IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.8702 of 2001 Vijaya Bank Workers' Union, rep. By its Deputy General Secretary, 60/2, Big Street, Triplicane, Chennai-5. .. Petitioner Vs. 1.The Presiding Officer, The Central Govt. Industrial Tribunal-cum-Labour Court, 26, Haddows Road, Sastry Bhavan, Chennai-6. 2.The Deputy General Manager, The Management of Vijaya Bank, No.123, Rukmani Lakshmipathi Salai, (Marshalls Road), Egmore, Chennai-8. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to I.D.No.26 of 2000 including the award dated 17.1.2001 and to quash the same. For Petitioner : Mrs.Rita Chandrasekar for M/s.Aiyer & Dolia For Respondents : Mr.P.R.Raman for R2 ORDER Heard both sides. The petitioner is a trade union. They have come forward to challenge the Award passed by the first respondent Central Government Industrial Tribunal-cum- Labour Court (for short CGIT) made in I.D.No.26 of 2000, dated 17.1.2001. 2.By the impugned Award, the CGIT rejected the claim put forth by the union regarding the action of the management in not considering part time sweepers for permanent part time sweepers is justified. The writ petition was admitted on 27.4.2001. Pending the writ petition, this court granted an interim stay against the operation of the Award. Subsequently, on 9.9.2003, the interim stay https://hcservices.ecourts.gov.in/hcservices/ was made absolute. 3.Brief facts leading to the case are as follows: The petitioner trade union raised an industrial dispute demanding consideration of M/s.Ajithkumar, S.Surendran, S.Arunachalam, P.Indragandhi, V.Muthulakshmi and P.Jeeva, working as part time sweepers to be considered for the post of permanent part time sweepers. When the management did not concede their demand, they raised an industrial dispute before the Central Government Labour Department. On a failure report being sent to the Government, the Government of India, Ministry of Labour by an order, dated 23.6.2000 referred the issue for adjudication by the CGIT, Chennai. 4.On receipt of the said reference, the Tribunal registered the case as I.D.No.26 of 2000 and issued notices to the parties. On behalf of the petitioner union, a claim statement was filed on 10.8.2000. The management (second respondent) filed a counter statement, dated 28.8.2000. The petitioner union filed a rejoinder on 21.9.2000. Before the Tribunal on behalf of second respondent management one V.Vijayakumar was examined as M.W.1. On the side of the union, three documents were filed and they were marked as Exs.W.1, W.2 and W.3(series). The CGIT held that M.W.1, who was the then Branch Manager of Nagercoil Branch of the second respondent Bank, had stated that it was a normal practice of calling list from the employment exchange and that he gave appointments to six persons on rotational basis. M.W.1 selected them in the interview and they were engaged by him for the branch as part time sweepers. They were also given work on rotational basis for doing sweeping work in the branch for only two hours per day. They are not regular employees of the bank. Four out of six workers were sent for interview. Since all six workers were working on rotational basis in one vacant post, the question of making them permanent will not arise. It was also stated that the post was earlier held by one Esakkimuthu who was a sub staff from the year 1955. He belonged to SC category and the vacancy also belonged to SC category. It was claimed that since workmen were not selected as regular employees, they are not eligible to get any confirmation. It is in that view of the matter, the Tribunal rejected the case of workmen. 5.In the counter statement it was stated that the workmen had worked only for limited number of days on rotational basis. They had not worked beyond 240 days. It was also stated that the post in question is to be filled up on the basis of State-Wide roster. The present vacancy comes under OBC category and the branch had placed an indent with employment exchange to send names for filling up the vacancy. The workmen are not eligible for any relief claimed by them. It was also claimed that when he earlier addressed a letter to the employment exchange on 3.12.1996, it was only temporary post of part time sweepers. Then, it was reserved for SC category. There is no requirement that employees who are working for 90 days should be absorbed. https://hcservices.ecourts.gov.in/hcservices/ 6.Reliance was placed upon the judgment of the Supreme Court in State of Karnataka v. Umadevi(3) reported in 2006 (4) SCC 1. 7.The learned counsel for the petitioner stated that the entry of the petitioners were not through backdoor and the employment exchange was duly notified. Therefore, they cannot be sent out on the basis of principles laid in Union of India and others v. N. Hargopal and others reported in (1987) 3 SCC 308. On the contrary, Hargopal's case (cited supra) came to be explained by the Supreme Court subsequently in Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others reported in (1996) 6 SCC 216. Therefore, there is no illegality in their appointment. He also submitted that even otherwise, the question of sponsorship from employment exchange does not arise out of Employment Exchanges (Compulsory Notification of Vacancies) Act as unskilled office helper is exempted from the provisions of the Act. This position has been confirmed by a division bench judgment of this court in School Committee, Tilak Vidyalaya Higher Secondary School Vs. District Educational Officer, Tirunelveli reported in 1991 TLNJ 1. 8.The learned counsel also submitted that the second respondent is covered by the provisions of the Tamil Nadu Indusriall Establishments (Conferment of Permanent Status to Workman) Act, 1981. This position was also confirmed by this court in Andhra Bank, Salem Vs. Inspector of Labour and another reported in 1994-I LLN 501. The said judgment was also confirmed by a division bench subsequently. It was also stated that part time employees are also covered by the Tamil Nadu Act 46/1981 and that was also made clear by another judgment of this court in K.Duraisamy Vs. Tamil Nadu Electricity Board and others reported in 1992-II LLJ 197. In the light of the same, the petitioner wanted that the Award of the CGIT to be set aside. 9.The learned counsel for the second respondent submitted that regular recruitment can be made only on the basis of recruitment rules and the petitioners will have to go through the test. Such contention came to be considered by the Supreme Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana reported in (2009) 8 SCC 556. In paragraphs 30 and 33, the Supreme Court observed as follows: "30. The question that arises for consideration is: have the provisions of the MRTU and PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi (3)1? In our judgment, it is not. ...... 33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3)1. As a matter of https://hcservices.ecourts.gov.in/hcservices/ fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3)1. Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench." 10.Similarly, in Hindalco Industries Ltd. v. Assn. of Engg. Workers reported in (2008) 13 SCC 441, the Supreme Court held in paragraph 35 as follows: "35. As stated earlier, in spite of change of several contractors, neither the workmen were replaced nor fresh appointments were made. On the other hand, same workmen were continuing even on the date of filing of the complaint. Taking note of all the abovementioned relevant materials, special circumstances and most of the employees are working for more than 10-15 years and finding that there is no valid reason for the Company to deny their permanency, the Industrial Court rightly concluded that the Company has committed unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act, 1971 and issued appropriate directions. With the materials placed, we are also of the opinion that even though the record shows that canteen is being run by the contractor, ultimate control and supervision over the canteen is of the Company. Inasmuch as the facts on hand are identical to the decision in Indian Petrochemicals Corpn. Ltd. case9 which is a three- Judge Bench decision which was not cited before any of the decisions relied on by the Company, in view of the circumstances narrated in the earlier paras, we accept the conclusion arrived at by the Industrial Tribunal." 11.It must be noted that the petitioners are also in service even after the Award was passed, by the interim order passed by this court for the last nine years and they cannot be sent out at this stage. If the post had been reserved for OBC vacancy, but the earlier indent was given to fill up the post under a SC vacancy. In any event, since the petitioners having been in service, the point relating to OBC candidate can be shifted and next post can be given to such category. In the name of such roster exercise, the petitioners who are schedule caste cannot be deprived of their right. Further, the petitioners have been in service for the last nine years. Therefore, this court is inclined to set aside https://hcservices.ecourts.gov.in/hcservices/ the Award. 12.Accordingly, the impugned Award stands set aside. The petitioners will have the benefit of regularisation in terms of Tamil Nadu Act 46/1981. They will be regularised as part time sweepers from the date of the Award with all consequential monetary benefits . The writ petition will stand allowed to the extent indicated above. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vvk To 1.The Presiding Officer, The Central Govt. Industrial Tribunal-cum-Labour Court, 26, Haddows Road, Sastry Bhavan, Chennai-6. 2.The Deputy General Manager, The Management of Vijaya Bank, No.123, Rukmani Lakshmipathi Salai, (Marshalls Road), Egmore, Chennai-8. 1 cc to M/s.Aiyar & Dolia, Advocate, Sr.No.20948 1 cc to Mr.P.R.Raman, Advocate, Sr.No.20332 W.P.NO.8702 of 2001 KGK {CO} TP/16.4.2010. https://hcservices.ecourts.gov.in/hcservices/