IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.9226 of 2003 S.K.Venkatesan .. 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.203 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.203 of 1996 and to quash the Award dated 24.06.2002 insofar as it relates to him. 2.The 1st Respondent/Labour Court, Vellore, while passing the Award dated 24.06.2002 in I.D.No.203 of 1996, has, among other things, observed that 'a perusal of Ex.W.10 shows that the Petitioner has worked for 16 days till 31.7.88, 31 days till 31.10.88, upto 25.9.908 days and in all for 3 years from the year 1988 to 1990 he https://hcservices.ecourts.gov.in/hcservices/ has only worked for 95 days, though in the written arguments it is stated that he has worked for 569 days but it is not to be seen that he has worked for 569 days and in view of the fact the Petitioner in a year has not worked for 240 days and when he has admitted that he being a Daily Coolie it cannot be construed that refusal of work to him is an unlawful one and as such, he cannot be ordered to be reinstated into service and consequently, passed an Award thereto.' 3.The Writ Petitioner in I.D.No.203 of 1996 (in claim petition) has averred that he has been appointed and posted as Valve Operator and Night Watchman on 27.6.88 in the 2nd Respondent/Tamil Nadu Water and Drainage Board Office at Desur at Thellar Co-operative Drinking Water scheme on a daily wage of Rs.14.25 paise. On 6.12.1988 he has been appointed as a Daily Wage Coolie and his salary has been paid once in a month. He has been put in-charge of Thirukoil, Pavathampoondi, Panambattu and Desur. Further, on 24.6.89 his daily wage from Rs.14.25 has been increased to Rs.22/- and the same has been paid in lumpsum, per month. 4.The case of the Writ Petitioner is that on 05.9.90 he has been transferred from Desur to Cheyyar Co-operative Drinking Water Scheme Station and he has been working till 28.9.90. On 28.9.90 he has been again transferred to the place at Desur, Thellar Co-operative Drinking Water Scheme and has been working there till 26.12.1990. On 26.12.1990 he has been removed from service by the 2ndRespondent without any reason or any notice. His termination is against the principles of natural justice. He has not been provided with an opportunity prior to his removal from service. There has been no charge or defect on his part in doing his duties. Hence, the Petitioner has sought for his non-employment as an illegal one and to reinstatement him into service granting backwages and other incidental benefits. 5.The 2nd Respondent/T.W.A.D. Board, in its counter to I.D.No.203 of 1996, has, among other things, stated that the Petitioner has not been recruited through Employment Exchange and that the Respondent is not empowered to appoint him in their division. Also, it is the stand of the 2nd Respondent/T.W.A.D. Board that the Petitioner has been appointed on daily wages whenever required and moreover, the Cheyyar division has been closed and therefore, it is not in a position to absorb him. That apart, after his removal in the year 1990, he filed I.D.No.203 of 1996 after an interval of six years. It is barred by Limitation. 6.The Learned Counsel for the Petitioner submits that the Petitioner joined in the 2nd Respondent Office as Valve Operator and Night Watchman on 27.6.88 in Desur at Vellore Co-operative Drinking Water Scheme as a Non Muster Roll Employee. His daily wage of Rs.14.25 has been paid once in a month. He has been working https://hcservices.ecourts.gov.in/hcservices/ continuously without any break. On 16.12.88 he has been appointed as a Daily Coolie and placed in charge of Thirukoil, Pavathampoondi, Panambattu and Desur. From 24.6.89 his daily wage has been increased to Rs.22/-. On 5.9.90 he has been transferred from Desur to Cheyyar Co-operative Drinking Water Scheme Station and has been serving there till 28.9.90. On 28.9.90 he has been re-transferred from Cheyyar to Desur at Thellar Co-operative Drinking Water Scheme and worked there upto 26.12.90. 7.According to the Petitioner, he has been orally terminated from service by the 2nd Respondent on 26.12.90. The Learned Counsel for the Petitioner contends that the award of the 1st Respondent/Labour Court suffers from non-consideration of relevant materials and facts. 8.The Learned Counsel for the Petitioner vehemently projects an argument that the 1st Respondent/Labour Court has not appreciated Ex.W.10 and Ex.W.11 in a proper and real perspective and the said exhibits clinchingly point out that the Petitioner has worked for 621 days for 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 his removal. 9.The core contention advanced by the Learned Counsel for the Petitioner is that the Petitioner has worked for more than 240 days prior to the date of his termination and consequently, he is entitled to get the benefits as per 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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-S.K.Venkatesan [Petitioner in I.D.No.203/1996], in his evidence, has deposed [before the 1st Respondent/Labour Court] to the effect that he and others have been removed from service on 26.12.90 and that they have been given the petition through their Union before the Inspector of Labour after the removal and the Inspector of Labour has passed an order Ex.W.14 dated 10.10.91 that they should be reinstated into service and that the Managing Director has given an https://hcservices.ecourts.gov.in/hcservices/ order that if a person has worked for 480 days he can be made permanent and accordingly, 71 persons have been made permanent and the further, the details of date of appointment, number of days worked are mentioned in Ex.W.15-order of the 2nd Respondent/ Management to the workers dated 19.9.96. 19.W.W.2 in his cross examination has deposed that they obtained Ex.W.15-Order of the Management dated 19.9.96 through their workers Union and the original of Ex.W.15 has not been marked and also it is true to state that persons mentioned in Serial No.1, 2, 42 to 48 and 50 to 71 have been recruited through Employment Exchange and the persons who have been recruited through the Employment Exchange have passed in 10th Standard. It is also the evidence of W.W.2 that after 12.5.88 all appointments have been made through Employment Exchange office and the Vandavasi division presently has been included in the 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 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.In Ex.W.1-Work Distribution Order of the Junior Engineer Office, Chetpet, North Arcot District dated 6.12.88 the Petitioner's name (in I.D.No.203 of 1996) is mentioned in Serial No.4. Ex.W.1-Work Distribution order of the Management refers to the Desur, Thellar and other 87 tenements in regard to the Drinking Water Maintenance Scheme wherein the jobs/works have been distributed to the Watchman and Assistants. https://hcservices.ecourts.gov.in/hcservices/ 24.Ex.W.8 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.8, there is an endorsement made by the 2nd Respondent's Junior Engineer that the Petitioner may be sent to Cheyyar Sub Division. 25.In Ex.W.9-Copy of Muster Roll of Chetpet office of the 2nd Respondent, the Assistant Executive Engineer of T.W.A.D. Board, R.W.S. Sub Division, Chetpet has signed and also attested the same. In the first page of Ex.W.9 the Petitioner is reported to have worked for 474 days. 26.In Ex.W.10-Statement showing the details of N.M.R. 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-S.K.Venkatesan is reported to have worked for 16 days for the period from 16.7.88 to 31.7.88 and for the period from 1.10.88 to 31.10.88 he has worked for 31 days and subsequently for the period from 26.8.90 to 25.9.90 he has worked for 8 days and aggregating in all worked for 95 days [but actual calculation comes to 55 days as per Ex.W.10]. If one has to go by the version of Petitioner Ex.W.9 and Ex.W.10, then, the Petitioner out turn of work comes to 529 days. But in reality, a perusal of Ex.W.10 shows that the Petitioner has only worked for 55 days in all as referred to supra. 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 [S.K.Venkatesan in I.D.No.203/1996] is stated to have joined as Night Watchman on 27.6.88. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 from Serial No.1 to 78 the Petitioner's name [I.D.No.203/1996] 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: https://hcservices.ecourts.gov.in/hcservices/ "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 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. .... https://hcservices.ecourts.gov.in/hcservices/ 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." 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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." https://hcservices.ecourts.gov.in/hcservices/ (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 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