IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.9166 of 2003 S.Janakiraman .. Petitioner Vs 1.The Presiding Officer, Labour Court, Vellore. 2.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Section, 75th Cross Street, Gandhi Nagar, Vellore - 7 .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records from the files of the 1st Respondent in I.D.No.206 of 1996 and quash its impugned common Award made therein dated 24.06.2002 insofar as the Petitioner is concerned inasmuch as the 1st Respondent has denied the claim of the Petitioner for reinstatement in service, with continuity of service, with back wages and with all other attendant benefits and to award costs. For Petitioner : Mr.K.M.Ramesh For 1st Respondent : Labour Court For 2nd Respondent : Mrs.Sudharshanasundar ORDER The Petitioner has filed the present Writ Petition in seeking the relief of Writ of Certiorari in calling for the records from the file of the 1st Respondent/Labour Court, Vellore in I.D.No.206 of 1996 and to quash the Award dated 24.06.2002. 2.The 1st Respondent/Labour Court, Vellore, while passing the Award dated 24.06.2002 in I.D.No.206 of 1996, has, among other things, observed that 'the Writ Petitioner/Petitioner as per Ex.W.9 has worked for 61 days, as per Ex.W.10 has worked for 504 days as https://hcservices.ecourts.gov.in/hcservices/ stated in the written argument. But, on perusal of Ex.W.10, it is shown that the Petitioner has worked for 61 days and viewed in that perspective, since it is not to be seen that the Petitioner has worked for 240 days in a year, he cannot be ordered to be reinstated and resultantly, passed an Award to that effect.' 3.The Petitioner in I.D.No.206 of 1996 on the file of 1st Respondent/Labour Court, Vellore has averred that he has been appointed and posted as Valve Operator and Night Watchman on 22.08.1988 in the 2nd Respondent/Tamil Nadu Water and Drainage Board Office at Sathampoondi and he has been in-charge of Mazhiyur, Singampoondi and Sathampoondi, on a daily wage of Rs.14.25 paise. On 29.06.1990 he has been appointed as a Daily Wage Coolie. He has been paid a monthly salary and has been put in-charge of Mazhaiyur, Singampoondi and Sathampoondi. His daily wage has been enhanced from 29.06.1990 to a sum of Rs.22/- from 14.25 and he has been paid in lumpsum every month. 4.The case of the Petitioner is that the 2nd Respondent/Tamil Nadu Water and Drainage Board, has been maintaining an attendance register in respect of the Petitioner. In 05.09.1990 he has been transferred from Mazhaiyur to Cheyyar Co-operative Drinking Water Scheme Station and he has been working there till 28.9.90. On 28.9.90 the Petitioner has been transferred from Cheyyar to Mazhaiyur Co- operative Drinking Water Scheme and he has been working upto 26.12.1990. On 26.12.1990 he has been removed from service without any reason all of a sudden. He has been terminated from service without any notice, or justification. There has been no charge or defect on his part in performing his duties. Even before the Labour Officer, the 2nd Respondent/Tamil Nadu Water Supply and Drainage Board has not appeared. Before his removal, no notice of termination or valid enquiry has been conducted against him. His termination of service is against the principles of natural justice and therefore, the same is an invalid one. 5.The 2nd Respondent/T.W.A.D. Board, in its counter to the I.D.No.206 of 1996, has, among other things, observed that 'Its office commenced from 1.5.95 and that it is not in possession of the Petitioners file and also that on enquiry from the closed Cheyyar T.W.A.D. Board maintenance division. It is informed that the Petitioner has been employed on daily wages whenever required through oral order and that the Petitioner has not been recruited through Employment Exchange and hence, it is not empowered to appoint him in their division.' 6.The 2nd Respondent/T.W.A.D. Board has taken a further stand that the Petitioner has been appointed on a daily wage basis whenever required and further the Cheyyar Division is closed and therefore, it is not in a position to absorb him. Moreover, the Petitioner has been https://hcservices.ecourts.gov.in/hcservices/ removed on 26.12.1990 and since the petition has been filed after a lapse of six years, the same is barred by Limitation. 7.According to the Learned Counsel for the Petitioner, the impugned award passed by the 1st Respondent/Labour Court, Vellore is vitiated with serious illegality and irregularity and further it has not considered the relevant materials and facts which has resulted in an erroneous award being passed against the Petitioner. 8.The Learned Counsel for the Petitioner urges before this Court that the 1st Respondent/Labour Court should have properly analysed Ex.W.10 and Ex.W.11 are clearly point out that the Petitioner has worked for 680 days between the period from 1.9.88 to 25.9.90 and for more than 240 days during the preceding calendar year prior to the date of termination. 9.Advancing the arguments, the Learned Counsel for the Petitioner submits that inasmuch as the Petitioner has worked for more than 240 days prior to the date of termination, he is entitled to get the benefits under Section 25-F of the Industrial Disputes Act, 1947. 10.That apart, the Learned Counsel for the Petitioner contends that the act of the 2nd Respondent/T.W.A.D. Board in not regularising the services of the Petitioner and other workmen as per the provisions of Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 is an illegal one. 11.Also, the action of the 2nd Respondent in unjustly terminating the services of the Petitioner is in violation of the principles of Natural Justice. 12.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 2nd Respondent/T.W.A.D. Board) for a fuller and better appreciation of the controversies involved in the respective industrial disputes. 13.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. 14.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 https://hcservices.ecourts.gov.in/hcservices/ 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. 15.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. 16.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. 17.W.W.1, in his cross examination, has stated that they have not been appointed through Employment Exchange and that they have been 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. 18.W.W.2 [Petitioner in I.D.No.203/1996] in his evidence has stated that they were removed from service on 26.12.90 and that the Managing Director has issued orders for the 480 days served by the persons concerned and based on that in respect of 71 persons permanent orders have been given etc. 19.W.W.2 in his cross examination has deposed that presently there is no Vandavasi division and the Vandavasi division has been included in the Cheyyar division and that the Desur Thellar Joint Drinking Water Scheme comes under Cheyyar division. 20.It is the evidence of M.W.1 [Junior Engineer of the 2nd Respondent/T.W.A.D. Board] that he has not worked at the Vandavasi https://hcservices.ecourts.gov.in/hcservices/ 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. 21.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. 22.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. 23.Ex.W.1 dated 6.12.88 has been issued by the 2nd Respondent's Junior Engineer, Chetpet, North Arcot District in and by which for the Desur Thellar and other 87 tenements under Joint Water Scheme maintenance Night Watchman and others the jobs/works have been distributed and in the said list, the name of the Writ Petitioner is found in Serial No.3 [in I.D.No.206/1996]. 24.Ex.W.2 is the Transfer Order dated 14.6.89 in respect of the Writ Petitioner and two others. By means of Ex.W.3-Order dated 24.6.89 issued by the 2nd Respondent/Management, the Petitioner has been directed to operate the valves of the water taps. Ex.W.4 is the xerox copy of the letter dated 5.9.90 of the Petitioner addressed to the 2nd Respondent/Administrative Engineer whereby the Petitioner has expressed his desire to work in Cheyyar Sub Division of the Desur Thellar Joint Drinking Water Scheme. In the said Ex.W.4, there is an endorsement made by the 2nd Respondent's Junior Engineer that the Petitioner may be sent to Cheyyar Sub Division. 25.Ex.W.5 is the letter of the Junior Engineer, T.W.A.D. Board, Desur dated 28.9.90 addressed to the Junior Engineer, T.W.A.D. Board, Cheyyar whereby and whereunder it is recommended that the Petitioner- Janakiraman in I.D.No.206 of 1996 and one Sekar can be transferred on mutual request and that the Writ Petitioner [Janakiraman] may be transferred to the Desur division. Ex.W.6 is the certificate issued by the Junior Engineer of Desur, T.W.A.D. Board R.W.S. Section IV dated 18.5.91 of the Petitioner which indicates that the Writ Petitioner has been working as a Valve Operator from 22.8.88 till https://hcservices.ecourts.gov.in/hcservices/ date 26.12.90 in the maintenance of the C.W.S.S. to Desur-Thellar and 7 others habitation. Interestingly, in Ex.W.6-Certificate issued to the Petitioner, the date, month and year has been interpolated in bracket as [26-12-90] in different ink as seen by this Court. As a matter of fact, in Ex.W.6-Certificate issued to the Petitioner apart from the date, month and year all other recitals are in particular ink. 26.Ex.W.7 is the letter of the Junior Engineer, T.W.A.D. Board R.W.S. Section No.IV Desur in and by which it is stated that the Petitioner is the fittest person for the Tank Mettukudisai and that he may be relieved and sent to the Desur office. Ex.W.9 is the Muster Roll of Chetpet office of the 2nd Respondent. Ex.W.10 is the statement showing the details of NMR workers under the control of 2nd Respondent/Office Sub Division, Cheyyar signed by the Assistant Executive Engineer for the period from 16.7.88 till 25.12.1990. In the said Ex.W.10-Statement, the Petitioner is reported to have worked for 61 days in all from 16.7.88 to 25.12.90. Only from 1.9.88 to 30.9.88 and 1.10.88 to 31.10.88 the Petitioner has worked for 30 plus another 31 days in all he worked for 61 days as per Ex.W.10- Statement. 27.In Ex.W.14-Communication dated 10.10.91 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, has, among other things, stated in paragraph 4 that 'the Administrative Engineer of the 2nd Respondent Office has stated during the enquiry on 16.9.91 that he is anticipating the order of the Managing Director of the T.W.A.D. Board as regards the permanency of the individuals mentioned therein and increased in salary to be paid by the Board to them etc. 28.In Ex.W.14-Communication of the Inspector of Labour, Tiruvannamalai, the Petitioner [Janakiraman in I.D.No.206/1996] is stated to have joined as Night Watchman on 22.8.88. In Ex.W.14 in paragraph 3 it is made mention of that the Petitioner and 14 others have themselves relieved from service etc. 29.In Ex.W.15-Communication of the Managing Director of the T.W.A.D. Board, Chennai dated 19.9.96, it is among other things mentioned that 386 workers as per the list have been directed to be made permanent, if they have completed 480 days of work and that proper salary will have to be given to them and annual notional salary increase will have to be given and their salary in the minimum scale of pay will have to be refixed from 1.8.96. A perusal of Ex.W.15 Managing Director's Proceedings dated 19.9.96 together with the List of N.M.R. Personnel of Northern Region indicates that only 78 names are found. Significantly, in Ex.W.15 List of N.M.R.s ranging https://hcservices.ecourts.gov.in/hcservices/ from Serial No.1 to 78 the Petitioner's name [I.D.No.206/1996] does not find a place. Further, the Appointing Authority viz., Superintending Engineers /Administrative Engineers have been directed to regularise the time scale of pay of the daily wage workers who have been made permanent on completion of 480 days. 30.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." 31.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." 32.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 https://hcservices.ecourts.gov.in/hcservices/ appointments. The Board has approved the proposal." 33.At this stage, this Court worth recalls the decision of Hon'ble Supreme Court in Haryana State Electronics Development 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." https://hcservices.ecourts.gov.in/hcservices/ 34.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: "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." 35.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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 not invalid or inoperative on account of non- payment." (b)In Shushil Kumar Pandey V. Director, Bal Vikas Seva Evam Pausht Ahar, Lucknow & others 1998-Vol.3-L.L.J.(Supp.)-140 it is held thus: "Upon termination of his services as a junior Clerk on daily wage basis by the third respondent, the petitioner filed the present writ petition impugning the termination. The Court dismissed the writ petition. It observed the order of termination was on the basis of the conditions contained in the appointment letter according to which the petitioner's services could be terminated without prior notice. It was a temporary arrangement which ceased to be effective in terms of the conditions given in the appointment letter." (c)In Haryana State F.C.C.W. Store Limited and another V. Ram Nivas and another 2002-II-L.L.J.-1153 the Hon'ble Supreme Court has held as follows: "The Supreme Court observed that the engagement/appointment of the respondent-workmen was for a specific purpose and for a particular period. Their disengagement on the completion of the purpose and expiry of the period, was in terms of the contract of service and therefore not a 'retrenchment' within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947." (d)In Nuclear Fuel Complex, Hyderabad V. K.Petna Reddy and others 2002 (2) L.L.N. 966, it is held, inter alia, that 'The contract labour engaged by a contractor for a particular period for a particular job are not "workmen" under Industrial Disputes Act and https://hcservices.ecourts.gov.in/hcservices/ further that such an employment comes to an end automatically as soon as the time is over and the job is over and moreover, the disengagement of contract labour does not amount to retrenchment and does not attract S.25F of Industrial Disputes Act, 1947 and as such, they are not entitled to the absorption in the service of the company in respect of whose work, they were engaged by contractor.' (e)In Batala Co-operative Sugar Mills Limited V. Sowaran Singh 2005 (6) Service Law Reporter 413 at page 414 in paragraph 4 to 8 the Hon'ble Supreme Court has laid down as follows: "4.In support of the appeal, learned counsel for the appellant submitted that both the Labour Court and the High Court fell in grave error by acting on factually and legally erroneous premises. The definite stand of the appellant was that the workman was engaged on casual basis on daily wages for specific work and for specific period. Details in this regard were undisputedly