IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-2-2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.13834 of 2000 Nedumaran .. Petitioner vs 1.The Executive Engineer Tamilnadu Water Supply and Drainage Board Mechanical Sub Division Williams Road Trichirappalli 2.The Presiding Officer Labour Court Trichy .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus to call for the records of the second respondent dated 31.3.1998 in I.D.No.16/97 and quash the same and direct the first respondent to reinstate the petitioner in employment with the continuity of service with full back wages. For Petitioner : Mr.V.Srinivasan for Mr.S.Muthukrishnan For Respondents : Mrs.Sudarshana Sundar for R1 ORDER Heard Mr.V.Srinivasan learned Counsel appearing for Mr.S.Muthukrishnan for the petitioner and Mrs.Sudarshana Sundar appearing for the first respondent TWARD Board. 2.The petitioner is a workman. He has come forward to challenge an award in I.D.No.16 of 1997 dated 31.3.1998, so far as it had declined to grant any relief to the petitioner. 3.The case of the petitioner is that he was working as a daily wage labourer from 1.5.1975 and was paid on a monthly basis. He was also given salary revision. From 1990 onwards he was working as a Watchman, and without any notice and even without any justification, his services were orally terminated with effect from 2.12.1996. The petitioner had stated that he had worked for more than 21 years, and https://hcservices.ecourts.gov.in/hcservices/ he has been illegally terminated from service. He raised an industrial dispute under Sec.2-A(II) of the Industrial Disputes Act, 1947, before the Assistant Commissioner (Conciliation). As no conciliation was possible, a failure report was given. On the strength of the failure report, he filed a claim statement before the second respondent Labour Court, Tiruchirapalli. The said dispute was taken on file as I.D.No.16/97. 4.On behalf of the first respondent, a counter statement was filed stating that it was true that the petitioner was on service on 22.11.1989, and he was employed on tenure basis of 85 days. The petitioner was working as a rig helper. But, as soon as the temporary employment comes to an end, there will be a break in the service and subsequently he will be reemployed. The petitioner's services were terminated along with other employees on the basis of the policy decision taken by the Board. Thereafter, on a humanitarian consideration, he was employed as a part-time sweeper on a monthly salary of Rs.70/-, and his termination was done once again by the decision of the Board. 5.The Labour Court tried the said issue along with three other Industrial Disputes namely I.D.Nos.95/96, 2/97 and 3/97. So far as the petitioner's case was concerned, he had examined himself as WW4, and on the side of the Board, one P.Rajendran, who was a Junior Engineer, was examined as MW2. The petitioner had filed Exs.W9 and W10 to show the employment details. The Labour Court framed an issue whether the workmen covered by all the four Industrial Disputes were eligible for any relief and if so, the relief may be specified. In respect of the other Industrial Disputes namely ID Nos.95/96, 2/97 and 3/97, the Labour Court granted the relief of reinstatement with back wages. But, insofar as the petitioner's case was concerned, the Labour Court held that since his services were not sponsored through Employment Exchange and he also does not have the educational qualification for the said post, he is not entitled for any relief. Against this award, the present writ petition has been filed. 6.On behalf of the first respondent TWARD Board, no counter affidavit has been filed. 7.A perusal of the impugned award shows that the workman in his evidence as WW4 has broadly deposed that he was working from 1.5.1975 to 30.12.1990 as a Helper and from 1990 to 1996 as a Watchman, and only on 30.11.1996, his services were terminated by an oral communication, and since he was working for more than two years and has put in more than 480 days of service, he is eligible for permanency. He also admitted that for the post of Helper, Employment Exchange sponsorship is required. MW2, who was examined to oppose the case of the petitioner, had stated that the petitioner had not put in 480 days of service in two years, and only on his request, he was appointed as a sanitary worker, and even that employment was terminated on 30.11.1996, and when he sought for permanency, the same was denied, and he was also stopped from work, and in his place, one Rajamani was appointed. The stand taken by https://hcservices.ecourts.gov.in/hcservices/ MW2 is at variance. In the counter statement filed by the first respondent, they have stated that the decision to terminate the services was taken by the Board, whereas in his oral evidence, MW2 has stated that he stopped from work on his own. But, however the Labour Court rejected the case of the petitioner only on the ground that he did not have the educational qualification for the post of helper, and that he was not sponsored by the Employment Exchange. 8.With reference to the contention that if the work is discontinuous, it cannot be said to be continuous work, the same was rejected by the Labour Court by placing reliance upon the judgment of this Court in P.R.Ramachandran V. Tamil Nadu Water Supply and Drainage Board and another (1996 WRIT LAW REPORTER 196) wherein this Court rejected an identical contention and held that giving an employment to a person for 85 days and without technical break, once again reappointing the very same person cannot be used to deny the continuous service of the workman. The Court also held that the provisions of the Permanent Status Act (Tamil Nadu Act 46/81) will be applicable to such employees and granted relief to the workman. Therefore, the Labour Court granted the relief to the other three workers and denied employment only to the petitioner. Even assuming that the petitioner did not have employment right to continue the post of Helper on the question of lack of educational qualification, it is the stand of both sides that the petitioner has been working as a Helper/Watchman from 1991 to 1996, and his services were terminated without following the procedure prescribed under Sec.25 (F) of the Industrial Disputes Act. In such circumstances, as found by the Labour Court, such a termination was illegal. Therefore, the only disqualification which the petitioner suffers in getting any relief, is the non-sponsorship by the Employment Exchange. It must be noted that the petitioner was working only as a Watchman/Sweeper, and the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1989, will not apply to such employment as the Act specifically excludes unqualified Officer outside the purview of the Act. This question came to be considered by a Division Bench of this Court in The School Committee, Tilak Vidyalaya Higher Secondary School V. District Educational Officer, Tirunelveli (1991 TLNJ 1). This Court has held that when there was an admission of the respondent Board that the petitioner's services have been terminated without due notice, then automatically he is entitled for the relief of reinstatement with all back wages. This question also has been considered in P.R.Ramachandran's case as stated supra. In that case, it was found that the respondent Board had not followed the due process under the provisions of the Industrial Disputes Act; but, the Court had granted the relief of reinstatement with all attendant benefits. 9.In the light of the above, this writ petition stands allowed. Insofar as the award in ID No.16/97 dated 31.3.1998, declining the relief to the petitioner, the same is set aside, and the first respondent is directed to reinstate the petitioner in the post which he was holding before his services were terminated. The petitioner is also eligible for 50% of the back wages from the date of his non- employment till he is restored to service. The first respondent is https://hcservices.ecourts.gov.in/hcservices/ also directed to comply with this order within eight weeks from the date of receipt of a copy of this order. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. nsv To: 1.The Executive Engineer Tamilnadu Water Supply and Drainage Board Mechanical Sub Division Williams Road Trichirappalli 2.The Presiding Officer Labour Court Trichy 1 cc to Mrs. Sudharshana Sundar, Advocate, SR. 7630 WP No.13834 of 2000 TRM (CO) kk 19/2 https://hcservices.ecourts.gov.in/hcservices/