for the purpose of contending that regularization is not a mode of recruitment. If an appointment is made without following Recruitment Rules, the same will be a nullity and the question of confirmation of an employee upon expiry of probation will not arise. He also wanted to state that if the initial appointment was illegal, then no subsequent regularisation can be sought for. 14. For the very same purpose, the learned CGSC also relied upon the judgment of the Supreme Court in Municipal Corporation, Jabalpur v. Om Prakash Dubey reported in (2007) 1 SCC 373. In that case, after referring to Umadevi's case (cited supra) the Court made a distinction between irregular appointments and illegal appointments. In cases of illegal appointment, no relief can be given to any one and no departure from the Rule can be made. It is not clear as to how these judgments will be of any assistance to the Management. 15. In the present case, the workmen were appointed long before the decision of the Constitution bench in Umadevi's case came. Infact Umadevi's case itself makes a departure by directing its prospective application and also onetime measure for regularising the services of existing workmen. In the present case, the workmen were appointed on an adhoc basis and the post held by them do not come within the purview of employment exchange. Even in his evidence M.W.1 Dr.Rajiv Khosla stated that only because of want of sanction, they were not regularised. The CGIT considered their services is more than 2 ½ decades and they may reach the age of superannuation any time and hence directed their regularisation in the post. It was on the ground that they were working there continuously as admitted by the Management and also that there was a legitimate expectation in them to get permanency. In identical circumstances, in the Central Cattle Breeding Farm, this Court upheld an Award directing regularization of workmen. The Award also become final as the writ petitions filed against them were rejected by this Court. 16. In the Vth Schedule to the Industrial Disputes Act, Item 10 prohibits an employer from engaging the workmen as 'badlis', 'casuals' or 'temporaries' and to continue them as such for years together with the object of depriving them of the status and privileges of permanent workman. A commission of an unfair labour practice has been prohibited under Section 25-T of the I.D.Act. Any commission of 'unfair labour practice' will be visited with a penalty under Section 25-U of the I.D.Act. 17. In identical circumstances, the Supreme Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana reported in (2009) 8 SCC 556, upheld the Award of the Industrial Court in Mumbai in which the dictum in Umadevi's case was distinguished. https://hcservices.ecourts.gov.in/hcservices/ 18. Therefore, the Award of CGIT does not suffer from any illegality or infirmity. Hence, W.P.No.25529 of 2009 stands dismissed and the Award in I.D.No.28 of 2009 dated 17.07.2009 stands upheld. No costs. The connected miscellaneous petition stands closed. 19. In view of the Award being upheld, the writ petition filed by the Trade Union in W.P.No.22487 of 2009 directing the implementation of the Award is allowed. No costs. The Management is directed to implement the Award within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Secretary to Government, Union of India Ministry of Agriculture, New Delhi – 110 001. 2.The Regional Officer, Southern Regional Office, Animal Quarantine and Certification Services, Pallikaranai Village, Chennai – 601 302. 3.The Deputy Chief Labour Commissioner (C) O/o the Deputy Chief Labour Commissioner (C) Shastri Bhavan, 5th Floor, Chennai – 600 006. 1 cc To Mr.M.Gnanasekar, Advocate, SR.20506 1 cc To Mr.A.S.Chankravarthy, Advocate, SR.20859 W.P.Nos.22487 and 25529 of 2009 RSI(CO) sra 08/04/2010 https://hcservices.ecourts.gov.in/hcservices/