IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.29492 of 2007, 30748 to 30753 of 2008, 2735 & 2736 of 2009,6152 of 2009 & 6169 of 2009 and M.P Nos.1/08 (6 Nos) MP No.1/2007, MP No.1/10 W.P.No.29492/2007 The Management State Transport Corporation Ltd. Pallavan Salai Chennai. ... Petitioner vs. 1.The Proceedings Officer Labour Court, Chgennai. 2.P.K.Latha ... Respondents WP No.30748 to 30753/2008, 2725, 2736, 6152 & 6169/2009 State Express Transport Corporation (Tamilnadu Division) Ltd., rep. by its Managing Director, Pallavan Salai, Chennai-600 002 ..Petitioner in all WPs -VS- 1. The Presiding Officer, Principal Labour Court, Chennai ..Respondent in all WPs P.Murali ..2nd Respondent in WP 30748/08 R.Sudhakar @ R.Parthasarathy ..2nd Respondent in WP 30749/08 J.Palani ..2nd Respondent in WP 30750/08 G.Sridhar Babu ..2nd Respondent in WP 30751/08 S.Umamaheswari ..2nd Respondent in WP 30752/08 P.Varadan @ Varadharaj ..2nd Respondent in WP 30753/08 P.Tirupathi ..2nd Respondent in WP 2735/09 V.Ravi ..2nd Respondent in WP 2736/09 G.Krishnaswamy ..2nd Respondent in WP 6152/09 R.Sakthi ..2nd Respondent in WP 6159/09 https://hcservices.ecourts.gov.in/hcservices/ Prayer in all WPs This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari calling for the records of the first respondent in its Award made in I.D.No.681 of 2001 dated 22.09.2006, and I.D.Nos.333, 334, 338, 332, 339, 336, 337, 335, 478 and 475/2001, dated 31.10.2007 respectively and quash the same. For Petitioner : Mr.G.Muniratnam in WP 30748 to 30753/08, 2735 & 2736, 6152 & 6169/09 Mr.Ravi Bharathi in WP 29492/07 For Respondents : Mr.L.Rajasekar – for R-2 in all Petitions COMMON ORDER Petitioner in all these writ petitions are the State owned Transport Corporation. 2. W.P.No.29492 of 2007 challenges an award passed by the first respondent/Labour Court, Chennai in I.D.No.681 of 2001. By that award, the Labour Court directed reinstatement of the contesting respondent with backwages, continuity of service and other attendant benefits. The Labour Court held that the contesting respondent was employed as counter staff and her services were terminated without following formalities under section 25-F of the I.D. Act and as she has completed 240 days, she is entitled to reinstatement with backwages. In that writ petition notice regarding admission was granted on 10.09.2007 and interim stay was granted. Subsequently, writ petition was admitted on 28.10.2010. 3. In W.P.Nos. 30748 to 30753 of 2008 and 2735 & 2736 of 2009, the petitioner-Corporation challenge the common award dated 31.10.2007 passed by the Principal Labour Court, Chennai made in I.D.Nos. 332 to 339 of 2001. The Labour Court combined all the industrial disputes and conducted a joint trial and thereafter passed the impugned award. By the impugned award, the Labour Court directed reinstatement of the contesting respondents with continuous service and all other attendant benefits but without backwages. These writ petitions were admitted on 05.01.2009 and in the interim stay applications, only notice were ordered. 4. In W.P.No.6169 of 2009, the challenge is to the award made in I.D.No. 475 of 2001 passed by the Principal Labour Court, Chennai. By award dated 31.10.2007, the Labour Court held that the contesting respondents non-employment was not justified and their retrenchment was invalid, as mandatory condition precedent were not followed and therefore, they are entitled to reinstatement but without backwages. In W.P.No.6152 of 2009, the challenge is to the https://hcservices.ecourts.gov.in/hcservices/ award passed by the Labour Court in I.D.No.478 of 2001. By award dated 31.10.2007, the Labour Court directed reinstatement of the contesting respondent with continuous service and other attendant benefits but without backwages. Both the writ petitions were admitted on 13.4.2009 and pending writ petitions, interim stay was granted. Subsequently an application was filed to vacate the interim order. This court by order dated 15.12.2009 directed the last drawn wages of the two contesting respondents to be paid by the Corporation. 5. On notice from this court, Mr.L.Rajasekaran learned counsel rendered appearance for all the contesting respondents. 6. Mr.G.Muniratnam, learned counsel appearing for the Transport Corporation submitted that the workers were not engaged on a continuous basis and their employment was purely temporary and for intermediate period and hence, the question of compliance under section 25-F of the I.D. Act does not arise. Even otherwise, the question of reinstatement of such temporary employment cannot be granted. But in each of the writ petition, the Labour Court had recorded the evidence both oral and temporary and gave a specific finding of fact that the workmen have completed 240 days of service and the condition precedent under section 25-F of the I.D. Act was not followed and therefore, the termination was illegal. Such finding of fact cannot be interfered with. 7. The contention raised by the learned counsel for the petitioner-Corporation also cannot be countenanced for more than one reason. It must be noted that the state Government issued G.O.Ms.No.41, Transport (C.1) Department dated 13.7.2006. By the said G.O., when the transport corporation were permitted to go for direct recruitment and also recruited persons, who are first completed 240 days and who are retrenched also got court orders. In view of the fact that the said G.O. while guaranteed the right of re-employment under Section 25H of the I.D. Act to the retrenched workmen and cases which are covered by Court orders, the newly appointed candidates were informed that no posting order can be issued in view of the so-called preferential right made in favour of the the retrenched workmen. This, once again, gave rise to a spate of writ petitions from two different quarters. The impugned order passed by the State Government came to be heard by this court in a batch of writ petitions in K.Kumaran v. State of Tamil Nadu reported in 2007(3) MLJ 233. By the said G.O., the State Government gave delegated powers to the managers of the Corporations to themselves ascertain the number of days worked by the workmen and grant relief. This is apart from the cases were workmen have already been having court award in their favour. This court also held that it may become a source of corruption. Therefore, wherever the workmen ascertain that they have completed 240 days and eligible for protection under section 25F of the I.D. Act or in cases where they have not completed 240 days but claiming right under section 25F for right of re-employment, this court held as a matter of fact, they must go to the labour court and establish their rights for protection under Chapter 5A https://hcservices.ecourts.gov.in/hcservices/ of the I.D. Act. In paragraph Nos. 36 to 38 it was stated as follows: 36. These two sub-paragraphs found in paragraphs 4(ii) and 4(iii) are completely contrary to the preferential right carved out under Section 25H of the I.D. Act as interpreted by the Apex Court and, therefore, these two paragraphs, viz., 4(ii) and 4(iii) of G.O.Ms.No.41 Transport Department dated 13.7.2006, which are sought to be enforced by the petitioners in these writ petitions and several other writ petitions, had to be rejected for the following reasons: (i) Right of re-employment under Section 25H of the I.D. Act will have to be determined only if an employee's retrenchment comes within the definition of the term 'retrenchment' found in Section 2(oo) of the I.D. Act and that it is not hit by the exception found in sub-section (bb) introduced by Central Act 49 of 1984 with effect from 18.8.1984. (ii) Further, the claims of workmen will have to be determined in terms of paragraph 139(3)(b) of the order passed by the learned Judge in the batch of cases, disposed on 14.12.2006, wherein the learned Judge clearly states that only persons who are qualified under Section 25F of the I.D. Act, are eligible for re- employment but it will not apply to persons, who have not actually worked under the Corporation but made a bogus claim. (iii) The workmen, who have approached this Court including the petitioners, though made a false claim about the length of their service, and by the impugned order, the respondent Corporation had taken a definite stand that they had worked less than 20 days and 11 days that too, they had worked in vacancies due to unforeseen circumstances like strike, festivals and large scale absentism, are not eligible for any preferential treatment. 37. In view of the dispute over their claim, the said employees will have to approach the appropriate Labour Court to establish the total number of days worked by them and that their subsequent non-employment and their claim preference for re-employment was guaranteed under Section 25H of the I.D. Act. It is for them to prove to the satisfaction of the Labour Court that they were actually retrenched in terms of the main definition under Section 2(oo) of the I.D. Act and not covered by the exception found under sub-section (bb) of Section 2(oo) of the I.D. Act. 38. As can be seen from the various decisions of the Supreme Court referred to above, viz., Jaipur Development Authority, State of Rajasthan and https://hcservices.ecourts.gov.in/hcservices/ Gangadhar Pillai's cases, even in pre-1984 cases, the Labour Court has discretion to award compensation and not reinstatement since the entry into employment was not proper and it was made as a stop gap arrangement. Though the object of the first respondent in issuing G.O.Ms.No.41 Transport Department dated 13.7.2006 to accommodate persons covered by paragraph 4(i) may be inevitable, but with reference to paragraphs 4(ii) and 4 (iii) of the G.O., the said exercise cannot be undertaken by the second respondent Corporation either until further orders are passed by this Court in cases which are pending consideration, or in other cases, the workmen get declaration from the appropriate Labour Court after establishing that they were actually retrenched in terms of Section 2(oo) of the I.D. Act and their cases do not fall under sub-section (bb) of Section 2(oo) of the I.D. Act. The said judgment was also upheld by the Division Bench of this court. Taking cue from the orders passed by this court, the workmen have appeared before the Labour court and also have established that they have completed 240 days and therefore this court exercising power under Article 226 of the Constitution of India, is not inclined to interfere with the award passed by the Labour Court. Even in cases where workmen temporarily appointed and there is infraction of section 25-F of the I.D. Act, the Supreme Court has held in (Rajasthan Lalit Kala Academy v. Radhey Shyan) reported in 2008(13) SCC 248 that in cases of invalid termination under section 25-F(2) of the I.D. Act, the relief of backwages is normal rule but at the same time, the Labour court is also mandatory to take note of several other factors including the adhoc employment or being employed in daily wages or temporarily employed. 8. In W.P.No.29492 of 2007, the labour court had denied wages in respect of other contesting respondents. Therefore, in the other cases it cannot be said that labour court has exercised an improper jurisdiction in ordering reinstatement. The Labour court award in respect of except in case W.P.No.29492 of 2007 does not call for any interference. 9. In the another judgment of the Supreme Court in Harinder Singh v. Punjab State Warehousing Corporation reported in 2010(3) SCC 192, it has been held as follows: "30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'être of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are https://hcservices.ecourts.gov.in/hcservices/ illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. 31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer—public or private." 10. In the light of the above all the writ petitions, except W.P.No.29492 of 2007 stand dismissed. In W.P.No.29492 of 2007 while the workmen is eligible for reinstatement with continuity of service and other attendant benefits, the grant of backwages is not supported by the judgment rendered above. Therefore, in respect of I.D.No.681 of 2001 dated 22.09.2006, the award will stand modified and the workman is eligible for reinstatement with continuity of service with other attendant benefits but without backwages. 11. In the result, W.P.No.29492 of 2007 is partly allowed as indicated above. W.P.Nos.30748 to 30753 of 2008, 2735 & 2736 of 2009,6152 of 2009 & 6169 of 2009 stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar rj https://hcservices.ecourts.gov.in/hcservices/ To 1. The Prosiding Officer Principal Labour Court, Chgennai. 2.The Section Officer, VR Section, High Court, Madras 1 cc To Mr.G.Muniratnam, Advocate, SR.44548 1 cc To Mr.M.Ravibharathi, Advocate, SR.44319 6 cc To Mr.L.Rajasekar, Advocate, SR.44333 to 44338 W.P.Nos.29492 of 2007, 30748 to 30753 of 2008,2735 & 2736 of 2009, 6152 of 2009 & 6169 of 2009 and connected M.Ps. MSM(CO) RH (8.9.11) https://hcservices.ecourts.gov.in/hcservices/