IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.08.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NO.9853 OF 2010 AND M.P.NOS.1 AND 2 OF 2010 Kallakurichi Co-op Sugar Mill Dhina Coolie Thozhilalar Sangam STA 309/1984 Moongilthuraipattu – 605 702. Sankarapuram Taluk, Villupuram District. Rep. by Secretary Mr.R.Venkatesan ..Petitioner versus 1.The Commissioner of Sugars No.474, Anna Salai, Chennai – 600 035. 2.The Presiding Officer Labour Court, Cuddalore. 3.The Special Officer The Kallakurichi Co-op Sugar Mills Ltd., II 389 Moongilthuraipattu – 605 702. Sankarapuram Taluk, Villupuram District. ..Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of mandamus, directing the 1st respondent to regularise the service of the members of the petitioner union in their respective posts from the date of their initial appointment and absorb them in regular establishment of Kallakurichi Co-op Sugar Mills, Moongilthuraipattu, Villupuram District. For Petitioner : Mr.Balan Haridas for Mr.J.Muthukumaran For Respondents 1 & 2: Mrs.Lita Srinivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ For Respondent 3 : Mr.A.L.Somayaji Senior Counsel for Ms.V.M.Velumani O R D E R The petitioner is a registered Trade Union. The third respondent is a Co-operative Sugar Mill. The NMR workers employed by the third respondent – Mill, are the Members of the petitioner – Union. According to the petitioner – Union, NMR workmen are employed for a long time, ranging from 20 to 25 years. They have been demanding regularization of their services, as they have put in such a long period of service. It is stated that they were all recruited through Employment Exchange as NMRs'. They are not only employed at the lowest level as Mazdoors, but also employed at other places, where vacancies arose and in those vacancies, they are employed for a long time. 2.Under such circumstances, the petitioner – Union raised an Industrial Dispute relating to regularization of NMR workmen and the dispute was referred for adjudication, by the Government of Tamil Nadu, to the second respondent – Labour Court. The second respondent – Labour Court has taken the dispute on file as I.D.No.82 of 2009 and the same is still pending. 3.The members of the petitioner – Union (NMR workmen) are under the apprehension that when the Industrial Dispute is pending, new persons could be appointed and that their claim could be defeated. Apart from not being regularized, if new persons are appointed, they could lose their very employment itself. 4.Hence, the petitioner – Union has come up with the present writ petition seeking for a mandamus, directing the first respondent to regularize the services of its Members in their respective posts from the date of their initial appointment and to absorb them in regular establishment in the third respondent – Mill. 5.Notice of motion was ordered on 09.06.2010 and interim order was also granted on the same day. The third respondent has filed counter affidavit. The third respondent has also filed an application in M.P.No.2 of 2010 to vacate the interim order that was granted on 09.06.2010. 6.Heard Mr.Balan Haridas, learned counsel for the petitioner; Mrs.Lita Srinivasan, learned Government Advocate for the respondents 1 and 2 and Mr.A.L.Somayaji, learned Senior Counsel for the third respondent. 7.The learned counsel for the petitioner – Union submits that the members of the Union are under the apprehension that new persons could be regularly appointed, thereby defeating their claim https://hcservices.ecourts.gov.in/hcservices/ in the pending Industrial Dispute, before the second respondent – Labour Court. According to the learned counsel for the petitioner – Union, the members of the Union are entitled to protection under Section 33 of the Industrial Disputes Act during the pendency of the Industrial Dispute. It is also submitted that the NMR workmen are working for a long period, ranging from 20 to 25 years, and that they have to be regularized, not only as Mazdoors, which require only 8th standard and these workmen are in possession of the said qualification, but also in other posts, which require higher qualifications, even if some of these NMR workmen are lacking in qualification, as their services are utilized for a very long time in those posts. 8.On the other hand, the learned senior counsel for the third respondent has fairly submits that the apprehension of the workmen are only imaginary and the Mill acts fairly, towards the work force. The learned senior counsel has brought to my notice para 14 of the counter affidavit in this regard. Para 14 of the counter affidavit is in fact in the nature of an undertaking and it shows the fairness of the Mill. The learned senior counsel also relies on para 17(F&G) of the counter affidavit. It is further submitted that while the Mill is willing to protect the interest of the NMR workmen, as disclosed in para 14 of the counter, the Mill do not want to suffer, due to want of fresh hands for the crushing, which will begin shortly. 9.I have considered the submissions made on either side and perused the materials available on record. 10.It is true that para 14 of the counter affidavit, almost gives protection to the claim of the members of the petitioner – Union. Para 14 of the counter affidavit is extracted hereunder: "14.With regard to the averments contained in paragraph 13 of the petitioner's affidavit, it is submitted that originally the NMRs were recruited through Employment exchange to work as "padhilies" in the absent places of mazdoors. They were not qualified to absorb other than mazdoors. If they are qualified they will be considered for other technical posts also, and the mills is adopting the procedure that if any vacancy arises which will be filled up first through qualified NMRs and then the mill will go for other persons having technical qualification. In continuation to that measures have been taken to regularize 6 NMRs those who are having requisite educational and technical qualification as per the provisions of Special by-law of our sugar mill. Their names have been recommended to the Commissioner of Sugar for the posts of Junior https://hcservices.ecourts.gov.in/hcservices/ Assistant and Driver vide our office lr.No.6842/2008/LWO, dated 10.04.2010. Eventhough others were sponsored by the Employment Exchange, their names could not be considered for regularisation since they do not possess the prescribed educational or technical qualifications as per the provisions of the Special by-law of the 3rd respondent sugar mills." 11.However, It is stated in para 14 of the counter affidavit that the NMR workmen, who have requisite qualification, will be considered for other technical posts also. The aforesaid passage in para 14 has to be read along with para 17(F&G) of the counter affidavit. Para 17(F&G) of the counter affidavit is extracted hereunder: "17.(F&G).As per the statement of the petitioner it is well known they are working for more than 3 decades intermittently. By this time they might have acquired the prescribed qualification, to regularize them in the regular vacancies. But it is seen that they have not taken any steps to qualify themselves for regularization." 12.In my considered view, even if the NMR workmen lacks in educational qualification, since they were employed in a particular post for a very long time, they have to be regularized in their respective posts. However, if the qualifications prescribed are mandatory, such as possession of driving license, license for doing certain electrical works etc., the long period of service could not give any right for regularization. There is no problem in considering the NMR workmen as against the vacancies in the case of Mazdoors. The difficulty arises in the cases of technical posts and other higher posts, where NMR workmen were employed for a long time, but they do not have requisite qualification. Even in those cases, if they have requisite qualification, according to the third respondent – Mill, they could be considered for the respective posts. 13.In these circumstances, I am of the considered view that the NMR workmen, who have put in long years of service, have to be considered for the technical posts and other higher posts, even if they do not have requisite qualification, if those qualifications are not statutorily prescribed, such as the possession of driving license, license to carry out some electrical work etc. It is also made clear that the third respondent – Mill cannot dispense with the services of the NMR workmen, whose dispute relating to regularization is pending before the second respondent – Labour Court, without seeking prior permission therefor under Section 33(1)(a) of the Industrial Disputes Act. If the termination is based https://hcservices.ecourts.gov.in/hcservices/ on misconduct, then the third respondent is at liberty to dismiss the workmen and thereafter to seek approval under Section 33(2)(b) of the Industrial Disputes Act. 14.At this juncture, the learned senior counsel for the third respondent fairly submits that in cases where the workmen do not possess the statutorily prescribed qualifications, the third respondent would be permitted to go for taking persons from outside, so that the functioning of the mill, would not be hampered. The learned senior counsel submits that in cases where certain posts require statutorily prescribed qualifications, the mill could call for the NMR workmen to submit the required qualification by putting up the same in the notice board, before filling up of those posts. If no NMR workmen is available, then only the mill will go outside for recruitment of fresh hands to those posts. In cases where the qualification is not mandatory and the workmen lacks in qualification, the learned senior counsel submits that the mill could only utilize the services of the NMRs' alone and they could not go outside for fresh hands. 15.In the normal course, I could have directed the third respondent to file an appropriate application seeking permission of the Labour Court to appoint new persons affecting the rights who are seeking regularization in I.D.No.82 of 2009. However, considering the facts and circumstances of the case and more particularly para 14 of the counter affidavit and also the submissions made by the learned senior counsel for the third respondent as recorded in para 14 of this order, this Court is inclined to dispose the writ petition by directing the second respondent – Labour Court to dispose I.D.No.82 of 2009 within six months. 16.Accordingly, recording para 14 of the counter affidavit and also the submissions made by the learned senior counsel for the third respondent as recorded in para 14 of this order, this writ petition is disposed of with a direction to the second respondent - Labour Court, Cuddalore to dispose the I.D.No.82 of 2009 within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar TK To 1. The Commissioner of Sugars, No.474, Anna Salai, Chennai – 600 035. https://hcservices.ecourts.gov.in/hcservices/ 2. The Presiding Officer, Labour Court, Cuddalore. 3. The Special Officer, The Kallakurichi Co-op Sugar Mills Ltd., II 389 Moongilthuraipattu – 605 702. Sankarapuram Taluk, Villupuram District. + 1 c.c. to Mr. J. Muthukumaran, Advocate. S.R.No.58693. + 1 c.c. to Mr. V.M. Velumani, Advocate. S.R.No.58410. W.P.NO.9853 OF 2010 RSN (CO) GSK 11.08.2010. https://hcservices.ecourts.gov.in/hcservices/