IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.27605 of 2003 and 4201 of 2010 and M.P.NOs.1 AND 2 OF 2010 The Management of Ryan Tea Division Tamilnadu Tea Plantation Corpn. Ltd., Periya Kallar Post, Valparai Tk., Coimbatore District. ..Petitioner in W.P.No.27605 of 2003 G.Ananthi ..Petitioner in W.P.No.4201 of 2010 Vs. 1.The Presiding Officer, Labour Court, Coimbatore. 2.Ananthi ..Respondents in W.P.No.27605 of 2003 1.The Management of TAN TEA Plantation Corporation Ltd., Coonoor, Nilgiri District. (represented by its Managing Director) 2.The Management of Rayan Tea Division, TAN TEA Plantation Corporation, Periyakallar Post, Valparai Tk. Coimbatore District. ..Respondents in W.P.No.4201 of 2010 W.P.No.27605 of 2003 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari https://hcservices.ecourts.gov.in/hcservices/ to call for the records of the first respondent in ID No.323/99 and to quash its award dated 8.1.2003. W.P.No.4201 of 2010 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the entire records in Reference No.8332/2009/E2, dated 23.01.2010 on the file of the first respondent, quash the same and consequently, to direct the respondents to appoint the petitioner in the post of typist. For Petitioner : Mr.John for M/s.T.S.Gopalan & Co. in W.P.No.27605 of 2003 Mr.G.B.Saravanabhavan in W.P.4201/2010 For Respondents : Mr.John for M/s.T.S.Gopalan & Co. (Takes notice) in W.P.No.4201 of 2010 Mr. J. Saravana Vel for R2 in WP.No.27605/2003 COMMON ORDER The first writ petition is filed by the Management of Ryan Tea Division owned by the Tamil Nadu Tea Plantation Corporation (for short TAN TEA). Aggrieved by the Award passed by the first respondent Labour Court, Coimbatore in I.D.No.323 of 1999, dated 8.1.2003, the present writ petition has been filed. By the impugned Award, the Labour Court directed the reinstatement of the second respondent in a permanent post with service continuity and backwages. 2.The writ petition was admitted on 6.10.2003. Initially, an interim stay was granted. Subsequently, the interim stay was modified on condition that the petitioner Management deposits the entire amount as Awarded by the Labour Court within six weeks. The second respondent filed applications to withdraw the backwages deposited with the labour court, in WPMP No.898 of 2007 and for a direction to pay last drawn wages in terms of Section 17B of the Industrial Disputes Act, 1947, in WPMP No.899 of 2007. This Court directed the second respondent workman to file a calculation memo for the amount due to her by virtue of the Award. 3.It was claimed by her that backwages to be deposited by the management was Rs.1,83,000/-. Her last drawn wages was Rs.1650/-. The arrears of last draw wages starting from October, 2003 when the writ petition was admitted till July, 2007 was worked out to Rs.75,900/-. This petition was finally heard on 2.8.2007. This Court directed Rs.60,000/- being arrears of payment under Section 17B to be paid to the second respondent workman. The petitioner management was also directed to pay last drawn wages at the rate of Rs.1280/- every month. The amount deposited with the labour court was directed to be https://hcservices.ecourts.gov.in/hcservices/ invested in a nationalised bank initially for a period of three years. The workman was given the right to receive quarterly interest on such deposit. The amount deposited was Rs.93,621/- as per the order modified on 22.8.2007. 4.After passing of the Award, the management by an order, dated 25.10.2007 directed reinstatement of second respondent without prejudice to their right and contentions in challenging the Award. Therefore, she was directed to report for duty on 31.10.2007 in the same Ryan Tea Division. The second respondent accordingly joined duty and since then she has been working. By a further order, dated 29.1.2010, the petitioner management conferred her permanent status in terms of Tamil Nadu Industrial Establishments (Conferment of Permanent status) Act, 1981. It was stated in the order that though the second respondent workman had not worked for more than 480 days in a period of two years in terms of Tamil Nadu Act 46/1981 and though she was not eligible for confirmation, taking into account her family welfare and on compassionate grounds as per the order of the Managing Director, TANTEA, dated 5.1.2010, she was made a permanent plantation worker on daily rated basis. She was also put on probation for one year from 1.2.2010. 5.On receipt of the said order, the petitioner wrote a letter to the TANTEA stating that she has been working as a Typist in Ryan Tea Division on muster roll basis from 1992. Since she has been made permanent and having come to know that TANTEA is going to fill up some posts of typists with internal candidates, she should be considered for the said post. She enclosed all relevant certificates including scheduled caste community certificate. As there was no reply for her representation, she came to challenge the notice, dated 23.1.2010 calling for applications from the employment exchange for the post of typists and after setting aside the same, she sought for an appointment in the post of typist, by way of the second writ petition being W.P.No.4201 of 2010. 6.When the second writ petition came up for hearing, on coming to know that the earlier writ petition is pending, the other writ petition was also directed to be posted along with the first writ petition. Notice was directed to be given to the counsel for petitioner management. Accordingly, Mr.John, learned counsel representing M/s.T.S.Gopalan & Co. took notice. In view of the interconnectivity, both the writ petitions were heard together. 7.The facts leading to the Award challenging in the first writ petition are as follows: The petitioner TANTEA is a State owned corporation. The second respondent workman was appointed on temporary basis as typist from 1992 to 1997. From 1.3.1997, she was made as a permanent worker. But, the work was extracted as typist. She took maternity leave on https://hcservices.ecourts.gov.in/hcservices/ 1.4.1997 and gave birth to a male child on 2.5.1997. Subsequent to the birth of a child, her health became complicated after undergoing family planning operation. She extended her leave. She also claimed maternity benefits after making an application before the Inspector of Labour (Woman). However, she was not given employment after the expiry of leave. When she raised a dispute before the Assistant Commissioner for Labour, Conciliation-3, Coimbatore, she was informed by a letter dated 18.4.1998 that the order granting permanent status was cancelled. It was done without any enquiry. 8.Thereafter, on the basis of the failure report given by the Conciliation Officer, dated 16.12.1998, she filed a claim statement before the first respondent Labour Court, dated 15.2.1999. The first respondent labour Court took up the dispute as I.D.No.323 of 1999. The petitioner TANTEA filed a counter statement, dated 03.02.2000. The stand taken by the petitioner management was that she was essentially employed as a casual and for any recruitment for staff cadre will have to be routed through employment exchange. They should also follow the communal roster. The workmen was the daughter of the then Divisional Manager of Ryan Tea Division by name Muthiah. Without informing the relationship between the Divisional Manager and the second respondent, she was given work as a casual worker/typist continuously. The TANTEA had given instruction that no staff in the cadre of typist should be engaged on causal basis. Her engagement was motivated and contrary to the headquarters direction. 9.It was further stated that even after 30.6.1996 when it was stated that no such employment should be there, in order to claim permanency, she was continued. Further, her father had also sent proposal to make her permanent by describing her as Tmt.Ananthi W/o Ganesan in terms of Tamil Nadu Act, 46/1981. She was only engaged on contract basis. Her father was reverted to his parent department which is the Forest Department. Therefore, she was not eligible for any post including reinstatement. 10.Before the Labour Court, on behalf of the second respondent, she examined herself and also examined one Sudalaimuthu as W.W.1 and W.W.2 and on side, 13 documents were filed and marked as Exs.W.1 to W.13. On the side of TANTEE, one Sivakumar was examined as M.W.1 and 13 documents were filed and marked as Exs.M.1 to M.13. Before the Labour Court, it was asserted that she was improperly appointed. Though the TANTEA was directed to file documents relating to the said issue, they have not filed any such document. The Labour Court also held that the workmen had been worked continuously and was eligible to get maternity benefits. If any termination has to be made, it can be done only in terms of the Certified Standing Orders marked as Ex.W.13. Since the second respondent is a permanent worker and went on maternity leave. When she came back, without due notice and without any proceedings, her services were terminated. It was found that since her termination was done contrary to the Standing https://hcservices.ecourts.gov.in/hcservices/ Orders and no enquiry was conducted, her termination was held to be illegal. Therefore, she was eligible for reinstatement with backwages. 11.Mr.John, counsel appearing for M/s.T.S.Gopalan & Co., stated that the second respondent had hidden from the management that she was the daughter of the then Divisional Manager and described her as the wife of one Ganesan. No exception can be taken for such an action on the part of the second respondent. It is the normal circumstance that a woman after her marriage always takes the name of her husband as suffix. Unless in the application form the management TANTEA had asked for details relating of near relatives working in the organisation, it cannot be said that there was any suppression. Though her appointment was not routed through employment exchange, it must be noted that she was only appointed as a causal worker. But because of her technical qualification, her service was utilized as a Typist, that too not for a few weeks, but for over five years. Even if she was improperly conferred any permanent status, the relevant Standing Orders require due procedure for termination of the services of a permanent worker. Immediately upon the refusal for reinstatement, she had raised a dispute. There was also no delay in coming to the court. 12.In the present case, despite opportunity granted to the petitioner TANTEA, they did not justify the termination of the second respondent before the Labour Court with necessary proof. On the contrary, they have failed to produce the documents relating to the appointment. Therefore, in the normal circumstances the relief can be one of reinstatement with backwages, unless the petitioner management pleads that she was working in temporary capacity or that she was not eligible for regulairsation. In fact, subsequent to the filing of the writ petition to avoid payments under Section 17B, she has been reinstated in service and also has been made permanent prospectively. If the contention of the petitioner TANTEA has any basis, they ought not to have reinstated the second respondent in service. If the second respondent cannot even serve them even for a day, then there was no justification to reinstate her though it was done allegedly without prejudice to their right to challenge the award of the labour court. 13.While doing so, they did not seek any order from this court to modify the payment under Section 17B as ordered by this court. They also did not take any permission to confer permanent status on the second respondent. The act of restoring her into service and the subsequent conferment of permanent status is entirely a decision taken by TANTEA. It is too late for them to contend that she is not eligible for any backwages. Therefore, this court is not inclined to entertain the writ petition filed by TANTEA as the Award did not suffer from any illegality or infirmity. https://hcservices.ecourts.gov.in/hcservices/ 14.The writ petition in W.P.No.27605 of 2003 is liable to be dismissed. The second respondent is entitled to withdraw the amounts lying in the deposit with the first respondent Labour Court to the credit of the I.D. Since already backwages have been calculated and a memo was filed and incorporated in the interim order, the second respondent will not be entitled to get any other wages other than what was lying in deposit together with interest if any. 15.Once the Award is held to be valid, the second respondent is deemed to have become permanent as per the provisions of the Tamil Nadu Act, 46/1981. Therefore, the petitioner TANTEA is directed to implement the Award in its entirety within a period of eight weeks and raise the wages payable to the second respondent in terms of the Award and pay the difference if any. 16.With reference to the second writ petition, it must be stated that the petitioner's service has been utilized only as a Typist from 1992 to 1997 and thereafter in the year 2007, she was again reinstated. Further, she has been made permanent on the volition of TANTEA with effect from 1.2.2010. Therefore, they cannot continue to keep her as a mere plantation worker. 17.Mr.John, learned counsel contended that she is not eligible to get the post of Typist as she was not recruited as per recruitment rules. Such an argument cannot be accepted in view of the fact that the petitioner workman had earlier worked for five years as Typist and she was also made permanent subsequently. She had succeeded before the Labour Court. Even pending the writ petition, she has been made permanent. Therefore, the management before going for direct recruitment for the post of Typist, the petitioner must be considered for the said post. 18.Mr.John, learned counsel for the management contended that they are bound by the rules of recruitment. However, this court vide its judgment in S.Jalajakumari and another Vs. Personal Assistant (General) to the Collector and others reported in 2008 (5) MLJ 1073, held that in respect of a Government typist working for more than 15 or 20 years cannot be simply sent out only on the ground that they were appointed under Rule 10(a)(1) and they had failed to pass limited competitive examination conducted by the TNPSC. In that case, after distinguishing the case of Secretary, State of Karnataka Vs. Uma Devi(3) reported in 2006 (4) SCC 1, the division bench, presided by P.K.Misra, J. (as he then was), directed regularisation of several typists. 19.The petitioner is also entitled to be considered for the post of Typist before any recruitment is made directly from the open market. The TANTEA should pass an appropriate order in respect of the petitioner's representation in accordance with law and in the light of the above directions within a period of four weeks from the date https://hcservices.ecourts.gov.in/hcservices/ of receipt of copy of this order and communicate the same to the petitioner. 20.In the light of the above, W.P.No.27605 of 2003 will stand dismissed as stated above. W.P.No.4201 of 2010 will stand disposed of with the above directions. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Presiding Officer, Labour Court, Coimbatore. + 1 c.c. to Mr. G.B. Saravanabhavan, Advocate. S.R.No.17759. + 1 c.c. to Mr. J. Saravana Vel, Advocate. S.R.No.17545. + 2 c.cs. to M/s. T.S.Gopalan & Co. Advocate. S.R.Nos.17485 & 17487. W.P.Nos.27605 of 2003 and 4201 of 2010 RSI (CO) GSK 29.03.2010. https://hcservices.ecourts.gov.in/hcservices/