IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.4003 of 2001 Central Organisation of Tamil Nadu Electricity Employees' rep. by its General Secretary 13, Mosque Street Chennai-5 .. Petitioner vs. 1. Tamil Nadu Electricity Board rep. by its Secretary 800, Anna Salai, Chennai-2 2. The Member (Generation), Tamil Nadu Electricity Board 800, Anna Salai, Chennai-2 3. The Chief Engineer (Personnel) Tamil Nadu Electricity Board 800, Anna Salai, Chennai-2 .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to B.P.3 dated 29.1.2001 of first respondent and consequential order of the third respondent in Memo No.039628/G58/G581/99-25, dated 3.2.2001 insofar as it relates to denial of subscription to 349 workmen and consequently to direct the respondents to absorb all the workmen of Hydro Power Stations selected under B.P.22, Secretariat Branch, dated 14.5.1999 with effect from 1.5.1999 with all attendant benefits award costs. For petitioner : Mr.R.Yashod Vardhan, Senior Counsel for M.Muthupandian For Respondents : Mr.M.Vaidyananthan O R D E R Heard the learned counsels appearing for the petitioner as well as the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. This writ petition has been filed by the petitioner organisation praying to quash the B.P.(FB) No.3, Administrative Branch, dated 29.1.2001, of the first respondent and the consequential order, dated 3.2.2001, issued by the third respondent and for a direction to absorb the selected workmen as per B.P. 22, Secretariat Branch, dated 14.5.1999. 3. The petitioner is a Trade Union registered under the Trade Union Act, 1926, with registration No.158/CPT. The petitioner Union has the majority of the contract workmen as its members and it is a recognised Union recognised by the Board. 4. It has also been stated that the Tamil Nadu Electricity Board generates electrical energy through (a) Hydro Power Stations, (b) Thermal Power Stations, (c) Gas Turbines (d) Wind Mills. The electricity generated is distributed by the Tamil Nadu Electricity Board for consumption in the state of Tamil Nadu. The Board employs a large number of workmen in generation and distribution of electricity. A substantial number of workmen are employed on contract basis. The contract workmen are mainly employed in the generation of power through the Hydro Power Stations located in the generation circles of Erode, Kundah, Kadamparai and Tirunelveli. The Tamil Nadu Electricity Board is a statutory body created by the Indian Electricity Supply Act, 1948. 5. It has also been stated that since a number of workmen employed by the Tamil Nadu Electricity Board were receiving meager wages under difficult working conditions, a number of Trade Unions had taken up the issue relating to the employment of the contract workmen and their conditions of employment. Since the Unions had demanded the abolition of contract Labour System, the Supreme Court of India had appointed Mr.Justice Khalid to go into the issue relating to the regularisation of the contract labourers. 6. It has also been stated that based on the report of the Khalid Commission, 13,625 contract workmen employed in the Tamil Nadu Electricity Board were regularised in service. Based on the efforts taken by the petitioner Union and the other employees' unions, the issue of abolition of contract labour system was placed before the Advisory Board constituted under the Contract Labour (Regulation and Abolition) Act and a Sub Committee had been constituted to go into the matter. The Sub Committee had recommended the abolition of contract labour system in many processes. However, the Government of Tamil Nadu had issued a Government order in G.O.950, Labour and Employment Department, dated 8.8.1990, under Section 10(1) of the Contract Labour (Regulation and Abolition), Act, abolishing the contract labour system only in 19 processes carrying on generation and distribution activities. In spite of the abolition of the contract labour system by the said Government order, the contract https://hcservices.ecourts.gov.in/hcservices/ workmen covered under the said order were not regularised in the services of the Board. 7. It has also been stated that even after the absorption of the contract workmen, pursuant to the report of the Khalid Commission, thousands of contract workmen were employed by the Tamil Nadu Electricity Board. Since the Trade Unions were agitating for the total abolition of the contract labour system, a policy decision had been taken by the Government of Tamil Nadu, based on which the Tamil Nadu Electricity Board had issued B.P.No.17, dated 28.4.1999 and had sanctioned 9095 helper posts for regularisation of contract labour employed in all the four Thermal Power Stations. Likewise B.P.No.22, dated 14.5.1999, had also been issued sanctioning 1002 posts for regularisation of the contract workmen employed in Hydro Power Stations and Gas Turbines. All the contract workmen covered by the Board proceedings were absorbed, with effect from 1.5.1999, based on certain conditions. For being regularised, according to the Board proceedings, the concerned workmen should not have attained the age of 58 years, no criminal cases should be pending against them and the contract workmen should be medically fit for regular employment. 8. It has also been stated that based on the Board proceedings, screening committees were constituted in accordance with the guidelines issued for absorbing the contract workmen as regular employees of the Tamil Nadu Electricity Board. As per the Board proceedings of the Tamil Nadu Electricity Board in Per.B.P.(FB) No.3, Administrative Branch, dated 29.1.2001, 500 contract labourers working in the 4 Hydro Generation Circles were absorbed as helpers out of the 849 contract labourers, based on their seniority. However, the seniority of the contract labourers were considered based on their employment between 1.5.1999 and 29.1.2001. 9. It has also been stated that the contract labourers, who were employed prior to 1.5.1999, were not considered, based on their seniority, for being appointed as regular employees of the Board. Further, the remaining 349 employees were not considered for the appointment on a regular basis. 10. In the counter affidavit filed on behalf of the respondents, it has been stated that the Tamil Nadu Electricity Board in Per.B.P.F.(FB) No.22, Secretariat Branch, dated 14.5.1999, had decided to absorb the contract labourers working in the 4 Thermal Stations, the 4 Hydro Generations and 2 Gas Turbine Stations and had also decided that the contract labourers referred to as on 5.1.1998 and presently engaged in the above stations shall be absorbed, based on the seniority, to the extent of the regular sanction and supernumerary post of helper. In Memo No.00088/IR.1/1/98-1, dated 5.1.1998, it has been instructed that no additional contract labourers are to be engaged other than those who have already been engaged for a long time. Therefore, in Per.B.P.F.(FB) No.22, https://hcservices.ecourts.gov.in/hcservices/ Secretariat Branch, dated 14.5.1999, the Board had ordered that the contract labourers identified as on 5.1.1998 and presently engaged in the 4 Hydro Generation Circles and the 2 Gas Turbine Power Projects would be absorbed based on the seniority in respect of the stations to the extent of regular sanction and the supernumerary post of helper. While absorbing the contract labourers, certain guidelines had been issued to identify them as per B.P.22, Secretariat Branch, dated 14.5.1999 and Memos, dated 19.5.1999 and 7.5.1999. 11. It has also been stated that the concerned Superintending Engineers were delegated with the powers to constitute a Selection Committee consisting of the Superintending Engineer of the respective stations, Executive Engineer, A.A.O. and Medical Officers. Since no records, such as attendance, paid acquittance etc., are available in respect of the contract labourers engaged in the 4 Hydro Generation Stations to establish that they are engaged for more than 480 days within 24 calendar months, they could not be considered for the selection. As the Contract System was abolished from 1.5.1999, the contract labourers had been paid wages by the Board, with effect from 1.5.1999. With a view to ensure the smooth functioning of the Power Houses without any interruption. Orders had been issued in Per.B.P. (FB) No.3/Adm.Branch/dated 29.1.2001, for absorption of 500 contract labourers amongst the 849 contract labourers identified in the 4 Hydro Generation Circles, who were engaged for longer periods and paid wages by the Board, were absorbed as Helpers, subject to their satisfying all the conditions prescribed in B.P.22, Secretariat Branch, dated 14.5.1999 and the subsequent instructions/guidelines that had been issued. The remaining 349 contract labourers were not considered for selection, since the Board's actual requirement is only 500 in respect of all the Hydro Generation Stations. 12. It has also been stated that no person can claim any right for being appointed permanently in the services of the Board except against a sanctioned post required to be filled up or has acquired a statutory right vested in them for claiming such a privilege. 13. At the stage of the hearing of the writ petition, the learned counsel appearing for the petitioner had placed before this Court the proceedings of the Tamil Nadu Electricity Board in Per.B.P.(FB) No.14, Administrative Branch, dated 5.8.2005, which is as follows: In the B.P. first read above orders were issued for the absorption of the Contract Labourers, who were identified in the 4 Hydro Generation Stations as on 5.1.98, as Helpers, subject to satisfying certain conditions prescribed by the Board. However, the contract labourers engaged in the 4 Hydro Generation Circles did not produce evidence/records satisfying the conditions prescribed by the Board for absorption. Hence, they could not be absorbed as Helpers then. https://hcservices.ecourts.gov.in/hcservices/ 2. However, with a view to ensure the smooth functioning of the Power House without interruption, the B.P.3rd read above, orders were issued for absorption of 500 Contract Labourers in the 4 Hydro Generation Circles, who have been engaged for longer period as Contract Labourers, from out of the 849 Contract Labourers who were identified as on 5.1.98 in the 4 Hydro Generation Circles on need basis. The orders issued in the (Per) B.P.(FB) No.3 (Adm.Bench) dated 29.1.2001 were upheld by the Division Bench of High Court, Madras in the W.A.No.2847/2002 filed by the Board. 3. The remaining unselected 349 Contract Labourers in the 4 Hydro Generation Circles are continued to be engaged directly by the Board as Contract Labourers on daily wages. Out of 349 contract labourers only 295 contract labourers are on roll at present. 4. The Central Organisation of Tamil Nadu, Electricity Employees has filed W.P.No.4003/2001 claiming for absorption of remaining 349 unselected contract labourers in 4 Hydro Generation Circles. In the said writ petition, the Hon'ble High Court granted interim injunction and passed orders to maintain status quo. The W.P.No.4003 of 2001 is still pending before the High Court. Apart from the W.P.No.4003 of 2001 filed by Central Organisation of Tamil Nadu Electricity Employees the W.P.No.22563 of 2000 filed by Contract Labourers Welfare Association/Kundah and W.P.No.37763 of 2000 filed by Tmt.Rajammal and 18 others, contract labourers, Kadamparai Generation Circle, on the same issue are also pending in the High Court. 5. The unions and also the individual contract labourers in the 4 Hydro Generation Circle are frequently representing to the Board as well as to the Chief Minister's Special Cell requesting for permanent absorption. 6. The matter has been carefully examined. These remaining 295 contract labourers have been directly engaged by the Board on payment of daily wages and their experience can be effectively utilised for smooth functioning of the Hydro Generation Power Stations. The Board has therefore decided to absorb these 295 contract labourers with https://hcservices.ecourts.gov.in/hcservices/ effect from 5.8.2005 as Helpers subject to satisfying all the conditions prescribed for absorption and subject to the outcome of the writ petitions mentioned in para 4 above. If any of these contract labourers are not on duty on 5.8.2005 their absorption shall take effect from the date of joining on return from absence. 7. Accordingly, it is hereby ordered that 295 contract labourers in the 4 Hydro Generation Circles, as detailed below, who have been engaged as Contract Labourers, be absorbed as Helpers with effect from 5.8.2005 against the existing vacancies in the respective circles subject to out come of the W.P.No.4003 of 2001 and 2 other writ petitions. SL.No. Name of Circle's No.of Labourers for Circle 1 Erode 61 2 Kundah 127 3 Tirunelveli 59 4 Kadamparai 48 Total 295 These contract labourers shall satisfy all the conditions prescribed by the Board in B.P.(FB) No.22, (Sectt.Branch), dated 14.5.1999 and the instructions/guidelines issued subsequently for absorption into Board's service. The Superintending Engineers are requested to furnish the name and other details of contract labourers absorbed as Helpers as per these proceedings. 8. The receipt of the B.P. should be acknowledged. 14. The learned counsel appearing for the petitioner had further prayed that this Court may uphold the absorption of the 295 members of the petitioner Association as detailed in the proceedings of the Tamil Nadu Electricity Board, dated 5.8.2005. However, if the individual members of the petitioner organisation are still aggrieved with regard to the fixation of the seniority in their appointments and with regard to their dates of absorption, they may be permitted to approach the appropriate forum seeking the necessary reliefs, in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 15. The learned counsel appearing for the respondents has no objection for this Court passing such an order granting the reliefs as prayed for by the learned counsel appearing for the petitioner. 16. Based on the submissions made by the learned counsels appearing for the petitioner as well as the respondents, the absorption of the 295 members of the petitioner Organisation, in accordance with Per.B.P.(FB) No.14, Administrative Branch, dated 5.8.2005, are upheld. Further, it would be open to the individual members of the petitioner Organisation to approach the appropriate forum in the manner known to law, to seek the necessary reliefs, if so advised, with regard to the seniority in their appointments and the dates of their absorption in service on a regular basis. Accordingly, the writ petition stands disposed of. Consequently, connected W.M.P.Nos.5677 and 5678 of 2001 and W.P.M.P.No.51922 of 2002 are closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan To: 1. The Secretary Tamil Nadu Electricity Board 800, Anna Salai, Chennai-2 2. The Member (Generation), Tamil Nadu Electricity Board 800, Anna Salai, Chennai-2 3. The Chief Engineer (Personnel) Tamil Nadu Electricity Board 800, Anna Salai, Chennai-2 + 1 CC To Mr.M.Vaidyanathan, Advocate SR NO.47723 + 1 CC To Mr.M.Muthupandian, Advocate SR NO.47468 W.P.No.4003 of 2001 JSV(CO) SRA(14/10/2008) https://hcservices.ecourts.gov.in/hcservices/