IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WA.No. 472 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.8106/2004 .................... APPELLANT(S): PETITIONER IN WP(C): ---------------------------------- THE EXECUTIVE ENGINEER, NEENDAKARA FISHING HARBOUR DIVISION, HARBOUR ENGINEERING DEPARTMENT,SAKTHIKULANGARA P.O KOLLAM. BY GOVERNMENT PLEADER SMT.R.BINDU RESPONDENT(S): RESPONDENT IN THE WP(C): --------------------------------------- 1. THE GENERAL SECRETARY, NEENDAKARA PORT AND FISHIHNG HARBOUR C.L.R. WORKERS UNION, U.T.U.C., NEENDAKARA. 2. THE INDUSTRIAL TRIBUNAL, KOLLAM. ADV. SRI.P.RAMAKRISHNAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.3.2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No. 472 of 2008 ---------------------------------------- Dated this the 6th day of April, 2010 JUDGMENT Ravindran, J. The appellant is the petitioner in W.P.(C) No.8106 of 2004. In that writ petition the appellant challenged Ext.P2 award passed by the Industrial Tribunal, Kollam in I.D.No.12 of 1988. By judgment delivered on 2.1.2008, the learned Single Judge dismissed the writ petition. Aggrieved thereby this writ appeal is filed. The brief facts of the case are as follows: 2. The Neendakara Fishing Harbour constructed by the Harbour Engineering Department of the State Government was commissioned on 28.3.1987. 42 casual workers engaged by the Harbour Engineering Department in the construction of the Neendakara Fishing Harbour as Drivers, Watchmen, Security Personnel, Electricians and Sweepers, raised various claims including confirmation in service. The dispute raised by them was referred to the Industrial Tribunal, Kollam for adjudication by the Government as per G.O. (Rt.) No.1891/88/LBR dated 18.10.1988. The workers contended that they have been working in the Neendakara Fishing Harbour Project since the investigation stage in various posts, that they are permanent W.A.No.472/2008 2 employees of the project and are entitled to get all benefits payable to permanent workers. They contended that they are engaged in fishing, distribution of fish and works connected with that and they are necessary for the working of the project. They claimed increase in salary and increments on the basis of length of service, casual leave, earned leave and paid holidays and annual bonus at par with Government servants. They also claimed appointment to the dependents of workers who died while working in the project or in connection with the work of the project. The workers who raised the said dispute were represented by the first respondent union. 3. The appellant opposed the claim of the workers. It was contended that the investigation and the subsequent construction work of the Neendakara Fishing Harbour was done by the Port Engineering Department of the Kerala Government which is a department of the Government and not an establishment and therefore, the dispute raised by the casual employees working in the project does not fall within the jurisdiction of the Industrial Tribunal. It was stated that local people were engaged on daily wages for the construction and other related works directly by the Port Engineering Department, that local people were thus engaged following the rules governing engagement of daily rated workers, that the casual workers cannot be W.A.No.472/2008 3 made permanent on the basis of their length of service, that the workers were paid as per the PWD schedule of rates and that daily rated casual employees are not entitled to any of the demands raised by the workers including confirmation in service. 4. One of the workers who was engaged as a Driver was examined as WW1 and a worker who was engaged as a Watchman was examined as WW2. On behalf of the appellant, no evidence, oral or documentary, was adduced. For the reason that the employer had not adduced any evidence to disprove the claim made by the workers, the Industrial Tribunal held that the workers are entitled to be confirmed in service in the various posts in which they were then working and also for the other reliefs claimed by the union and referred to the Tribunal for adjudication. An award was accordingly passed on 13.7.1989 declaring that the workers are entitled to be confirmed in various categories of posts and are entitled to all the reliefs claimed by them as stated in the reference order, as is being given to other similarly placed employees in the State service. 5. The appellant challenged the above award by filing O.P.No.9237 of 1990 in this Court. In that original petition, the appellant, inter alia, contended that the Department is not an industry as defined in the Industrial Disputes Act, 1947 and that the objection W.A.No.472/2008 4 raised to the jurisdiction of the Industrial Tribunal to entertain the dispute ought to have been considered and decided as a preliminary issue. By judgment delivered on 23.3.1995, a learned single Judge of this Court dismissed the original petition. It was held that the project which was executed by a Department of the Government is an industry and that as the workers have been engaged to work continuously for the past several years they are entitled to the benefits awarded by the Tribunal. The learned single Judge also held that there is no legal infirmity or any procedural irregularity in the award. 6. The appellant challenged the decision of the learned single Judge in O.P.No.9237 of 1990 by filing W.A.No.791 of 1995. By judgment delivered on 29.9.1998 the writ appeal was dismissed. The Division Bench however confined the operation of the award to 35 workers. The appellant thereupon moved the Apex Court by filing a Special Leave Petition. Special leave was granted and the appeal was taken on file and numbered as Civil Appeal No.5757 of 1999. By Ext.P1 order passed on 21.9.2000, the Apex Court set aside the judgments of this Court and the award passed by the Labour Court and remitted the matter to the Tribunal for fresh consideration in accordance with law after giving both parties adequate opportunity to adduce evidence. Since the Division Bench of this Court had in W.A.No.472/2008 5 W.A.No.791 of 1995 limited the relief granted by the Tribunal to 35 workers, the Apex Court directed that there shall be an order of status quo in relation to the said workers till the Industrial Tribunal passes a revised award in the matter. It was also observed that the continuance of the said 35 workers will not act as an equity in their favour at the time of final disposal. 7. After remand by the Apex Court, the union representing the workers did not adduce any evidence. The appellant was examined as MW1 and Exts.M1 to M12 were marked. The Tribunal after hearing the counsel on both sides passed Ext.P2 award on 5.1.2004 holding that the workers are entitled to be confirmed in various categories of posts as permanent workers and are also entitled to all the other reliefs claimed by them except payment of overtime wages. Aggrieved by the said award, the appellant filed W.P.(C) No.8106 of 2004 in this Court. By judgment delivered on 2.1.2008, the learned single Judge dismissed the writ petition. Hence, this writ appeal. 8. We heard Smt.R.Bindu, the learned Government Pleader appearing for the appellant and Sri.T.C.Krishna, the learned counsel appearing for the first respondent. The learned counsel for the appellant contended that as the Harbour Engineering Department is a department of the Government and the workers represented by the W.A.No.472/2008 6 first respondent union were engaged on daily wage basis for the construction of the Neendakara Fishing Harbour by the said department, they cannot claim that they are workmen engaged in an industry governed by the provisions of the Industrial Disputes Act in view of the stipulations in section 4 of the Kerala Public Services Act, 1968. The learned Government Pleader submitted that though a Full Bench of this Court had in Umayammal v. State of Kerala (1982 KLT 829) held that sovereign functions strictly understood alone qualify for exemption from the provisions of the Industrial Disputes Act and other activities or economic adventures undertaken by the Government do not qualify for exemption and even in departments discharging sovereign functions if there are units which are industrial and they are substantially severable, then they can be considered to come within the meaning of the term 'industry' as defined in section 2 (j) of the Industrial Disputes Act, 1947, the State Legislature had amended the Kerala Public Services Act, 1968 by incorporating section 4 therein with effect from 1.10.1981 to exclude the applicability of Industrial Disputes Act, 1947 and therefore, the reference made by the Government to the Industrial Tribunal and the award passed by the Tribunal are without jurisdiction. The learned Government Pleader also contended that the Government are not estopped from canvassing the said position W.A.No.472/2008 7 applying the principle that there is no estoppel against the statute. The learned Government Pleader submitted with reference to the statement dated 22.3.2010 filed by the Assistant Executive Engineer, Harbour Engineering Department, South Division, Sakthikulangara, Kollam in this writ appeal that some of the persons who were engaged in the construction of the Neendakara Fishing Harbour Project have been regularised as SLR workers and that only such persons can claim absorption in the regular establishment as provided in G.O.(P) No.106/85/PW & T dated 17.9.1985 and G.O.(P) No.6/90/PW & T dated 20.1.1990. 9. Per contra, Sri.T.C.Krishna, the learned counsel appearing for the first respondent contended that in the earlier round of litigation, no such plea was raised and even in the present writ petition no such contention is raised and therefore, the appellant cannot rely on section 4 of the Kerala Public Services Act, 1968 to contend for the position that reference to the Industrial Tribunal and the award passed by the Tribunal are without the authority of law or without jurisdiction. The learned counsel also contended that the Tribunal had on the evidence adduced before it held that the workers represented by the first respondent union have been working in the Neendakara Fishing Harbour Project prior to and after its commissioning and that the W.A.No.472/2008 8 finding of the Industrial Tribunal on the evidence available before it cannot be characterised as perverse, warranting interference in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. 10. We have considered the rival submissions made at the Bar by the learned counsel appearing on either side. We have also gone through the pleadings and the materials on record including the judges' papers in O.P.No.9237 of 1990 and W.A.No.791 of 1995 and the award passed by the Industrial Tribunal in the first instance and Ext.P2 award which is impugned in the present proceedings. The dispute raised by the first respondent union was referred to the Industrial Tribunal, Kollam for adjudication under section 10 (1) (c) and (d) of the Industrial Disputes Act, 1947 as per G.O.(Rt.) No.1891/88/LBR dated 18.10.1988. The said Government order reads as follows: “Whereas the Government are of opinion that an industrial dispute exists between the Executive Engineer, Neendakara Fishing Harbour Project, Harbour Engineering Department, Sakthikulangara P.O., Quilon and the workmen of the above Project represented by the General Secretary, Neendakara Port and Fishing Harbour, C.L.R.Workers Union, U.T.U.C., Neendakara P.O. in respect of matters mentioned in the annexure to this order. And whereas, in the opinion of Government it is necessary to refer the said industrial dispute for adjudication:- Now, therefore, in exercise of the powers W.A.No.472/2008 9 conferred by section 10(1)(c)/(d) of the Industrial Disputes Act of 1947 (Central Act XIV of 1947) the Government hereby direct that the said industrial dispute be referred for adjudication to the Industrial Tribunal, Quilon. The Industrial Tribunal will pass the award within a period of three months.” The issues referred for adjudication which are set out in the Annexure to the said order, are as follows: “(1) Confirmation of workers.(2) Revision of Wage rates. (3) National and Festival Holidays. (4) Supply of Uniforms. (5) Issuance of Identity Cards. (6) Overtime wages for extra work. (7) Annual Bonus for 1985-86. (8) Filling up of existing vacancies.” 11. The above referred Government order and the description of the first respondent union disclose that the workers who had raised the dispute were Casual Labour Roll workers (CLR workers). In that dispute the then Executive Engineer filed a statement dated 16.11.1988 wherein, inter alia, it was stated that casual workers were engaged based on need and that they are not entitled to regularisation or any of the other benefits claimed by them. Thereafter, the then Executive Engineer filed a statement wherein he questioned the jurisdiction of the Industrial Tribunal to adjudicate on the dispute. The relevant averment therein reads as follows: “നനീണ്ടകര മതത്സൃ ബന്ധന തതറമതഖതത്തിന്‍െെറ ഇന്‍െന്‍വെസസററത്തിഗഗേഷന്‍ ഗജജോലത്തികളതളും തതടരരതള്ള നത്തിരരജോണ പപ്രന്‍വെരതനന്‍വെതളും ഗകരള സരരജോരത്തിന്‍െെറ തതറമതഖ എന്‍ജത്തിനനീയറത്തിളുംഗേസ ന്‍വെകതപജോണസ W.A.No.472/2008 10 നടതത്തിന്‍വെരതരതസ. ഗകരള സരരജോരത്തിന്‍െെറ ഒരതഗസന്‍വെന ന്‍വെകതപജോണസ ഇതസ. അലസലജോെത ഒരത ന്‍വെവജോപജോര ന്‍വെത്സൃന്‍വെസജോയ സജോപനമലസല. ആയതത്തിനജോല്‍ ഇന്‍വെത്തിെട ഗജജോലത്തി െചെയസതതന്‍വെരതര ദത്തിന്‍വെസരക്കൂലത്തിരജോരജോയ െതജോഴത്തിലജോളത്തികളതെട തരരളും ഇന്‍ന്‍ഡസസടപ്രത്തിയല്‍ ടടപ്രബക്കൂണലത്തിന്‍െെറ അധത്തികജോരപരത്തിധത്തിയത്തില്‍ ന്‍വെരതരതജോഗണജോെയരസ പരത്തിഗശജോധത്തിഗരണ്ട- തജോണസ.” The English translation thereof is given below: “Investigation and construction of the Neendakara Fishing Harbour is done by the Harbour Engineering Department of the Government of Kerala. It is a service department of the Government and not an industrial establishment. Therefore, the question whether the dispute raised by the employees engaged on daily wage basis is within the jurisdiction of the Industrial Tribunal, has to be examined.” It was also contended that the employees are not entitled to regularisation in service. 12. The award initially passed by the Industrial Tribunal on 13.7.1989 specifically notices the said contention. As held by the Apex Court in National Engineering Industries Ltd. v. State of Rajasthan and others ((2000) 1 SCC 371) the Tribunal could not have examined the validity of the reference made by the Government for the reason that the Tribunal gets jurisdiction only on the basis of the reference. The Tribunal could have in our opinion only considered the question whether the dispute is an industrial dispute in view of the stand taken by the appellant and whether the establishment to which W.A.No.472/2008 11 the dispute relates is an industry at all. However, without examining these aspects, the Tribunal proceeded to examine the issue with reference to the oral evidence adduced by two of the workers and held that in the absence of any evidence, oral or documentary, on the side of the management, the claim of the workers merits acceptance. An award was accordingly passed declaring that the workers are entitled to be confirmed in various categories of posts and to all other reliefs claimed by them as stated in the order of reference. 13. The appellant thereupon filed O.P.No.9237 of 1990 in this Court. In that original petition also, a contention was raised that the department is exercising sovereign functions, that it is not an industry as defined in the Industrial Disputes Act, 1947, that the workers are only casual workers working on daily wage basis and that they are not entitled to any relief. It was also contended that the objection regarding jurisdiction raised by the appellant ought to have been considered as a preliminary issue and a finding entered thereon. The learned single Judge who heard O.P.No.9237 of 1990 held following the decision of the Apex Court in Bangalore Water Supply and Sewerage Board v. Rajappa ((1978) 2 SCC 213) that the fishing harbour project is an industry governed by the Industrial Disputes Act, 1947. The learned single Judge proceeded to hold that as the workers W.A.No.472/2008 12 were not appointed for a specific period or for a particular work, the Tribunal had jurisdiction to decide the dispute. The learned single Judge thereafter considered the case of the appellant on the merits and held that no opportunity was denied to the appellant to participate in the proceedings and that the evidence was closed in view of the submission made by the learned counsel for the management and that he has no evidence to adduce. The award was accordingly upheld. 14. The appellant challenged the decision of the learned single Judge in O.P.No.9237 of 1990 by filing W.A.No.791 of 1995. In that writ appeal also, inter alia, it was contended that the department is not an industry as defined in the Industrial Disputes Act and that the workers are not entitled to regularisation. It was pointed out that if the claim of the workers is upheld the liability of the State for a limited period would come to Rs.9,72,342/- and that if the award is implemented in full the expenditure which the Government will incur will increase many fold. The writ appeal was however dismissed by judgment delivered on 29.9.1998. It appears that the provisions of the Kerala Pubic Services Act, 1968 were not brought to the notice of the Division Bench. The appellant carried the matter in appeal by filing a Special Leave Petition before the Apex Court. The Apex Court granted special leave, allowed the appeal, set aside the award passed W.A.No.472/2008 13 by the Industrial Tribunal and the judgments of this Court and remitted the matter for fresh disposal to the Tribunal. The Apex Court observed that the nature of the relationship between the workmen and the appellant need to be decided before other questions referred to the Tribunal are taken up for consideration. However, even after remand, the Industrial Tribunal did not specifically deal with the said issue, though it was specifically contended that as the workers were not appointed to any post in accordance with law, but only engaged on the basis of need, they have no right to hold the posts and therefore, they are not entitled to be regularised in service or to claim benefits available to regular employees. The Tribunal held that as the management has no case that after the project was commissioned, the services of workmen who were employed at the time of commencement of the project were terminated, they are entitled to all the benefits claimed by them except payment of over time wages. 15. As noticed earlier, a Full Bench of this Court had in Umayammal v. State of Kerala (supra) held that even in Government departments discharging sovereign functions, if there are units which are industries and they are severable, they can be considered to come within the meaning of section 2 (j) of the Industrial Disputes Act. The Full Bench also held that though Rule 9 of the Kerala W.A.No.472/2008 14 State & Subordinate Service Rules, 1958 cannot be said to be a provision which expressly or by implication repeals the provisions in Chapter V-A of the Industrial Disputes Act, as regards temporary Government employees who are workmen coming within the ambit of the Industrial Disputes Act, it may be possible in spite of section 25-J of the Industrial Disputes Act to exclude the operation of the provisions in Chapter V-A thereof by a positive provision in any new legislation. In coming to the said conclusion, the Full Bench had relied on the decision of the Apex Court in Bangalore Water Supply and Sewerage Board v. Rajappa (supra). The decision in Umayammal v. State of Kerala (supra) was rendered on 7.10.1982. Immediately thereafter, by the Kerala Public Services Act (Amendment) Act, 1983 (Act 4 of 1984), section 4 was introduced in the Kerala Public Services Ac, 1968 with effect from 1.10.1981. Section 4 of the Kerala Public Services Act, 1968 reads as follows: “4. Act and rules thereunder to apply to apply to certain persons notwithstanding anything in the Industrial Disputes Act or any other law:- Notwithstanding anything contained in Chapter V-A or in any other provision of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) or in any other law for the time being in force, or in any judgment, decree or order of any court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and the conditions of service (including termination of W.A.No.472/2008 15 service) of any person appointed to any such service or post shall be governed by the provisions of this Act and th Rules made or deemed to have been made thereunder.” The statement of objects and reasons in the Kerala Public Services (Amendment) Act, 1983 reads as follows: “Statement of Objects and Reasons:- A Full Bench of the Kerala High Court in its judgment dated the 7th October, 1982, in certain original petitions filed by provisional or temporary employees working in Government Departments, Government Companies, Statutory Corporations and local bodies has held that the petitioners, excluding those discharging inalienable Constitutional functions like administration of justice, are entitled to the benefit of protection of Chapter V-A of the Industrial Disputes Act, 1947 and that their services could be terminated, except to give place to permanent hands regularly recruited by the PSC, only in accordance with the provisions of the said Act. The High Court has also observed that in spite of Section 25-J of the I.D.Act, 1947 it may be possible to exclude the operation of the provisions of Chapter V-A of that Act by a positive provision in any new Legislation. 2. According to the rules now in force in the State, temporary employees are allowed to continue in service only for a period of 180 days and cannot, in the normal course, be re-employed even if the vacancies continue to exist beyond that period. If more than one temporary employee are working in a Department or Office, the persons to be discharged as per those rules are those who are appointed first. 3. The application of the I.D.Act to Government servants will cause administrative difficulties to Government. It was, therefore, considered necessary to exclude persons appointed to public services and posts in connection with the affairs of the State from the operation of the I.D.Act, by amending the Kerala Public Services Act, 1968. Accordingly, the Kerala Public Services W.A.No.472/2008 16 (Amendment) Ordinance, 1983 (5 of 1983) was promulgated by the Governor on the 8th day of February, 1983. 4. A Bill to replace the said Ordinance by an Act of the Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session which commenced on the 25th day of February, 1983 and ended on the 30th day of March, 1983. In order to keep alive the provisions of the said Ordinance the Kerala Public Services (Amendment) Ordinance, 1983 (16 of 1983) was promulgated by the Governor on the 6th day of April, 1983. 5. A Bill to replace Ordinance 16 of 1983 by an Act of the Legislature could not be introduced and passed by the Legislative Assembly during its session which commenced on the 20th day of June 1983 and ended on the 4th day of August, 1983. In order to keep alive the provisions of Ordinance 16 of 1983, the Kerala Public Services (Amendment) Ordinance, 1983 (36 of 1983), was promulgated by the Governor on the 5th day of October, 1983. The Bill seeks to replace the Ordinance 36 of 1983 by an Act of the State Legislature.” The statement of objects and reasons notices that the application of the Industrial Disputes Act to Government departments will cause administrative difficulties to the Government and therefore, it was considered necessary to exclude persons appointed to public services and posts in connection with the affairs of the State from the operation of the Industrial Disputes Act, 1947. 16. The Kerala Public Services Act (Amendment) Act, 1983 received the assent of the President on 5.1.1984 and was published in the Kerala Gazette Extraordinary dated 7.1.1984. Thus, on and with W.A.No.472/2008 17 effect from 1.10.1981, the provisions of the Industrial Disputes Act, 1947 do not govern the appointment of any person to any public service or posts in connection with the affairs of the State of Kerala. It was long after section 4 was introduced in the Kerala Public Services Act, 1968 that the Government referred the dispute which has led to these proceedings to the Industrial Tribunal for adjudication. 17. The Apex Court has in Newspapers Ltd. v. Industrial Tribunal, Uttar Pradesh and others (1957-II LLJ 1) held that in spite