IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.7.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal No.169 of 2007 and M.P.No.1 of 2008 C.Wilbert ... Appellant/2nd Respondent Vs. 1.The Manager of Indian Institute of Technology, represented by its Director, Chennai-600036. 2.The Assistant Registrar (IC & SR) Indian Institute of Technology, Chennai-600036. 3.The Presiding Officer, Principal Labour Court, Chennai-600104. ... Respondents / Petitioners 1 and 2 and First Respondent * * * Writ Appeal filed under Clause 15 of the Letters Patent, as against the order of the learned single Judge dated 1.12.2006 made in W.P.No.26926 of 2004 filed under Art.226 of the Constitution of India for issuance of a Writ of certiorarified calling for the records relating to be award of the First Respondent in I.D.93 of 1997 dated 28/4/2004 and quash the same. * * * For appellant : Mr.C.Umashankar For R.1 : Mr.Vijay Narayanan, Senior Counsel for Mr.R.Parthiban for R1 R.2 : No appearance * * * https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT ELIPE DHARMA RAO, J. The appellant was initially appointed as NMR for six months w.e.f. 15.11.1988 at JEE Office of the IIT, Madras and thereafter as an NMR helper in the Central Stores for another period of 15 days. He applied for the post of a Project Attendant in Centre for Industrial Consultancy and Sponsored Research, the second respondent herein, and was appointed as such in a project called 'Niharaka Lehan' for a period of six months, by order dated 22.5.1992, on a consolidated wages of Rs.1,000/= per month and on completion of the said term, he was relieved by the order dated 24/25.11.1992 on and from the afternoon of 24.11.1992. Thereafter, he was again engaged for another period of six months from 8.12.1992 to 7.6.1993 for another project on a consolidated salary of Rs.1,300/= per month and he was relieved on 7.6.1993. Thereupon, the petitioner was again engaged as a Project Attendant in another project called 'Testing of Ramji Combustion' in the Aero Space Engineering Section, for a period of six months from 11.4.1994 to 10.10.1994 on a consolidated salary of Rs.1,200/= per month. He was again appointed in the same project for a period upto 31.12.1994 from 25.10.1994 and he was relieved from duty on 31.12.1994, but his services were extended upto 14.3.1995 in the same project and thereafter, he was relieved from the said project on and from 14.3.1995 by order dated 15.3.1995. Thereafter, the appellant was again engaged in another project for a period of one month and ten days from 20.3.1995 to 30.4.1995 as a Project Attendant on a consolidated salary of Rs.1,250/= per month in a project called 'Studies on Advanced Propulsion System for Aero Space Vehicles' and he was relieved of his duties from 30.4.1995. All these facts were admitted by the respondents in their counter filed before the Labour Court. But, according to the appellant, even after 30.4.1995, he was again appointed by the respondent and ultimately relieved on 14.3.1996. This statement of the appellant was not denied by the respondents. Therefore, it is seen that from 22.5.1992, till 14.3.1996, the appellant was serving the respondents in one project or other. 2. Thereafter, the appellant approached the Labour Officer-III, Madras for his 'reinstatement' in service, but since the respondents have refused to comply with his request, a failure report came to be passed by the Labour Officer on 3.1.1997, whereupon the appellant raised an Industrial Dispute. 3. Before the Labour Court, the appellant has contended that he is the employee of the respondents, since he worked for more than three years, though there were artificial breaks during those periods and that he served for more than 240 days and thus he is entitled for reinstatement. This contention of the appellant was refuted by the first respondent, contending that the appellant was only a temporary https://hcservices.ecourts.gov.in/hcservices/ employee of the projects undertaken by the second respondent, which are sponsored by the outside agencies and therefore, the same does not confer on him any right. The Labour Court has accepted the claim of the appellant/workman and has ordered that the non-employment of the appellant is not justified and that the workman is entitled to the relief of reinstatement with backwages and other attendant benefits. This Award of the Labour Court was challenged by the respondents 1 and 2 herein by filing W.P.No.26926 of 2004 and a learned single Judge of this Court, by the order dated 1.12.2006, has set aside the Award of the Labour Court. Aggrieved by the same, the workman has come forward to prefer this appeal. 4. From the materials placed on record it is seen that the appellant was engaged by the respondents for one project or other as Project Attendant for the period from 22.5.1992 to 14.3.1996, with some breaks. A strange argument has been advanced on the part of the respondents, as if both the respondents 1 and 2 are separate entities and that the identity card was issued only by the second respondent, and not by the first respondent. We are not in a position to accept this argument advanced on the part of the respondents since on a thorough perusal of the entire materials placed on record, we are able to see that the second respondent is nothing but an offshoot of the first respondent and all the staff members are being nominated by the first respondent, from out of its own organisation. The very nomenclature of the second respondent that 'the Assistant Engineer (IC & SR), Indian Institute of Technology, Chennai-36', would suggest that it is only an offshoot of the IIT. Further, W.P.No.26926 of 2004 was filed by both the respondents 1 and 2 herein, joining hands with each other and the affidavit was sworn-in by the Registrar of the first respondent on behalf of both the writ petitioners. Therefore, we have no hesitation to hold that this argument has been invented only to claim immunity from the actions of the second respondent. When such is the position, the other argument advanced on the part of the respondent that the workman was not employed or engaged by the IIT has no legs to stand. 5. The other argument advanced on the part of the respondents is that separate appointment orders were issued to the workman, specifying the period of his appointment/engagement and therefore, the question of artificial breaks wilfully does not arise. Though separate appointment orders were issued for different projects, the appointing authority is one and the same i.e. the second respondent and that too the breaks are very short. Therefore, a legal presumption would arise that there is always a need for such labourers for the respondents so as to be engaged for such projects and projects are being undertaken regularly, without any break, though breaks are shown in the services of such labourers, so as to brand and bring them within the strict sense of 'casual labour', so https://hcservices.ecourts.gov.in/hcservices/ as to deny benefits to them. The nature of the work is also not seasonal, since always there are projects for the respondents to undertake and thus there was always a need for such labourers. 6. It is to be pointed out that in spite of a specific direction issued by this Court on 8.4.2008, the respondents have not produced the details of employment of the petitioner and details regarding the Schemes relating to regularisation of the services of such casual labourers. It is not the case of the respondents that the appellant was not engaged for not having any other projects. When the appellant has specifically pleaded that a similarly situated casual labourer by name Vasanthakumari was regularised, pursuant to the conciliation proceedings, there was no answer from the respondents, explaining the circumstances, as to how the appellant's case was not considered. 7. It is also seen from the proceedings of the second respondent dated 19.2.1988, which has also been marked as Ex.W.14 before the Labour Court that a similarly situated person by name Mr.S.Yoganathan, a Junior Project Assistant in the second respondent was brought over to the regular establishment of the Institute with effect from 1.4.1984 and he was designated as Lower Division Clerk in the unrevised pay scale of Rs.260-6-290-EB-6-326-8-366-EB-8-390-10- 400. Likewise, one Mr.G.Mani, Project Attendant of the second respondent was also taken into regular establishment of the Institute with effect from April 1984, by the proceedings of the Indian Institute of Technology, in O.O.No.272, dated 27.10.1988 and he was designated as 'Helper'. This proceeding of the Indian Institute of Technology, Madras have been marked as Ex.W.9 before the Labour Court. This fact has also not been disputed by the respondents. It is to be mentioned that as against such a clinching evidence produced by the appellant, the respondents have not produced any material, except relying on various appointment orders and relieving orders, which would rather give support to the case of the workman. 8. When such is the clinching and undisputed material available on record, it is heartening, rather pathetic, to note from the letter dated 14.4.2008 addressed by the Registrar of the IIT Madras to their counsel, which was produced before this Court, that a patently wrong statement has been made by the Registrar of the IIT, Madras to the effect that: "No project staff has so far been absorbed/employed either in the IC&SR or in the Institute.... " 9. The only contention offered on the part of the respondents is that the said Vasanthakumari stands on a different footing, without explaining as to how she stands on a different proceedings. Regarding the taking into the regular establishment of the other two employees viz. Mr.S.Yoganathan and Mr.G.Mani, there is not even a https://hcservices.ecourts.gov.in/hcservices/ whisper by the respondents. When the appellant has pressed into service a copy of the letter dated 6.12.1995, addressed by the Joint Secretary (Administration), Council of Scientific and Industrial Research, New Delhi to the Heads of All National Labs, Institutes, by marking the same as Ex.W.8 before the Labour Court, whereby the copy of the revised scheme of 'Casual Workers Absorption Scheme of CSIR, 1995' providing for absorption of the casual workers was forwarded, the respondents have stated that the same has no application to the IITs, since IIT and CS&IR are different entities. Even accepting the same, if we see at the copy of the order dated 6.2.1995 passed by the Conciliation Officer in a proceeding under Section 12(3) of the Industrial Disputes Act, the said Vasanthakumari raised the industrial dispute against the respondents IIT, Madras, wherein they have agreed to absorb her into the services, but when the question of absorbing the appellant arose, they have denied the same benefit to the appellant, resulting in failure of the conciliation proceedings, followed by initiation of I.D.No.93 of 1997 before the Labour Court by the appellant/workman. In case of other two similarly situated persons viz. Mr.S.Yoganathan and Mr.G.Mani, absorption took place without any problem for them. 10. The absorption of the said Vasanthakumari cannot also be branded as illegal, so as to say that there cannot be any equality in perpetrating illegality, since the IIT, Madras and the said Vasanthakumari have agreed for certain conditions before the Conciliation Officer, pursuant to initiation of the industrial dispute by the said Vasanthakumari. 11. On a thorough perusal of the entire materials placed on record, we are able to see that though the appellant was offered employment in one 'project' or other, the same was not the position, when he moved the legal forum, for regularisation of his services and it is also not the case of the respondents that thereafter they have not recruited any persons even as casual labour. It is also to be pointed out that the conduct and character of the appellant was never under question. From the materials placed on record, we are able to see that the respondents are undertaking one project or other and there is always the need of staff for that purpose, lest, the appellant would not have been appointed in many projects. Probably, because of this reason, the respondents have readily accepted to absorb the said Vasanthakumari, a similarly situated casual labour, when she raised the industrial dispute since there was already a precedent in absorbing Mr.S.Yoganathan and Mr.G.Mani and it seems, only to curtail/restrain others from raising similar demands, such an altered stand has been taken by the respondents, much prejudicial to the workmen like the appelant. 12. The learned senior counsel for the respondents would rely on the following judgments of the Honourable Apex Court: https://hcservices.ecourts.gov.in/hcservices/ "1. STATE OF RAJASTHAN vs. SARJEET SINGH AND ANOTHER [(2006) 8 SCC 508], 2.LAL MOHAMMAD AND OTHERS vs. INDIAN RAILWAY CONSTRUCTION CO. LTD. AND OTHERS [(2007) 2 SCC 513], 3.GANGADHAR PILLAI vs. SIEMENS LTD. [(2007) 1 SCC 533] and 4.HARYANA URBAN DEVELOPMENT AUTHORITY vs. OM PAL [(2007) 5 SCC 742]." By citing the above judgments the learned senior counsel would contend that in the above judgments, the Honourable Apex Court has specifically hold that 'contract labours, who are appointed for a specific project, have no right to seek for absorption'. There is no dispute with regard to the said proposition arrived at by the Honourable Supreme Court. But, it is the settled position of law that the factum of continuation or non-continuation of the projects assumes importance, while considering such claims of the workmen. Admittedly, in the case on hand, as has already been discussed supra, the appellant was engaged by the respondents in one project or other, though with some breaks and the respondents are always undertaking one project or other and there is continuous need of such labour. 13. In the case relied on by the learned senior counsel for the appellant reported in 2006 (8)SCC 508, when a joint scheme was taken up by State Government and Gram Panchayat for supply of water, both contributing 50% of the costs each, since there was no evidence to show that the workman therein was appointed by the State, but only by the Sarpanch, the Honourable Supreme Court has held against the workman therein. But, in the case on hand, the projects were undertaken by the respondents and appointments were made by them and salaries were also paid by them, besides imposing service conditions and fixing the salaries. Further more, there are continuous projects for the respondents to undertake. Therefore, the ratio laid down by the Honourable Apex Court in the above case, has no application to the facts of the case on hand. 14. Likewise, in the cases reported in 2007 (2) SCC 513, 2007 (1) SCC 533 and 2007 (5) SCC 742, the appointment orders were issued by the concerned contractors only for one project and there was no evidence to show that thereafter in spite of continuation of projects, the employees were not accommodated. But, in the case on hand, the appointment orders were issued by the respondents and as has already been discussed supra, the respondents were undertaking one project or other continuously and in spite of such availability of projects, the appellant was not accommodated, even though some of the similarly situated persons were absorbed. Therefore, all the above judgments relied on by the learned senior counsel for the respondents are factually distinguishable. 15. Likewise, in the case of PUNJAB ELECTRICITY BOARD vs. DARBARA SINGH [(2006) 1 SCC 121], relied on by the learned single Judge while https://hcservices.ecourts.gov.in/hcservices/ rejecting the claim of the appellant herein, the workman therein was engaged with a condition that his engagement will come to an end, once a regular employee is appointed and accordingly, when a regular employee was appointed, the same was challenged by the workman therein after a long delay of about eight years. Only in those circumstances, the Honourable Apex Court has held as against the workman therein, which is not the case in hand, since though there was continuous project work and though similarly placed persons were absorbed/taken to regular establishment, the same benefit was denied to the appellant, apparently because of initiation of legal proceedings by the appellant. Therefore, the above judgment relied on by the learned single Judge also has no application to the peculiar facts and circumstances of the case on hand. 16. Thus, on a thorough analysis of all the facts and circumstances of the case, it is to be held that even though the work was continuous in nature and the respondents are undertaking one project or other, the appellant was given breaks, apparently to restrain him from making any claim of regularisation, which would definitely be an unfair labour practice, exhibited on the part of the respondents. Further more, when similarly situated persons were either absorbed or taken to the regular establishments, the appellant was denied the same benefit by the respondents, thus discriminating him and unequalising the equals, that too without offering any reasons for the same. 17. In these peculiar facts and circumstances of the case, we have no hesitation to hold that the learned single Judge has not properly appreciated the facts and circumstances of the case. Therefore, we set aside the order of the learned single Judge and we direct that the appellant also should be absorbed into the services of the respondents, on the same terms and conditions imposed on the said Vasanthakumari. However, it is made clear that the appellant is not entitled for any backwages, applying the principle of 'no work, no pay'. With this modification to the order of the labour Court, this appeal is allowed. No costs. Consequently, M.P.No.1 of 2008 is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar Rao https://hcservices.ecourts.gov.in/hcservices/ To 1. The Director, Indian Institute of Technology, Chennai-600036. 2. The Assistant Registrar (IC & SR) Indian Institute of Technology, Chennai-600036. 3. The Presiding Officer, Principal Labour Court, Chennai-600104. +1 cc to Mr.C.Umashankar, Advocate, SR.No.37277 +1 cc to Mr.R.Parthiban, Advocate, SR.No.37919 Judgment in W.A.No.169/2007 JP (CO) SMK/31.7.08 https://hcservices.ecourts.gov.in/hcservices/