IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001, 14248 of 2002 and 34176 of 2003 The Tamil Nadu State Transport Corporation (Coimbatore Division-I) Ltd. 37, Mettupalayam Road Coimbatore – 641 043 rep. by its Managing Director. .. Petitioner in WPs.24833 to 24843 and 24845 to 24850/2001, 2nd respondent in WP:14248/2002 and petitioner in WP.34176/2003 Vs. The Presiding Officer Labour Court Coimbatore. .. 1st Respondent in WPs.24833 to 24843 and 24845 to 24850/2001, 14248/2002 and 34176/2003 P.Jagadeesh .. 2nd Respondent in WP.24833/01 & 11th petitioner in WP:14248/2002 M.Marimuthu .. 2nd Respondent in WP.24834/01 & 8th petitioner in WP:14248/2002 G.Chandirakumar .. 2nd Respondent in WP.24835/01 & 9th petitioner in WP:14248/2002 https://hcservices.ecourts.gov.in/hcservices/ M.Subramani .. 2nd Respondent in WP.24836/01 & 7th petitioner in WP:14248/2002 P.Chinnadurai .. 2nd Respondent in WP.24837/01 & 10th petitioner in WP:14248/2002 P.Rangaraj .. 2nd Respondent in WP.24838/01 & 1st petitioner in WP:14248/2002 N.Rajendran .. 2nd Respondent in WP.24839/01 & 2nd petitioner in WP:14248/2002 M.Chinnasami .. 2nd Respondent in WP.24840/01 & 3rd petitioner in WP:14248/2002 S.M.Babu .. 2nd Respondent in WP.24841/01 & 4th petitioner in WP:14248/2002 P.Ganesan .. 2nd Respondent in WP.24842/01 & 5th petitioner in WP:14248/2002 P.Raja .. 2nd Respondent in WP.24843/01 & 6th petitioner in WP:14248/2002 R.Chinnadurai .. 2nd Respondent in WP.24845/01 & 15th petitioner in WP:14248/2002 V.Bannari .. 2nd Respondent in WP.24846/01 & 14th petitioner in WP:14248/2002 https://hcservices.ecourts.gov.in/hcservices/ G.Rajendran .. 2nd Respondent in WP.24847/01 & 13th petitioner in WP:14248/2002 P.Nagaraj .. 2nd Respondent in WP.24848/01 & 12th petitioner in WP:14248/2002 K.Arumugam .. 2nd Respondent in WP.24849/01 & 16th petitioner in WP:14248/2002 R.Rangaraj .. 2nd Respondent in WP.24850/01 & 17th petitioner in WP:14248/2002 N.Manoharan A.Selvaraj K.Sundaram M.Arumugam R.Kalaiselvan N.Sivaraj S.Ravi R.Srinivasan S.Ranganathan V.Rajan K.Paramasivam K.Gopalakrishnan P.Ramamoorthy S.Ganesamoorthy A.Karthikeyan K.Ramu P.Thamizhselvan .. Respondents 2 to 18 in WP.34176/2003 Prayer in W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001: Petitions under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the 1st respondent in I.D.Nos.394, 395, 396, 398, 397, 388, 389, 390, 391, 392, 393, 402, 401, 400, 399, 403 and 404 of 1997, dated 31.5.2001 and to quash the same. Prayer in W.P.No.14248 of 2002: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records relating to the common award dated 31.5.2001 passed by the first respondent in I.D.Nos.388 to 404 of 1997, to quash the same insofar as denying back-wages and other attendant https://hcservices.ecourts.gov.in/hcservices/ benefits and consequently direct the second respondent to pay back- wages and other attendant benefits from the date of termination to the date of the award. Prayer in W.P.No.34176 of 2003: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the first respondent in I.D.Nos.284/98, 286/98 to 296/98, 298/98, 299/98, 300/98, 302/98 and 342/2001, dated 19.11.2002 and to quash the same. For Petitioner : Mr.Jayesh B.Dolia in W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001, and 2nd respondent in WP.14248 of 2002 For Petitioner : Mr.Rajnish Pathiyal in WP.No.34176/2003 For 2nd Respondent : Mr.V.Ajoy Khose in W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001, and petitioners in WP.14248 of 2002 For respondents 2 to 18 : No appearance in WP.No.34176 of 2003 ORDER In these writ petitions both the management and the workmen are aggrieved by the common award passed by the Labour Court, Coimbatore in I.D.Nos.388 to 404 of 1997, dated 31.5.2001 and the common award passed in I.D.Nos.284, 286 to 296, 298, 299, 300 and 302 of 1998 and 342 of 2001, dated 19.11.2002. By the impugned award, the Labour Court held that the contesting respondents in each of the writ petitions are allowed to be reinstated on a permanent basis with continuity of service, but however without back-wages. 2. In all the writ petitions except W.P.No.14248 of 2002, the management is the State owned Transport Corporation, Coimbatore Division, represented by its Managing Director and W.P.No.14248 of 2002 is filed by the contesting respondents against the common award dated 31.5.2001 passed by the first respondent in I.D.Nos.388 to 404 of 1997. The writ petitions filed by the management, viz., W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001 were admitted by this Court on 19.12.2001. Pending the writ petitions, this Court granted an order of interim stay of the award on the same day. Subsequently, the workmen filed vacate stay petitions and they were heard along with the stay petitions and an order dated 25.4.2002 was https://hcservices.ecourts.gov.in/hcservices/ passed by this Court. In paragraph (6) of the order, this Court gave the following direction: "6. However, according to him, the award of the Labour Court directing permanency is beyond the scope of the petitions filed before it. Taking note of the issue raised in all these matters, all the above petitions are disposed of by passing the following order. 1. Interim stay granted on 19.12.2001 is confined and made absolute only with regard to direction for permanency. 2. The petitioner/management is directed to provide employment to all the workmen concerned and pay wages on par with other similarly placed employees." 3. Subsequent to the order passed by this Court, the workmen have filed W.P.M.P.Nos.35061 to 35077 of 2003 claiming payment of current wages during the pendency of the writ petitions. However, the matter was not taken up. 4. In view of the interconnectivity between the two types of writ petitions, they were heard together and common order is passed. 5. Heard Mr.Jayesh B.Dolia and Mr.Rajnish Pathiyal, learned counsel appearing for the management of the Transport Corporation and Mr.Ajay Khose, learned counsel appearing for the workmen in W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001. 6. The workmen, viz., the contesting respondents in these writ petitions, were employed as Body Washers by the petitioner/Corporation for cleaning the buses and they have been working for more than nine years. The workmen claim they were employed from night 9'o clock to the next day morning 8.30 and they will have to function throughout the night. Though they have been working for several years, they have not been confirmed in their posts. In order to victimize them, the management of the Corporation abruptly stopped them from work. When they were in employment, they were given bus pass for going to the work spot and they were also given food at subsidized rates in the canteen. Therefore, the workmen, as against their abrupt termination, moved the Labour Officer. On the strength of the failure reports given by the Labour Officer, they have filed separate claim statements before the first respondent/Labour Court. Their claim statements were taken on file and assigned individual I.D.Nos.388 to 404 of 1997, 284, 286 to 296, 298, 299, 300 and 302 of 1998 and 342 of 2001 and notice was ordered to the management of the Corporation. 7. The management of the Corporation filed counter statement stating that it is a State owned Corporation and all the posts will have to be filled up by getting candidates from employment exchange https://hcservices.ecourts.gov.in/hcservices/ and after giving due publicity in the newspapers. At the time of recruitment the applications will be considered on the basis of minimum qualifications prescribed. That the workmen were not appointed in a regular manner. There are 1300 buses owned by the petitioner/Corporation in the three districts of Coimbatore, Erode and Nilgiris. The buses will have to be cleaned during the night time and also repaired if necessary, on the supervision by the Assistant Engineer. The workmen are paid on piece rate basis depending upon the number of buses cleaned by them. It was stated that the workmen were not given any appointment order, there is no supervision over their work, there is no necessity to have permanent employment and hence there was no termination of their services. There is no work assigned to such Body Washers and at no point of time, the management agreed to regularise their services. Even the contention that the workmen worked for more than three years was denied. 8. Before the Labour Court in I.D.Nos.388 to 404 of 1997, on behalf of the workmen 16 documents were filed and they were marked as Exs.W1 to W16 and on the side of the management, 14 documents were filed and they were marked as Exs.M1 to M14. While two workmen, viz., Subramani (claimant in I.D.No.398 of 1997) and Rangaraj (claimant in I.D.No.404 of 1997) examined themselves as W.W.1 and W.W.2, on the side of the management, 5 witnesses were examined as M.W.1 to M.W.5. 9. The Labour Court, on an overall analysis of the materials – both oral and documentary, came to the conclusion that is is not necessary that workmen should be employed only through employment exchange and on that ground they should not be denied their daily wage employment. The Labour Court also accepted the nature of duties in which the workmen were employed and it found that the work was perennial and continuous in nature and at times of necessity they used to be engaged in two shifts. The Labour Court after examining the evidence given by the management, further came to the conclusion that an Assistant Engineer used to be present when the workmen are in employment and there is a continuous work available to the workmen. The work performed by the workmen was supervised by the officers of the Corporation. 10. With reference to the continuous service put in by the workmen, the Labour Court held that the workmen had put in more than 240 days of service in a period of one year and in terms of the labour laws, before their services are dispensed with the condition precedent under Section 25-F of the Industrial Disputes Act should be followed and that has not been done in the case of these workmen. The Labour Court, on the plea that the workmen have stopped themselves, has held that even if there are unauthorised absentees, due notice should have been given before their termination. Such an action was not done and by only an oral order they were all sent out of service. In effect, the Labour Court held the question of presumption of abandonment of employment will not arise in terms of the Standing Orders and the workmen should have been given due notice in case they had absented without any justification and no enquiry https://hcservices.ecourts.gov.in/hcservices/ was held in the case of these workmen. Insofar as the evidence of the management of the Corporation is concerned, the Labour held that M.W.1, who was a responsible officer, in his cross-examination stated that he is not aware of the facts and circumstances of the case and even without being familiar with the issues on hand, he should not have been brought to the witness box. There were several contradictions in the evidence given by the management witnesses and therefore, it found they have suppressed vital points in favour of the workmen. 11. The Labour Court also held that since the workmen have been working for 5 to 10 years, it is difficult to presume that they have stopped from work and on the contrary, it was only when the workmen were demanding regularisation, the respondents have abruptly stopped them from service. Therefore, the Labour Court held that the demand of the workmen for regularisation in employment with continuity in service is justified. But insofar as back wages is concerned, taking note of the law on the point that Court can mould the relief on the quantum of back-wages and it is not necessary that in every case there should be a direction for back-wages, the Labour Court partly allowed all the Industrial Disputes.It had directed their reinstatement with continuity in service and regularisation but without back-wages. 12. Mr.Jayesh B.Dolia and Mr.Rajnish Pathiyal, learned counsel appearing for the petitioner contended that there is no such post called Body Washer and for any employment in the Corporation, it should be routed through the employment exchange and therefore, there was no scope for employing them. It is submitted that even after an interim order dated 25.4.2002 was passed by this Court, some of the workmen have not reported for work and finally, it is stated that in the absence of their being in employment, the piece rated workers like the workmen can neither be reinstated nor continuity in service can be granted. 13. It is seen from the affidavit filed in support of W.P.M.P.Nos.35061 to 35077 of 2003 by the workmen that after their restoration to service on 21.5.2002, which was to avoid payment under Section 17B of the Industrial Disputes Act, they were paid Rs.4.50/- in case of Tailors for stitching the cover and the total payment was Rs.40.50 per day, but in the normal circumstances, the minimum scale of pay available to them is Rs.3240-60-4680/- and the management has denied such payment by engaging them on daily wages. 14. Mr.Ajoy Khose, learned counsel for the workmen in W.P.Nos.24833 to 24843 and 24845 to 24850 of 2001 submitted that it was a well considered award and does not call for any interference. With reference to the nature of employment, it was contended that Body Washer is a "workman" with the meaning of Section 2(s) of the Industrial Disputes Act. In this regard, he placed reliance on two unreported Division Bench judgments of this Court. https://hcservices.ecourts.gov.in/hcservices/ 15. The first judgment relied upon by the learned counsel is the Division Bench judgment in Rani Mangammal Transport Corporation Limited v. The Presiding Officer, Labour Court, Madurai and another in W.A.No.745 of 2002, dated 12.7.2007. In that case, the second respondent one V.Chinnaraj was employed for cleaning the buses on piece rate basis. His services were terminated on 1.11.1986 and he raised a dispute. The Labour Court held that though he was a piece rated worker, he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act. Insofar as termination was done without recourse to Chapter-V, the termination was held to be bad and he was directed to be reinstated with back-wages. The said award was challenged by the management of the Corporation in W.P.No.7833 of 1994. This Court, by a final order dated 30.11.2001, upheld the award. The further appeal by the Transport Corporation was rejected by the Division Bench presided by Elipe Dharma Rao,J. 16. The second judgment relied upon by the learned counsel is the Division Bench judgment in Tamil Nadu State Transport Corporation (Madurai Division II) Ltd. v. The Presiding Officer, Labour Court Tirunelveli and another in W.A.No.2590 of 2001 and batch cases. The said batch was disposed of by the Division Bench presided by F.M.Ibrahim Kalifulla,J. on 30.8.2007. In that case, the workmen involved were also Body Washers employed by the Corporation and they got a favourable order before the Labour Court. The learned Judge of this Court confirmed the award. When it was challenged before the Division Bench, the Division Bench, by its order, held that a Body Washer is a workman within the meaning of Section 2(s) of the Industrial Disputes Act. The contention that those workmen were engaged only on piece rated basis and cannot have any right over employment was also rejected by the Division Bench. 17. The Division Bench, in this regard, referred to the earlier Division Bench judgment dated 4.4.2003 made in W.A.No.2395 of 1999 and observed as follows: "6. The learned counsel for Respondents No.2 has brought to our notice the decision of the Division Bench in W.A.No.2395 of 1999 dated 04.04.2003. In the said case before the Division Bench the subject matter was same, viz., non-employment of Contract Workers/Body Washers engaged by the Transport Corporation. In the industrial dispute raised by the workman, the Labour Court directed reinstatement and awarded scale of pay. The award of the Labour Court was challenged by filing Writ Petition by the Transport Corporation on the ground that the award is beyond the reference made by the Government and the Labour Court has committed an error in fixing the time scale to the Respondents as if they were permanent workers. The learned Single Judge confirmed the award. In the Appeal preferred by the Transport Corporation, the Division Bench of this Court observing that under Article 226 questions of fact cannot be interfered with, https://hcservices.ecourts.gov.in/hcservices/ after elaborate consideration of the contentions observing that the finding of the learned Single Judge cannot be interfered with, the Division Bench of this Court (Speaking for the Bench Justice K.Raviraja Pandian) has held as follows:- "8. It is well settled that a writ can be issued for correcting the errors of jurisdiction committed by the inferior Court or Tribunal; these are cases, where orders are passed by the inferior Courts or Tribunal without jurisdiction or in excess of it or as a result of failure to exercise the jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it the inferior or tribunal acts illegally or improperly. The writ jurisdiction is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact. The finding of fact recorded by the tribunal or inferior courts cannot be challenged in writ proceedings on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or insufficiency of evidence led on a point and inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated in writ proceedings (vide the Constitution Bench Judgment in SYED YAKOOB Vs. K.S.RADHAKRISHNAN AND OTHERS (1964 (5) SCR 64 = AIR 1964 SC 477)). 9. The learned Judge has specifically pointed out that the appellant has admitted the fact that the respondents 2 to 5 were engaged by them as bus body cleaners. To that effect there is evidence in the form of documents Exs.W.1, W.24 and W.25 and also the deposition of W.W.1 to W.W.3. Even the evidence of the respondents that they could abstain from duty only after obtaining prior permission from the appellant has also not been repudiated by the management. When that is the position, the finding arrived at by the labour Court and confirmed by the learned Single Judge that the non-employment is illegal cannot be legally complained of." https://hcservices.ecourts.gov.in/hcservices/ 7. The ratio of the above said decision is applicable to the case on hand. The learned counsel for the Appellant/Corporation tried to make a distinction that the above said decision arose out of the reference made by the Government. By going through the said judgment, we find that the said decision relates to non-employment of Contract Workers/Body Washers, who were engaged on piece-rates basis. The facts of the said decision is identical as that of the case on hand." Therefore, in the context of these two Division Bench judgments, the counsel claimed that the award cannot be assailed on the basis of the contentions raised by the petitioner/management. 18. A reference was also made to the recent judgment of the Supreme Court in Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmchari Sanghatana, [2009] 8 SCC 556. In that case, the Supreme Court upheld the claim of the Body Washers engaged by the Maharashtra State Road Transport Corporation. The workmen in that case went before the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and complained that their engagement was for long number of years and without giving permanent status and engaging them on piece rated basis will be an unfair labour practice prohibited by the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Industrial Court gave a direction to the Corporation to make them permanent. Thereafter the matter was challenged before the Bombay High Court. After the Bombay High Court negatived their claim by a Division Bench judgment dated 6.5.2005 in L.P.A.No.206 of 2001, the matter was taken to the Supreme Court by the Transport Corporation. The Supreme Court upheld the view of the Industrial Court and held that it was a clear case of unfair labour practice and therefore, no exception can be taken in directing their reinstatement. 19. It will not be out of place to state that insofar as the workmen in the case on hand are concerned, even under the Industrial Disputes Act, 1947 Schedule V provides a list of unfair labour practices not to be practiced by employer and the workmen. Part I of Schedule V lists unfair labour practices indulged by the employer. Item No.10 reads as follows: "To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen." Such a commission of unfair labour practice has been clearly prohibited by Section 25-T of the Industrial Disputes Act. Under Section 25-U of the Industrial Disputes Act penal consequences have been provided for commission of 'unfair labour practice' by an employer. Therefore, the infraction found by the Supreme Court in terms of Item No.6 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 which is https://hcservices.ecourts.gov.in/hcservices/ in pari materia with Item No.10 of Schedule V of the Industrial Disputes Act will have to be taken into account. Though this question was not directly raised by the workmen, however Mr.Ajoy Khose pointed out the similarity between the two enactments. 20. In that case, the Supreme Court not only upheld the order passed by the Industrial Court, but also dealt with an oft-quoted objection which has also been raised before this Court by placing reliance upon the decision in State of Karnataka v. Uma Devi (3), [2006] 4 SCC 1. In dealing with Uma Devi (3) case, the Supreme Court said that the prohibition mentioned in Uma Devi (3) case is only for the High Court and the Supreme Court in granting direction under Articles 226 and 32 of the Constitution of India. The decision in Uma Devi (3) case will be of no assistance if there is a State enactment dealing on the subject. 21. The following passage found in paragraphs (31) to (33) of Maharashtra State Road Transport Corporation and another case can be usefully quoted in this regard: "31. The purpose and object of the MRTU and PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedules II, III and IV. The MRTU and PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the court be necessary to effectuate the policy of the Act. 32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object