IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.09.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.Nos.6764 of 2007 and 4098 of 2005 & W.P.M.P.Nos.4557, 22898 of 2005 & W.P.M.P.No.18703 of 2006 K.Kalyana Sundaram ... Petitioner in W.P.No.6764/2007 & 2nd respondent in W.P.No.4098/2007 The Management Mailaduthurai Municipality Mailaduthurai ... Petitioner in W.P.No.4098/2005 Vs. The Commissioner Mailaduthurai Municipality Mailaduthurai ... Sole respondent in WPNo.6764/2007 The Presiding Officer The Labour Court Cuddalore ... 1st respondent in W.P.No.4098/2007 PRAYER IN W.P.No.6764 OF 2007: Writ Petition came to be numbered under Article 226 of the Constitution of India for issuance of writ of Mandamus by way of transfer of O.A.No.255 of 2002 (W.P.No.6764 of 2007) to issue a direction in directing the respondent to post the applicant in the regular time scale of post based on his eligibility as per G.O.Ms.No.125, MA & WS Department, dated 27.05.1999 by taking his continuity N.M.R. Service with effect from 01.04.1991, as per the Judgment made in I.D.No.38 of 1997 by the Labour Court, Cuddalore, dated 23.03.1999, and consequently to pay all service and monetary benefits to the petitioner. PRAYER IN W.P.No.4098 OF 2005: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the award of the first respondent in I.D.No.38 of 1997 dated 23.03.1999 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in W.P.No.6764 of 2007: Mr.P.I.Thirumoorthy For Respondent in W.P.No.6764 of 2007 : Mrs.G.Devi For Petitioner in W.P.No.4098 of 2005: Mrs.G.Devi For Respondents in W.P.No.4098 of2005 : Mr.S.Sounthar, for R-2 C O M M O N O R D E R The Original Application in O.A.No.255 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as "the Tribunal") is now Writ Petition in W.P.No.6764 of 2007 before this Court. 2. Heard Mr.P.I.Thirumoorthy, learned counsel for the petitioner in W.P.No.6764 of 2007, Mrs.G.Devi, learned counsel for the respondent Municipality and learned counsel for the petitioner Municipality in 4098 of 2005, and Mr.S.Sounthar, learned counsel for the second respondent in W.P.No.4098 of 2005. 3. Since the issues involved in O.A.255 of 2002 (W.P.No.6764 of 2007) and W.P.No.4098 of 2005 are connected, a common order is passed in both the matters. 4. The petitioner in W.P.No.6764 of 2007 and the second respondent in W.P.No.4098 of 2005, was a N.M.R workman employed by Mailaduthurai Municipality, from 01.04.1991. While so he was abruptly terminated from service on 23.08.1996 without any written order. The petitioner took-up his non-employment before the Labour Court, Cuddalore in I.D.No.38 of 1997. The Labour Court, Cuddalore, passed a detailed award dated 23.03.1999 declaring that the non employment of the petitioner was not justified and directed the Municipality to reinstate the workman with continuity of service, but without back wages. 5. The workman filed C.P.575 of 2003 in I.D.No.38 of 1997 claiming wages and other benefits as per the award, since the Municipality failed to comply with the award. The Municipality filed a counter in C.P.575 of 2003 contending that the claim petition was belated and deserves to be dismissed for delay and latches. In the meantime, the workman filed O.A.255 of 2002 (W.P.No.6764 of 2007) praying for regularisation of his service based on G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999, in view of the judgment of the Labour Court dated 23.03.1999 in I.D.No.38 of 1997 and for consequential direction to https://hcservices.ecourts.gov.in/hcservices/ pay arrears pursuant to the regularisation. Since G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999 granted the benefit of regularisation of services of all NMR workmen, who were on service as on 31.12.1996, he sought for regularisation of his services, under G.O.Ms.No.125 read with the judgment of the Labour Court. 6. When the Municipality faced the claim petition in C.P.No.575 of 2003 in Labour Court and O.A.No.255 of 2002 before the Tribunal, the Municipality filed W.P.No.4098 of 2005, to quash the award dated 23.03.1999 of the Labour Court, Cuddalore in I.D.No.38 of 1997. In this W.P.No.4098 of 2005, the workman is arrayed as the second respondent and the Labour Court is shown as the first respondent. For the sake of convenience, the workman is referred as 'the petitioner' and the Municipality as 'the respondent', hereafter. 7. The petitioner is entitled to regularization as claimed in W.P.No.6764 of 2007, only if the award of the Labour Court in I.D.No.38 of 1997 is sustained and W.P.No.4098 of 2005 preferred by the respondent Municipality is rejected. 8. Hence, firstly, it has to be seen whether the award of the Labour Court, Cuddalore, in I.D.No.38 of 1997 is sustainable or not. 9.The writ petition challenging the award deserves be dismissed, on the ground of inordinate delay in approaching this court. The Municipality, which pleaded that the claim petition of the workman under Section 33 (C) (2) of the Act, as belated, could not approach this Court after six years of passing of the award. Paragraph 3 of the counter in C.P.575 of 2003 of the respondent is extracted here under: 3. The date of award is 23.03.1999. The petitioner ought to have filed his C.P. within one year from the date of award as per the provisions of Proviso clause of Sec.33 (c)(1) The present petition is a time barred one and is liable to be dismissed in liminine. The petitioner has no locus standi to file the present petition. The respondent approached this court, only after the petitioner filed C.P.No.575 of 2003 claiming wages under the award and also filed O.A.No.255 of 2002, claiming regularization under G.O.Ms.No.125. Hence, on the ground of inordinate delay alone, the writ petition No.4098 of 2005 deserves to be dismissed. 10. Furthering, even on merits, the writ petition No.4098 of 2005 fails for the following reasons. https://hcservices.ecourts.gov.in/hcservices/ The Labour Court recorded its finding on facts that the termination of the petitioner amounts to retrenchment under Section 2 (00) of the I.D. Act and that the respondent failed to comply with Section 25 (F) of the Industrial Disputes Act and and therefore the termination of the petitioner is void abinitio. The Labour Court also recorded a finding on fact that petitioner is entitled to permanency under the Industrial Establishments (Conferment of Permanent Status to Workman) Act, 1981, on his completion of 480 days of work in two years of service. The Labour Court also further rejected the argument advanced by the municipality that the petitioner was terminated pursuant to a circular issued by the Commissioner for Municipal Administration directing the respondent to terminate the service of the persons, who were appointed irregularly, on the ground that the same was not pleaded in the counter statement filed by the respondent. 11. In view of the aforesaid categorical findings recorded by the Labour Court, no fault could be found in the award declaring non employment of the petitioner as not justified. Further, the result of the non compliance with the mandatory conditions imposed under Section 25 (F) of the I.D. Act makes the termination void, as held by a Constitution Bench of the Hon'ble Apex Court in the case of PUNJAB L.D. & R.C. LTD ETC., ETC., Vs. P.O. LAB COURT, ETC., ETC., reported in 1990 II L.L.J. 70 and a Division Bench of this Court in the case of THE PRE. SRI. RAN.CO-OP.U.B.LTD., Vs. THE P.O. L.C., MADURAI, K.NAGARAJAN, reported in 1996 II. L.L.J. 216. 12. At this juncture, the learned counsel for the petitioner has brought to the notice of this Court that a workman gave up the back wages and the award depriving back-wages was passed only by way of concession / consent. The learned counsel has brought to my notice, the following passage in the award in support of his submission, "kDjhuUf;F bjh j rh gphpt[ 25 (vg;) d; goahd mwptpg;ngh. mwptpg;g[f;Fg; gjpyhd rk;gsnkh ,Hg;gPnlh tH';ftpy;iy vd;gJk; kWf;fg;gltpy;iy mjdhy; nkw;go Ml; Fiwg;g[g;gzp ePf;fk; bry;yj; jf;fjpy;iy vd;gnjhL ,y;yh epiyia cilaJ vd;Wk; Kot [bra;ag;gLfpwJ ,Ug;gpDk;. ve;j NH;epiyapy; kDjhuiu vjph;kDjhuh; eph;thfk; gzpePf;fk; bra;jpUf;fpwbjd;gijf; fUj;jpy; bfhz;L ghh;f;Fk;nghJgpd; rk;gskpd;wp Mdhy; gzpj; bjhlh;r;rpa[ld; kDjhuiu kPz;Lk; gzpapy; mkh;j;j ntz;Lbkd;W cj;jutpl;Lj; jPh;tk; tH';Ftnj epahakhdJ vd;gjhf ,Ujug;gpYk; thjj;jpd; nghJ xj;Jf;bfhs;sg;gLfpwJ/" The learned counsel for the petitioner-workman submits that when the respondent Municipality secured an award depriving back wages, by way of concession, the respondent is not justified in approaching this court to quash the award. The said submission of the learned counsel for the petitioner, supported by the aforesaid passage of the Labour Court, could not be simply brushed aside. https://hcservices.ecourts.gov.in/hcservices/ 13. Since this court has come to the conclusion that the award of the Labour Court, Cuddalore, in I.D.No.38 of 1997 is sustainable, the termination of service of petitioner from 23.08.1986, vanishes in the eye of law. In such an event, the petitioner is entitled to the benefits of G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999. As per the G.O., if the N.M.R is in service as on 01.10.1996 he is entitled to regularisation and the benefits are payable pursuant to regularization. Moreover, his juniors who were appointed as N.M.R's subsequent to him, were regualrised, pursuant to G.O.Ms.No.125. 14. In these circumstances, W.P.No.4098 of 2005 is dismissed and W.P.6764 of 2007 is allowed and the respondent is directed to reinstate the petitioner and to regularise his services as per G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999, with arrears of pay payable on such regularisation, within eight weeks from the date of receipt of the copy of the order. No costs. rns Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Management Mailaduthurai Municipality Mailaduthurai 2. The Commissioner Mailaduthurai Municipality Mailaduthurai 3. The Presiding Officer The Labour Court Cuddalore + 1 cc to Mr. S.Sounther, Advocate SR.45430 + 1 cc to Mr. V. Raghupathi Advocate SR.45637 + 1 cc to Mr. P.I. Thifumoofghy, Advocate SR.46426 W.P.Nos.6764 of 2007 and 4098 of 2005 MSM(CO) EU 24.09.2009. https://hcservices.ecourts.gov.in/hcservices/