IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:08/9/2004
CORAM:
THE HON'BLE MR.JUSTICE P.K.MISRA
AND
THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.NO. 16128 of 2003
and
W.P.NO. 16129 of 2003
15273 OF 2000, 14917, 14918, 1516, 15167, 15205, 15206, 14661, 14666, 14912
TO 14914, 14911, 14915, 14916, 15187, 15188, 15189, 15190, 19623,
19647 TO 19649, 25006, 25007, 33706, 33702, 33703,
33705, 33707, 33708, 33709, 33715, 36691, 16514,
16508, 16509, 16513, 16515, 16524, 16526 TO 16529,
16534 TO 16536, 22452, 22451, 23143, 23155, 24370,
25004, 22450, 36589, 26477 TO 26484, 22581, 31994,
24682, 29843, 24284, 25060, 24758, 24759, 36363 TO 36365,
18507 OF 2003; 440, 21063, 18507, 18993 TO 18998,
19015 TO 19022, 19023 TO 19025, 19026 TO 19028,
19029, 19030, 19045, 19046, 19048 AND
21057 TO 21059 OF 2004
W.P.No.16128 OF 2003:
Tamil Nadu Highways Roadways Employees' Association,
(Regn.No.97/2001), rep. by its General Secretary ... Petitioner
-Vs-
1. Government of Tamilnadu,
rep. by its Secretary,
Highways Department,
Secretariat, Chennai-9.
2. The Chief Engineer (General),
Highways, Chepauk, Chennai.
3. The Divisional Engineer (High Ways),
Pudukkottai.
4. The Registrar, Tamil Nadu Administrative Tribunal,
Chennai-101. .. Respondents
For Petitioners: Ms. R.Vaigai
Mrs.Nalini Chidambaram
Mr.S.Silambanan
Mr.S.M.Subramaniam
Ms.M.Bharathi Mohan
Mr.S.Saravanavasan
Mr.M.Gnanasekar
Mr.M.Ravi
Mr.Arunachalam
Mr.P.Mani
Mr.R.Rengaramanujam
Mr.G.R.Swaminathan
Mr.S.Manikumar
Mr.M.Muthappan
Mr.V.Ravi
Mr.G.Elanchezhian
Mr.V.Illanchezhian
For Respondents: Mr.N.R.Chandran,
Advocate General
assisted by
Mr.A.L.Somayaji, Senior Counsel
Mr.D.Krishnakumar, Spl.G.P.
Prayer: All these Writ Petitions were preferred under Article 226 of
the Constitution of India, praying for the issuance of Writ of Certiorarified
Mandamus, for the reliefs as stated therein respectively.
:COMMON ORDER
F.M.IBRAHIM KALIFULLA, J.
In all these writ petitions, the challenge is to the
common order of the State Administrative Tribunal dated 16.04.2003 in
O.A.Nos.5028 of 2002 etc., wherein the State Administrative Tribunal, while
upholding the abolition of Gang Mazdoors made under G.O.Ms.No.16 0 (Highways)
dated 05.09.2002, directed the State Government to pay a sum equivalent to six
months salary to each of the Gang Mazdoors, whether he had filed an Original
Application before the Tribunal or not.
2. The petitioners were represented by different counsel,
however main submissions were made by Ms.R.Vaigai, Ms.Nalini Chidambaram and
Mr.S.M.Subramaniam, whose arguments were adopted by the other counsel
appearing for various other petitioners. Submissions were made on behalf of
the respondent State by the learned Advocate General, as well as
Mr.A.L.Somayaji, the learned Senior counsel.
3. In order to resolve the controversy involved in these
writ petitions, the facts which lead to the ultimate abolition of the posts of
Gang Mazdoor is required to be stated:
(a) In the services of the State Government apart from the regular
employees presently in the services of the State, either as permanent, or on
temporary basis, persons were employed on temporary basis in the Work Charged
Establishments for execution of specific works and projects. It is said that
such employees used to be disbanded on the completion of the work for which
they were recruited. It is also stated that even if some projects are
completed, the personnel used to be engaged in some other projects and thereby
the continuity of even such temporary engagement was continued.
(b) In the Work Charged Establishment also the employees were
categorized into provincial and non-provincial. While the provincial
employees were fitted in the time scale of pay, the non-provincial employees
were paid some fixed pay. The above said practice was prevailing prior to the
year 1977.
(c) In respect of such provincialised and non-provincialised Work
Charged employees, there was a demand for extending various other benefits
payable to government servants such as Leave, Retirement benefits etc., The
State Government after considering the grievances expressed by certain
associations representing such Work Charged employees came forward with
G.O.Ms.No.51 dated 14.01.1997, in and by which all Work Charged employees who
were in the pay scales of particular scale and above were brought to regular
establishment and were allowed all the benefits that were payable to regular
government servants.
(d) Similarly, non-provincialised Work Charged personnel on completion
of five years of continuous service were also brought to the regular
establishment. Simultaneously, the Government also revoked the power of
Superintending Engineers in the P.W.D Highways and Rural Works Department to
recruit employees for Work Charged establishments. In other words, the
Government directed that the recruitment of Work Charged establishment should
be stopped forthwith in all the Departments of the Government.
(e) Further the Heads of Departments were requested to submit
necessary proposals to the Government for creation of adequate number of posts
required for absorbing the existing non-provincialised Work Charged
establishment presently who had by then completed five years of service as on
01.01.1977. Similar such directions were given to submit proposals for
creation of adequate number of posts for absorbing the non-provincialised
workers in the regular establishment as and when they complete five years of
services on 1st January of the respective years.
(f) In G.O.Ms.No.406 (Transport) dated 23.02.1987, the State
Government passed orders to the effect that 10,634 Gang Mazdoor posts should
be created and such posts should be made permanent. However, in G.
O.Ms.No.815 dated 05.06.1992, the State Government imposed a ban on filling up
of the posts of Gang Mazdoors.
(g) In the year 1996, at the instance of the Honourable Chief Minister
an assessment was made as to the requirement of the total number of Gang
Mazdoors depending upon the total length of roads to be maintained in the
State Governments of Tamilnadu. In pursuance of the said exercise,
G.O.Ms.No.184 dated 29.05.1997 came to be issued, in which the total number of
posts of Gang Mazdoors required for different Departments such as Highways,
National Highways, National Highway No.45 and certain other Departments was
assessed at a level of 14,872. In the very same Government Order, the total
number of such posts that had been filled up as on that date was arrived at
5,559. The remaining posts to be filled was calculated at 9,813.
(h) In the said Government Order, while arriving at the total
requirements of 14,872, the State Government took note of the creation of 1
0,634 posts in G.O.Ms.No.406 dated 23.02.1987 and also the number of posts
filled up out of the 10,634 which remained at 5,575 and it was therefore, held
that while 9,813 posts were required, since 5,575 posts were already
available, it was decided to create additional posts to the extent of 4,238.
(i) In order to fill up the above said posts the ban imposed in
G.O.Ms.No.815 dated 05.06.1992 was also removed. It is further stated in the
said Government Order that such of those Gang Mazdoors who are to be
recruited, the first year of their employment would be treated as a training
period on a consolidated pay of Rs.1,500/- and from the second year onwards,
they would be fitted in the concerned scale of pay.
(j) The additional financial liability from the year 1997-98 was
determined at a sum of Rs.15 crores and the necessary allotment of funds was
also made. Subsequent to the issuance of G.O.Ms.No.184 dated 29.05.1997,
under G.O.Ms.371 dated 19.08.1997 what ever further requirements and the
procedures to be followed as well as relaxations to be given in the relevant
rules were also made.
(k) In G.O.Ms.No.371 dated 19.08.1997, the relevant factors were that
the age limit was uniformly fixed at 35 for all categories, while directing
the application of Rule of Reservation. Yet another significant factor was
that the concerned Divisional Engineers were allowed to make the recruitment
without the aid of the Employment Exchange. They were allowed to select the
persons on 1 : 3 basis and select the ultimate appointee by lot system.
Necessary relaxations in the age as required under Rule 5(1) of the Tamilnadu
Basic Servant Rules and also Rule 48 of the Tamilnadu State and Subordinate
Service Rules under which the general requirements of calling for application
through Employment Exchange was exempted.
(l) Pursuant to the above said G.O.Ms.No.184 dated 29.05.1997 and
G.O.Ms.No.371 dated 19.08.1997, the employees recruited for the posts of Gang
Mazdoors were issued with the orders of appointment which stipulated that they
would be given training for a period of one year on a consolidated pay of
Rs.1,500/-, that if they fail to maintain the roads properly their services
would be terminated during the training period itself and that such temporary
engagement cannot be the basis for claiming regular employment. However, it
is not in dispute that all such Gang Mazdoors who were recruited and appointed
on the above basis came to be regularized in their respective employment on
completion of one year of service. Further on such regularization they were
also fitted in the scale of pay with the basic pay of Rs.2,550/- Necessary
orders confirming the completion of probation period was also issued to the
respective employees. (m) Thus such of those Gang Mazdoors who were
recruited pursuant to the above G.O.Ms.No.184 dated 29.05.1997 and
G.O.Ms.No.371 dated 19.08.1997 were regularized in the services of the
respective Departments had become the regular employees of the State. They
were working as such till the issuance of G.O.Ms.No.160 dated 05.09.2002 when
the State Government took a decision to abolish such of those Gang Mazdoors
who were recruited on lot basis after 1997, the number of which was
ascertained as 9,728 and the posts were abolished. It was also mentioned
therein that such of those posts in which Gang Mazdoors were working even
prior to the year 1997 can be reduced as and when such employees retire from
the services. Pursuant to the issuance of the G.O.Ms.No.160 dated 05.09.2002
all the 9758 Gang Mazdoors were issued with stereo typed orders of termination
dated 07.09.2002 and the termination was to take effect from the afternoon of
07.09.2002.
(n) Challenging the said orders of termination several Original
Applications were filed before the State Administrative Tribunal in
O.A.Nos.5028 of 2002 etc., in which the common impugned order came to be
passed on 16.04.2003. Challenging the above said orders, the present writ
petitions have been filed.
(o) The connected Writ Petitions have been filed by the Government of
Tamilnadu against the direction of the Tribunal directing the State Government
to pay sum equivalent to six months’ salary to each of the Gang Mazdoors.
4. Ms.R.Vaigai, in her submissions, contended that the
action of the respondent/State in abolishing the post of Gang Mazdoor was
wholly arbitrary and unreasonable, violating Article 14 of the Constitution of
India; that the consequent termination order pursuant to the abolition was
resorted to in violation of the provisions of the Industrial Disputes Act and
that the order of the Tribunal in not adverting to such serious violation
while passing the impugned order was therefore liable to be set aside. In
answer to Writ Petitions of the State, it was further contended that by virtue
of Rule 38 and 43 of the Pension Rules, inasmuch as the various Gang Mazdoors
were entitled for pension as well as gratuity, even the amended prayer of the
respondent in their writ petition cannot also be considered.
5. Based on the provisions of the Industrial Disputes
Act, the learned counsel contended that the activities of the Department,
namely the “Highways Road Maintenance” would fall within Section 2(m) of the
Factories Act and consequently, by virtue of the total strength of employees
employed in each Division of that Department, the application of Chapter V (B)
of the Industrial Disputes Act was imperative and therefore, the failure to
follow the statutory requirements would render the termination orders invalid
in law. The learned counsel sought to make a distinction as between sovereign
function of the State and the Industrial activity also managed by the State,
to contend that there was no scope for the State Government to exclude the
application of the provisions of the Industrial Disputes Act to the case on
hand on the ground of sovereign function of the state. In support of her
submissions, she placed reliance upon the judgments reported in “(1999)1 SCC
596 (LAL MOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD., AND
OTHERS); (2000)3 SCC 224 (MUNICIPAL CORPORATION OF DELHI versus FEMALE WORKERS
(MUSTER ROLL) AND ANOTHER); 20 04(4) 2 LLJ 213, (1996)2 SCC 293 (CHIEF
CONSERVATOR OF FORESTS AND ANOTHER versus JAGANNATH MARUTHI KONDHARE AND
OTHERS); (1983)2 SCC 217 (AJIT SINGH AND OTHERS v. STATE OF PUNJAB AND
ANOTHER) , (2002)10 SCC 432(U.T. CHANDIGARH & OTHERS versus AVTAR SINGH AND
OTHERS) and (20 04)2 SCC 510 (UNION OF INDIA versus NAVEEN JINDAL AND
ANOTHER)”.
6. Mr.S.M.Subramaniam, learned counsel appearing for the
petitioners in W.P.No.33706 of 2003 contended that when relaxation of the
Special Rules were made by invoking Rule 48 of the general rules while making
the appointment of Gang Mazdoors such an action was consciously made by the
State Government at the relevant point of time by taking into account all the
relevant circumstances, it cannot be now permitted to turn around and contend
that there was irregularity in such appointments. The learned counsel also
contended that at the time when the termination orders were issued it was not
the case of the State that such termination orders were resorted to on the
ground that their entry into services was irregular. He also pointed out that
such a ground was never stated in the order of termination. The learned
counsel would state that the present stand of the respondent/ state in their
additional grounds was purely an after-thought and the same should not be
countenanced.
7. Ms.Nalini Chidambaram the learned counsel appearing
for the petitioner in W.P.No.14917 and 14918 of 2003 etc., contended that the
Government Order abolishing the post of Gang Mazdoors was wholly arbitrary and
that it suffered form the vice of unreasonableness. According to the learned
Senior Counsel the abolition was also tainted with mala fides.
8. As against the above submissions of the learned
counsel for the petitioners, the learned Advocate General formulated his
submissions on five grounds, namely that the attack of the impugned orders of
termination was never made on the basis of violation of the provisions of the
Industrial Disputes Act, though such a contention was in fact raised in the
original application. It was then contended that such a contention could not
have been dealt with by the State Administrative Tribunal as it lacked
jurisdiction. According to the learned Advocate General in view of the said
legal position, no fault can be found with the order of the Tribunal on that
score.
9. Secondly, it was contended that even assuming such a
ground could be raised in the Original Applications or in these writ
petitions, inasmuch as Highways Department of the State Government is the
sovereign function of the State, it would be outside the purview of the
provisions of the Industrial Disputes Act. Thirdly, it was contended that
even if the activities of the Highways are construed as an industry, the order
of termination due to abolition of posts will not attract the provisions of
the Industrial Disputes Act. Fourthly, it was contended that the abolition of
posts was justified for the reasons which weighed with the Government. It was
lastly contended that when the Tribunal held that the policy of the State in
abolishing the post of Gang Mazdoor was justified, the award of compensation
for payment of six months salary was highly excessive.
10. On the question of jurisdiction of the Tribunal to deal
with the issue touching upon the violation of the provisions of the Industrial
Disputes Act, the learned Advocate General relied upon the judgments reported
in “(1995)5 SCC 75(THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION & ANOTHER,
ETC. versus KRISHNA KANT, ETC.) and (2001)9 SCC 526 (COUNCIL OF SCIENTIFIC
AND INDUSTRIAL RESEARCH AND ANOTHER versus PADMA RAVINDRANATH (SMT.) AND
OTHERS) and also 2002(3) ATC 629″, as well as the judgments reported in 1991
WLR 699 (INDIAN BANK, REP. BY ITS ASSISTANT MANAGER versus R,.S.
THIRUVENGADAM) and (2004)4 SCC 268 (U.P.STATE BRIDGE CORPORATION LTD. AND
OTHERS versus U.P.RAJYA SETU NIGAM S.KARAMCHARI SANGH) . On the question
relating to the sovereign function of the State the learned Advocate General
contended that the Gang Mazdoors failed to discharge their onus of
establishing that the respondent was carrying on an industry and that it did
not form part of sovereign functions of the State. He also relied upon the
judgments reported in ” 1988 LIC 690(EXECUTIVE ENGINEER, NATIONAL HIGHWAY
DIVISION, BALASORE AND OTHERS versus REGIONAL PROVIDENT FUND COMMISSIONER,
BHUBANESWAR), 1973 LIC 553 (SUPERINTENDING ENGINEER, NATIONAL HIGHWAY PROJECT,
BHUBANESWAR versus BAIDHAR LENKA AND ANOTHER), (2001)9 SCC 713 (STATE OF
GUJARAT AND OTHERS versus PRATAMSINGH NARSINGH PARMAR)”.
11. The learned Advocate General sought to make a distinction
as between the functional abolition of the very activity when compared to mere
abolition of work. In support of his submissions, reliance was placed upon
the judgment reported in AIR 1982 SC 1107 (K. RAJENDRAN AND OTHERS, ETC.
versus STATE OF TAMIL NADU). Further by referring to the various Government
Orders right from G.O.Ms.No.51 dated 1.02.1977 up to G.O.Ms.No.371 dated
19.08.1997, the learned Advocate General contended that G.O.Ms.No.371 dated
19.08.1997 in relaxing the various requirements of the Subordinate Service
Rules, as well as, the special rules being illegal, in every respect, by
interfering with the order of termination of the Gang Mazdoors, such an
illegality should not be restored. He placed reliance upon the decision
reported in 2002(4) CTC 385. It was then contended that Gang Mazdoors by
virtue of their orders of appointment as well as their subsequent
regularisation, were only holding temporary posts and therefore, even applying
Section 3 8 of the Pension Rules, it can not be held that the abolition would
get vitiated, inasmuch as Section 38 only contemplate three months notice and
nothing more. Reliance was placed upon the judgment reported in AIR 1996 SC
2228 (STATE OF MAHARASHTRA versus PURUSHOTTAM AND OTHERS).
12. Mr.A.L.Somayaji, the learned Senior counsel who also
appeared for the State placed heavy reliance upon the Full Bench decision of
the Punjab and Haryana High Court, reported in “1983(1) LLJ 309 (STATE OF
PUNJAB versus KULDIP SINGH AND ANOTHER)” and contended that in respect of
essential services of the State, which does not involve any Trade or Business
or even an analogous activity, the provisions of the Industrial Disputes Act
cannot be invoked. According to the learned Senior counsel, even if it were
to be held that the provisions of the Industrial Disputes Act gets attracted,
the remedy should have been availed before the appropriate adjudicatory forum
created under the provisions of the Industrial Disputes Act and not under the
State Administrative Tribunal. The learned senior counsel also contended that
when the initial induction of the Gang Mazdoors was contrary to the rules,
accepting their claim would result in an illegality being given a seal of
approval, or restoration of an illegal action which should not be made. The
learned counsel placed reliance upon the judgment reported in “(1997)2 SCC 1
(ASWANI KUMAR AND OTHERS versus STATE OF BIHAR AND OTHERS)”.
13. The learned Senior Counsel also attempted to point out
that G. O.Ms.NO.371 dated 19.05.1997 was contrary to the rules framed under
Article 309 of the Constitution which was not an acceptable system of
selection and furthermore, the exemption of Employment Exchange Rule was not
made prior to the paper publication calling for the applications. It was also
contended that based on Rule 48 of the Tamilnadu State and Subordinate Rules
an erroneous relaxation of Rules 4 & 5 could not have been made. The learned
Senior Counsel therefore contended that the original appointment itself was a
nullity and therefore consequently, such an illegal appointment can never be
restored. Reliance was placed upon the decisions reported in 1973 (2) LLJ 180
(T.C. SREEDHARAN PILLAI versus STATE OF KERALA AND OTHERS), AIR 1992 SC 789 (
DELHI DEVELOPMENT HORTICULTURE EMPLOYEES’ UNION versus DELHI ADMINISTRATION,
DELHI AND OTHERS); AIR 1966 SC 828 (GADDE VENKATESWARA RAO versus GOVERNMENT
OF ANDHRA PRADESH AND OTHERS); 2004 WLR 434 2004 Wr.L.R.4 34 (UNION OF INDIA,
UNION TERRITORY OF PONDICHERRY, REP. BY THE CHIEF SECRETARY TO GOVT. AND TWO
OTHERS versus ILANGO, ETC.,) and 2004(3) CTC 549(STATE OF UTTARANCHAL, THROUGH
COLLECTOR, DEHRADUN AND ANOTHER versus AJIT SINGH BHOLA AND ANOTHER) and
2002(4) CTC 385 (L. JUSTINE AND ANOTHER versus THE REGISTRAR OF
COOP.SOCIETIES, CHENNAI AND TWO OTHERS).
14. Having heard the learned counsel for the respective
parties and on an analysis of the various materials placed before us, we are
of the considered view that the following relevant questions are required to
be determined, viz.,
“1. Whether the Administrative Tribunal could have gone into the
question as to the violation of the provisions of the Industrial Disputes Act
while considering the order of termination of the “Gang Mazdoors”?
2. Whether in these Writ Petitions, this Court exercising its power
under Article 226 of the Constitution, can examine the noncompliance of the
provisions of the Industrial Disputes Act?
3. If there is scope for examining the question posed for
consideration in points 1 and 2, whether at all the Industrial Disputes Act
would be applicable to the establishment, viz., the Department of Highways of
the State of Tamil Nadu and consequently to the “Gang Mazdoors”?
4. If it were to be held that Industrial Disputes Act is applicable,
was there any violation of the provisions of the Industrial Disputes Act, and
if so, what is the relief to be granted?”
5. Whether the impugned order of the State Administrative Tribunal
can be legally sustained?
Apart from the above questionss, one another additional
question now raised on behalf of the State, is,
“Whether the very employment of all the “Gang Mazdoors” concerned in
these Writ Petitions, was in accordance with law or such employment should be
held to be void and consequently no relief can be granted to any of them?”
15. This additional question came to be raised at the
instance of the State. According to Thiru A.L.Somayaji, learned senior
counsel, the issuance of G.O.Ms.No.184 dated 29-5-1997, and G.O.Ms.No.371
dated 19-8-1998 granting relaxation of age limit as well as the requirement of
sponsorship through Employment Exchange was illegal and further the direction
in G.O.Ms.No.371 to make the ultimate selection by lots can never be approved.
The learned senior counsel, therefore, contended that when the whole selection
and appointment of “Gang Mazdoors” was in contravention of the Tamil Nadu
State and Subordinate Service Rules, such appointments were avoid ab initio
and therefore, restoration of such appointments would only result in judicial
forum approving of an illegal action.
16. On taking up the various questions involved, in the first
place, the learned Advocate General, contended that the laying of roads as
well as maintenance of it is a sovereign function of the state and therefore,
the application of the provisions of the Industrial Disputes Act was ruled out
and that in any event, the State Administrative Tribunal in its limited sphere
of its jurisdiction was not competent to examine the said question. In this
context, a reference was made to Section 28 of the Administrative Tribu nals
Act, 1985, which is to the following effect:
“Sec.28. Exclusion of jurisdiction of courts except the Supreme Court
under Article 136 of the Constitution:-
On and from the date from which any jurisdiction, powers and authority becomes
exercisable under this Act by a Tribunal in relation to recruitment and
matters concerning recruitment to any Service or post or service matters
concerning members of any Service of persons appointed to any Service or post,
(no court except,-
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority
constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other
corresponding law for the time being in force,
shall have), or be entitled to exercise any jurisdiction, powers or authority
in relation to such recruitment or matters concerning such recruitment or such
service matters.”
17. This question was considered by various Administrative
Tribunals functioning in different states and conflicting views came to be
expressed by different Benches. Ultimately that question came to be referred
before a Five Member Bench whose order is reported in “(1990) 14
Administrative Tribunal Cases 914 (A.PADMAVALLLEY AND OTHERS versus CPWD)”.
The larger Bench of the Central Administrative Tribunal framed as many as four
issues for determination and for our present purpose, it would be suffice to
refer to first two issues, viz.,
“1. Whether the CAT has concurrent jurisdiction with the Industrial
Tribunal/Labour Court on the ground that it became a substitute not only for
all Courts including the High Court but for all Tribunals in respect of
service matters and whether it is left to the workman to choose the forum for
redressal of the grievance in respect of rights conferred under the Industrial
Disputes Act.
“2. Whether in the event of the first issue being answered in the
negative, the Administrative Tribunal in exercise of powers analogous to
Articles 226 and 227, Constitution of India, is competent to entertain or
consider applications in respect of disputes/claims arising under the
Industrial Disputes Act.”
18. Ultimately, the above questions were answered in para 43
of its Judgment, as under:
“43. To sum up, our conclusions are as follows:
(1) The Administrative Tribunals constituted under the Administrative
Tribunals Act are not substitutes for the authorities constituted under the
Industrial Disputes Act and hence the Administrative Tribunal does not
exercise concurrent jurisdiction with those authorities in regard to matters
covered by that Act. Hence all matters over which the Labour Court or the
Industrial Tribunal or other authorities had jurisdiction under the Industrial
Disputes Act do not automatically become vested in the Administrative Tribunal
for adjudication. The decision in the case of ‘Sisodia which lays down a
contrary interpretation is, in our opinion, not correct.
(2) An applicant seeking a relief under the provisions of the
Industrial Disputes Act must ordinarily exhaust the remedies available under
that Act.
(3) The powers of the Administrative Tribunal are the same as that of
the High Court under Article 226 of the Constitution and the exercise of that
discretionary power would depend upon the facts and circumstances of each case
as well as on the principles laid down in the case of Rohtas Industries.
(4) The interpretation given to the term ‘arrangements in force’ by
the Jabalpur Bench in Rammoo case is not correct.”
19. Before reaching the above said conclusions, the larger
Bench of the Tribunal, held as under in para 41:-
“41. In the Rohtas Industries case, the decision in Premier
Automobiles case was cited with approval and it was held that if the I.D.Act
creates rights and remedies it has to be considered as one homogeneous whole
and it has to be regarded as uno flato. But it was made clear that the High
Court could interfere in a case where the circumstances require interference.
This is clear from the following observation in regard to exercise of
jurisdiction under Article 226: (SCC p.88, para 9)
“This court has spelt out wise and clear restraints on the use of this
extraordinary remedy and High Courts will not go beyond those wholesome
inhibitions except where the monstrosity of the situation or other exceptional
circumstances cry for timely judicial interdict or mandate. The mentor of law
is justice and a potent drug should be judiciously administered.”
20. The Full Bench decision of the Tribunal referred to above
came up for consideration before the Hon’ble Supreme Court in the judgment
reported in “(2001)9 SCC 526 (COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH
AND ANOTHER versus PADMA RAVINDRANATH (SMT.) AND OTHERS)”, wherein, the
decision of the Full Bench reported in “1990(14) ATC 914 (A.PADMAVALLLEY AND
OTHERS versus CPWD, HYDERABAD)” in so far as it related to the principles set
out in its conclusions on item Nos.1 and 2 alone were referred to in the said
judgment and the Hon’ble Supreme Court gave its seal of approval. The Hon’ble
Supreme Court dealt with an appeal against an order of another Full Bench of
the Central Administrative Tribunal in a proceeding, where, a question arose
as to “whether Council of Scientific and Industrial Research (FCS 12) or its
constituent unit would come within the definition of ‘industry’ and whether
the persons employed by them in any capacity are workmen within the meaning of
Industrial Disputes Act, 1947?”. The Full Bench of the Tribunal, answered the
question by stating that CSIR is an industry falling within the definition of
an ‘industry’ under Section 2(j) of the Industrial Disputes Act and as regards
the constituent unit of the council was concerned, the Tribunal held that the
matter had to be decided on the facts arising in the case and in the absence
of appropriate data and material, it would not be proper to decide such a
question.
While dealing the above said issues, the Hon’ble Supreme Court has
held in para 5 as under:
“5. In the circumstances, so far as the law on the question whether
CSIR is an industry is concerned, it is now settled by the decision of five
judges of the Tribunal referred to above and thus decision of the Full Bench
becomes ineffective. So far as the merit of matter is concerned the decision
of the Division Bench would bind the parties. The view expressed by the
Tribunal in the circumstances is unnecessary and uncalled for. The order made
by the Tribunal is therefore set aside. The appeals are allowed. No costs.”
21. A similar question came up for consideration before the
Division Bench of Himachal Pradesh High Court in the judgment reported in “2
002(3) ATJ 629 (H.P.AGRO INDUSTRIES CORPN.LTD. AND OTHERS ETC. Versus RAJ
KUMAR AND ANOTHER ETC.)”. The question that was posed for consideration was,
“whether the orders passed by the Administrative Tribunal by invoking the
provisions of the Industrial Disputes Act or under the corresponding law by
the time being in force in favour of the petitioners, were illegal, unlawful
and without jurisdiction”. The Division Bench of the Himachal Pradesh High
Court, ultimately concluded that- where the rights or obligations were created
by the Industrial Dispute Act, the only remedy for the aggrieved person has to
approach the forum constituted by that Act alone and any other interpretation
would be inconsistent with and contrary to law laid down by the Hon’ble
Supreme Court.
22. In the judgment reported in “(2004)4 SCC 268 (U.P.STATE
BRIDGE CORPORATION LTD. AND OTHERS versus U.P.RAJYA SETU NIGAM S.KARAMCHARI
SANGH)”, the Hon’ble Supreme Court, while holding that the rights and
obligations sought to be enforced by the Union in the Writ Petition, were
those created by the Industrial Disputes Act, the remedy was to invoke the
forum created under the said Act, was pleased to hold in para 12 as under:
“12. Although these observations were made in the context of the
jurisdiction of the civil court to entertain the proceedings relating to an
industrial dispute and may not be read as a limitation on the Court’s powers
under Article 226, nevertheless it would need a very strong case indeed for
the High Court to deviate from the principle that where a specific remedy is
given by the statute, the person who insists upon such remedy can avail of the
process as provided in that statute and in no other manner.”
(Emphasis added)
23. On behalf of the ‘Gang Mazdoors’, Ms.R.Vaigai, learned
counsel appearing for those petitioners, placed reliance upon the judgment of
the Hon’ble Supreme Court reported in “(1987)4 SCC 99 (KRISHNA DISTRICT
CO-OPERATIVE MARKETING SOCIETY LIMITED, VIJAYAWADA versus N.V. PURNACHANDRA
RAO AND OTHERS)”, wherein, the Hon’ble Supreme Court, while dealing with a
case arising under Section 41(1) and (3) of the Andhra Pradesh Shops and
Establishments Act, approved the Division Bench Judgment of the High Court,
wherein, it was held that in considering the termination of service of an
employee by way of retrenchment was legal and justified, was open for
consideration by the authority under the said Act and also determine whether
Section 25(F) and (G) of the Central Act were complied with or not. It was
further held that the Authority had jurisdiction to set aside the orders of
termination for giving appropriate relief in the event of the finding to the
effect that there was no compliance of Section 25(F) and (G) of the Central
Act.
24. It will also be useful to refer to two other Division
Bench Judgments of our High Court, reported in “1990 (2) LLN 26 (INDIAN BANK
(REP. BY ITS ASSISTANT GENERAL MANAGER) versus R.S. THIRUVENGADAM) and
“1990(2) LLN 355 (INDIAN BANK, REP. BY ITS GENERAL MANAGER, MADRAS versus
K.S.GURUMOORTHY AND ANOTHER)”. In the judgment reported in “19 90(2) LLN 26”,
the then Hon’ble Chief Justice Dr.A.S.Anand, as he then was, while concurring
with the main judgment rendered by the Hon’ ble Justice Kanakaraj, as he then
was, has stated the power of this Court under Article 226 of the Constitution,
while rendering substantial justice. Para 39 of the order of the learned
Chief Justice is to the following effect:-
“39. Even ignoring what has been said above, the whole question can
be looked at from another angle also. This Court is competent enough, while
exercising jurisdiction under Article 226 of the Constitution of India, to
ignore the order of the Authority under the Shop Act on the alleged ground of
lack of jurisdiction on and with a view to render justice itself proceed to
examine the validity of the order of discharge of the first respondent from
service on the basis of the material already on the record, without in any way
getting into the blurred area of critical appraisal of evidence or adjudicate
on disputed questions of fact. If the Court finds that the order of discharge
from service is per se unsustainable, it can extend its arm to set it at
naught rather than to ask another forum to first adjudicate on its
validity….”
In the judgment reported in “1990(2) LLN 355” (cited supra),
the Division Bench reiterated the legal position as under in para 7:
“7. ….. The proceedings in the instant case arise out of a writ
petition filed under Article 226 of the Constitution of India. Writ
jurisdiction is undoubtedly, an equitable jurisdiction and while balancing the
equities between the parties asserting rival claims, the Court examines the
conduct of the parties besides nature of the proceedings with a view to render
justice. While exercising writ jurisdiction, the Courts generally make an
attempt to reach wherever injustice is, so as to render justice. However, the
principles of equity must, for ever, remain present to the mind of the Court
and those principles are extended to do substantial justice to a party and not
get carried away by narrow technicalities which may ‘legitimise’ injustice.”
25. In the above stated legal background stated in the above
referred to decisions, when the competence of the Administrative Tribunal to
go into the question as to the violation of the provisions of the Industrial
Disputes Act is considered, it will have to be stated that the Hon’ble Supreme
Court, while approving the Full Bench decision of the Tribunal, reported in
“(2001)9 SCC 526” (cited supra) had specifically referred to only first two
conclusions of the Full Bench of the Tribunal. It cannot be lost sight of
that in its third conclusion, which has been elaborately set out in para 41 of
the Tribunal’s Full Bench judgment, it has been stated that that would be open
for the Tribunal to set aside the illegal order of termination and direct
reinstatement of the employee while leaving it open to the employer to act in
accordance with the statutory provisions and that to that extent, the
alternate remedy pleaded cannot act as a bar for exercising jurisdiction under
Article 226 of the Constitution. For stating the law to that extent, the Full
Bench of the Tribunal was equating itself to that of this Court for invoking
the extraordinary jurisdiction conferred under Article 226 of the
Constitution.
26. It is also to be noted that in the Original Applications
before the Administrative Tribunal, the applicants were challenging the
validity of the Government Order as being violative of Article 14 of the
Constitution, a contention which possibly could not have been entertained by
the Industrial Tribunal of the Labour Court.
27. In the case on hand, before the State Administrative
Tribunal, there was a specific contention raised in the written submissions
filed on behalf applicants in O.A.No.13786 of 2002 pointing out that the
orders of termination wherein, violation of Section 25(F) of the Industrial
Disputes Act and therefore, such termination orders were ab initio void. It
is also common ground that there was no such compliance of the provisions of
either Section 25(F) of the Industrial Disputes Act or the stipulations
contained in Chapter V-(B) relating to retrenchment of the employees.
28. All the ‘Gang Mazdoors’ came to be employed by specific
orders of appointments in the year 1997 and came to be terminated in the year
2002. In between their services were regularised after completion of the
required period of probation . It is relevant to state that while at the time
of their initial appointment, they were paid a consolidated wages, on their
regularisation, they were fixed in time scale of pay. Immediately, after the
issuance of the orders of termination, the ‘Gang Mazdoors’ approached the
State Administrative Tribunal by filing several Original Applications by
joining together in several groups. In fact, the Tribunal, though has not
analysed the question as to the violation complained of based on the
provisions of the Industrial Disputes Act, it had gone into the merits of the
orders of termination and when it ultimately held that the abolition of the
posts of ‘Gang Mazdoors’ of 9728 being the policy decision of the State
Government, the same cannot be interfered with. The Tribunal, was however, of
the view that the ‘Gang Mazdoors’ were entitled for some compensation and
accordingly, directed the respondent State to pay a sum equivalent to six
months salary to all the applicants as well as the other similarly placed
‘Gang Mazdoors’ who did not approach the Tribunal.
29. In the above said factual situation, the question for
consideration is, whether it can be held that the Tribunal had every
jurisdiction to go into the question about the violations of the provisions of
the Industrial Disputes Act while dealing with a case of nonemployment of an
employee.
30. Though in the judgment reported in “1987(4) SCC 99”
(cited supra), while dealing with a case, which arose under the provisions of
the Andhra Pradesh Shops and Establishments Act, 1966, the Hon’ble Supreme
Court was pleased to hold that the Shops Act Authority will have every
jurisdiction to deal with the contention based on violation of the provisions
of the Industrial Disputes Act in particular, Section 25(F) and (G), the later
decision of the Hon’ble Supreme Court reported in “(2001)9 SC 526” (cited
supra), which dealt with a case arising out of the proceedings from a Central
Administrative Tribunal, has virtually held that an applicant seeking relief
under the provisions of the Industrial Disputes Act must ordinarily exhaust
the remedies available under that Act. Even though in the said judgment, the
Hon’ ble Supreme Court was pleased to approve of the Full Bench view of the
Tribunal reported in 1990(14) ATC 914 (cited supra), such an approval of the
said Full Bench decision could only be traced to the effect that even the said
Tribunal, if at all, could exercise the powers analogous under Article 226 of
the Constitution, can examine the correctness of the order of termination in
every respect under certain extraordinary situations and that it should be
judiciously administered. Therefore, de hors the conclusion of the Full Bench
of the Tribunal reported in “1990(14) ATC 914” (cited supra) in so far as it
held that an applicant seeking a relief under the provisions of the Industrial
Disputes Act must ordinarily exhaust the remedies available under that Act,
the powers of the Tribunal under Article 226 being available with it as stated
in para 43(3) of its judgment, in exercise of such power, with the self
imposed restrictions, when justice demands what this Court could do, the
Tribunal could equally administer justice without any limitation. In that way
it will have to be held that Tribunal could have examined the point raised
based on the violation of the provisions of the Industrial Disputes Act.
31. Again, when the legal position stated in the subsequent
judgment of the Hon’ble Supreme Court reported in “2004 (4) SCC 268” (cited
supra) is perused, it reaffirms the above said position. In this decision,
the Hon’ble Supreme Court would only point out that under Article 226 of the
Constitution, it would need a very strong case indeed for the High Court to
deviate from the principle that where specific remedy is given by the statute,
the person who insists upon such remedy can avail of the process as provided
in that statute and in no other manner.
32. The resultant position of the above discussion, would
lead us to the conclusion that in the facts and circumstances of the case,
where about 9728 employees complained a serious violation of the provisions of
the Industrial Disputes Act and where such violations complained of by those
‘Gang Mazdoors’ have been prima facie found to be not in controversy, the
question would be, whether the said ‘Gang Mazdoors’ who are 9728 in number
should now be driven to work out their remedy by invoking the jurisdiction of
the forums created under the Industrial Disputes Act by raising disputes
against their non employment. At the risk of repetition, it will have to be
stated that their employment which commenced from 1997 came to an end in the
year 2002 and in spite of a point raised by way of a contention before the
State Administrative Tribunal, the said contention was never considered by the
Tribunal and in the year 2004, would it be justified in directing the whole
lot of 9728 workmen to work out their remedy under the provisions of the
Industrial Disputes Act by approaching the machinery provided under that Act.
It is also relevant to be stated that as on date, there is no Presiding
Officer in the State Administrative Tribunal and we can also take judicial
notice of the fact that the State Government has decided to abolish the
Tribunal itself. In the said scenario, we find force in the contention of
Ms.R.Vaigai in relying upon the Division Bench Judgment of this Court reported
in “1991Wr.L.R.69 9” (cited supra) in particular paragraph 7 of the judgment
of His Lordship The Chief Justice Dr.A.S.Anand, as he then was, as well as,
the judgment reported in “1990(2) LLN 355”, paragraph 7 (mentioned above).
33. Therefore, going by the law laid down by the Hon’ble
Supreme Court in “(2004)4 SCC 268 (U.P.STATE BRIDGE CORPORATION LTD. AND
OTHERS versus U.P.RAJYA SETU NIGAM S.KARAMCHARI SANGH)” paragraph 12 as well
as the Division Bench judgments referred to above, we are convinced that even
though the grounds of attack of the petitioners against the order of the
Tribunal as well as the orders of termination issued to the ‘Gang Mazdoors’ on
the footing that such orders of termination were in violation of the
provisions of the Industrial Disputes Act, the same can be examined in these
Writ Petitions in the light of the extraordinary situation that demands such
scrutiny in these Writ Petitions. We, accordingly hold that in exercise of
our jurisdiction under Article 226 of the Constitution, it would be
justiciable to examine the said aspect in these Writ Petitions.
34. In the light of our conclusions as above, we answer the
questions 1 and 2 against the State Government.
35. The next question is, as to whether at all the Industrial
Disputes Act would be applicable to the establishment, viz., Department of
Highways of State of Tamil Nadu and consequently, to Gang Mazdoors.
36. While on behalf of the petitioners, it was contended that
the activities of the Department of High Ways in the matter of maintenance of
the public roads would fall within the definition of ‘industry’ as defined in
the Industrial Disputes Act, according to the respondent-State, the said
activity being the sovereign function of the State, would not fall within the
four corners of the provisions of the Industrial Disputes Act and therefore,
the violations complained of based on the provisions of the Industrial
Disputes Act cannot be gone into.
37. In this context, it would be worthwhile to refer to the
certain decisions relied upon by both parties.
38. In the judgment reported in “1988 LIC 690 (EXECUTIVE
ENGINEER, NATIONAL HIGHWAY DIVISION, BALASORE AND OTHERS versus REGIONAL
PROVIDENT FUND COMMISSIONER, BHUBANESWAR)”, the Division Bench of Orissa High
Court, while dealing with a case arising under the provisions of the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, took the
view that the Works Department of a Government where the contractors employed
their workmen in which, the principal employer only had a check control
regarding the quality, held that according to the specifications, the
employees working under the contractors cannot be held to be employees of the
Works Department nor can it be held that the said Department was the principal
employer. As the question arose in that judgment related to the coverage of
the employees of a contractor under the provisions of the Employees’ Provident
Funds Act and in the light of the fact that such employment was not directly
made by the Works Department, there is no scope for applying the said decision
to the facts of this case.
39. In one another decision reported in “1973 LAB.I.C. 553 (
SUPERINTENDING ENGINEER, NATIONAL HIGHWAY PROJECT, BHUBANESWAR versus BAIDHAR
LENKA AND ANOTHER)”, another Division Bench of the Orissa High Court, while
dealing with a case relating to ‘Roller-helper’ in the Department of the
National Highway Projects under the Works and Transport Department of the
Government of Orissa, wherein, the concerned person approached the Labour
Court under Section 33-C(2) of the Industrial Disputes Act claiming certain
benefits, the Division Bench, in the light of the decision prevailing then, as
to what is an ‘industry’ as held by the Hon’ble Supreme Court in “AIR 1970 SC
1407 (S.J.HOSPITAL, NEW DELHI versus K.S.SETHI)”, held that the National
Highway Project was carried on as part of sovereign function of the State
Government and that the same was not an ‘industry’ and consequently, the
concerned person cannot be termed as ‘workman’ coming within the provisions of
the Industrial Disputes Act. This Division Bench judgment of the Orissa High
Court will have to be analysed in the light of the subsequent decisions of the
Hon’ble Supreme Court which had dealt with the issue in detail. We shall deal
with the same at the appropriate stage when we discuss about the later
decisions.
40. In the judgment reported in “(2001)9 SCC 713 (STATE OF
GUJARAT AND OTHERS versus PRATAMSINGH NARSINGH PARMAR)”, the Hon’ble Supreme
Court made it clear that whenever a dispute arises as to whether a particular
establishment or part of it wherein appointment was made, is an ‘industry’ or
not, it would be for the person concerned who claims the same to be an
‘industry’, to give positive facts for coming to the conclusion that it
constitutes “an industry”. The Hon’ble Supreme Court observed that
ordinarily, a department of the government cannot be held to be an industry
and rather it is a part of the sovereign function. In such circumstances,
though it was contended that the dismissal was vitiated for non-compliance of
25-F of the Industrial Disputes Act, in the light of the assertion and denial
made by the state in the counter affidavit where a stand was taken that the
Forest Department cannot be held to be an industry, it was held that the
person concerned who was employed as a clerk governed by a set of rules
provided under the proviso to Article 309 of the Constitution of India and for
lack of necessary details furnished by the concerned workman, the decision of
the High Court in holding that the Forest Department is an ‘industry’ was
erroneous.
41. One other decision which was strongly relied upon by
Thiru A.L.Somayaji is the judgment reported in “1983(1) LLJ 309 (STATE OF
PUNJAB versus KULDIP SINGH AND ANOTHER)”. It is a Full Bench Judgement of
Punjab and Haryana High Court. The Full Bench was dealing with a question as
to whether the national communication system like National and State Highways
and their maintenance can be construed as the involvement of the state in a
trade or business activity or in any case something analogous thereto, even if
the latter aspect is viewed with the widest liberality in order to bring the
said activity under the definition of ‘industry’ under Section 2(j) of the
Industrial Disputes Act. The Full Bench was of the view that the
establishment construction and maintenance of national and state highways are
all essential functionary of the government which cannot be left to private
enterprise and therefore, such activities, such as network of communication
system, defence system were all sovereign functions of the state , which
cannot be passed on to the whimsicalities of private individuals or
Corporations. So holding, the Full Bench was of the view that such
departments of the Highways would not come within the ambit of ‘ industry’ as
defined under the provisions of the Industrial Disputes Act.
42. As against the above said views, there is one other
judgment of the Hon’ble Supreme Court reported in “(1999)1 SCC 596 (LAL
MOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD., AND OTHERS)”.
That was a case, where the question arose as to whether a project called
‘Righand Nagar Project’ of the Indian Railway Construction Company Limited
would fall within the definition of “industrial establishment” governed by
Chapter V-B of the Industrial Disputes Act and consequently, the workmen
concerned therein would be covered by Section 25 (N) sub section (1) of the
said Act. Dealing with the said issue, the Hon’ble Supreme Court took the
view that in order to come within the definition of ‘factory’ as defined under
Section 2(m) of the Factories Act, no fixed site was necessary and that even
‘open land’ can also be a part of the premises. The Hon’ble Supreme Court
dealt with the said question and held as under in para 17.
“17. It is difficult to accept this contention. It is true that the
word “premises” as found in the definition must have a fixed site but as held
by the Constitution Bench Judgment of this Court in Ardeshir H. Bhiwandiwala
(AIR 1962 SC 29), the term “premises” not only covers building but even open
land can also be a part of the premises. It is easy to visualise that when a
railway line is to be constructed over an area of 54 kms, it cannot be
constructed overnight. The whole exercise would be carried out in a phased
manner. For laying down a railway line, a number of workmen, supervisors and
other clerical staff will have to attend the site where the railway line is to
be laid. That site on which the railway line is to be laid will necessarily
have space for storage of loose rails, sleepers, bolts etc. All these
articles will have to be laid and fixed on a given site before any part of the
railway tract becomes ready. Consequently, construction of a railway line
would necessarily imply fixed sites on which such construction activity is
carried on, in a phased manner. Every time when such construction activity is
carried on, it must necessarily be on a given fixed site where all the workmen
concerned would work for the purpose of laying down a railway line at that
site. Thus, even though the railway line is to be laid over 54 kms of land,
every part of the said land would consist of a “factory” at a given point of
time as from time to time in a phased manner, the entire railway line will
have to be laid. Once the entire work is finished, then a stage would be
reached when the construction activity would come to an end and the premises
thereof may cease to be a “factory” but so long as construction work is being
carried out in phases, every part of the land on which such construction
activity takes place would form a part and parcel of the “premises” as such.
A railway line cannot be laid except on a fixed site. It is not, therefore,
possible to accept the submission of learned Senior Counsel, Shri Dave that
the Rihand Nagar Project which was to carry out the construction work of a
railway line up to 54 kms had no fixed site to operate upon and therefore, was
not a “premises”. …”
(Emphasis added)
43. Again, while dealing with the question as to whether the
laying of railway line can be construed as a “manufacturing activity”, the
Hon’ble Supreme Court has held as under in para 18.
“18. ….. It cannot be disputed that while railway lines are being
constructed on a given site, no article or substance is being made or
repaired, maintained, finished etc. However, the only relevant clause of the
definition which has to be seen is whether at the Rihand Nagar Project of the
respondent-Company, the process of construction of a railway line amounted to
adapting any article or substance with a view to its use. It cannot be
seriously disputed that raw materials like railway sleepers, bolts and loose
railway rails when bought by the respondent-company from the open marked and
brought on the site were articles visible to the eyes and were moveable
articles. These articles were adapted for their use. Their use was for
ultimately laying down a railway line. In that process, sleepers, bolts and
rails would get used up. If that happens, the definition of ” manufacturing
process” dealing with adaptation of these articles for use would squarely get
attracted. However, Shri Dave, learned counsel for the respondent, submitted
that the ultimate product of this exercise or process is the bringing into
existence a railway track which is embedded in the earth which cannot be sold,
transported, delivered or disposed of like a moveable property. To that
extent, Shri Dave is right. However, as the definition is worded, it cannot
be said of necessity that any end product which results after adapting any raw
material, article or substance “with a view to its use” must necessarily
result into a moveable final product or a commodity. ….”
“….. We, therefore, are not in a position to sustain even the
second reason given by the High Court in the impugned judgment to the effect
that no “manufacturing process” was being carried out in the project in
question. Even accepting the contention of learned counsel, Shri Dave for the
respondent that the final product, namely, construction of a railway line
embedded in the earth was not the subject matter of the sale, transfer,
delivery or disposal, still the raw materials which were adapted for their use
with a view to constructing a railway line which was the final product could
be said to have fallen within the sweep of the definition of the term
“manufacturing process” as found in Section 2(k) of the Factories Act. Once
that conclusion is reached, the result becomes obvious. All the
appellant-workers would squarely attract the definition of the term “workmen”
as found in Section 2(l) of the Factories Act as they were working for
remuneration in a manufacturing process carried out by the Project in
question. It must, therefore, be held that all the requirements of the term
“factory” as defined by Section 2(m) of the Factories Act are satisfied on the
facts of the present case.”
(Emphasis added)
44. In yet another judgment reported in “(2000)3 SCC 224 (
MUNICIPAL CORPORATION OF DELHI versus FEMALE WORKERS (MUSTER ROLL) AND
ANOTHER)” a question arose as to whether the ‘activity of Delhi Municipal
Corporation in undertaking construction, laying and repairing of roads and
digging of trenches, would come within the definition of ‘ industry’ and
whether the dispute between the workmen and the Corporation will have to be
thrashed under the provisions of the Industrial Disputes Act‘. The Hon’ble
Supreme Court, dealt with the said issue and the ratio has been set out in
para 36 of the judgment which is to the following effect:
“36. Taking into consideration the enunciation of law as settled by
this Court as also the High Courts in various decisions referred to above, the
activity of the Delhi Municipal Corporation by which construction work is
undertaken or roads are laid or repaired or trenches are dug would fall within
the definition of “industry”. The workmen or, for that matter, those employed
on muster roll for carrying on these activities would, therefore, be “workmen”
and the dispute between them and the Corporation would have to be tackled as
an industrial dispute in the light of various statutory provisions of the
industrial law, one of which is the Maternity Benefit Act, 1961. This is the
domestic scenario. Internationally, the scenario is not different.”
(Emphasis added)
45. In the Judgment reported in “(1988)2 SCC 537 (DES RAJ AND
OTHERS versus STATE OF PUNJAB AND OTHERS)”, the Hon’ble Supreme Court dealt
with a case of the Irrigation Department of the State of Punjab and by
applying the ‘Dominant test’ evolved by the Hon’ble Supreme Court in the oft
quoted judgment in “Bangalore Water Supply and Sewerage Board case” reported
in (1978)2 SCC 213, it was held that the Irrigation Department of the State
Government is an ‘industry’ within the meaning of Section 2(j) of the
Industrial Disputes Act. While dealing with the said issue, the Hon’ble
Supreme Court had occasion to consider the Full Bench judgment relied upon by
Mr.A.L.Somayaji, learned Senior counsel, reported in “1983(1) LLJ 309” (cited
supra) which was followed by a Full Bench of the same High Court, reported in
“1984 CLJ 349 (OM PRAKASH versus EXECUTIVE ENGINEER, SYL, KURUKSHETRA)”.
While dealing with the issue involved in that case, the Hon’ble Supreme Court
decided the issue in the anvil of the “Dominant Nature” test set out by the
Hon’ble Supreme Court in “Bangalore Water Supply and Sewerage Board case”
reported in (1978)2 SCC 213. The Dominant Nature test as set out in the said
judgment is to the following effect:-
“The dominant nature test:
(a) Where a complex of activities, some of which qualify for
exemption, others not, involves employees on the total undertaking, some of
whom are not “workmen” as in the University of Delhi Vs. Ram Nath (19 64(2)
SCR 703) or some departments are not productive of goods and services if
isolated, even then, the predominant nature of the services and the integrated
nature of the departments as explained in the ” Corporation of Nagpur (1960(2)
SCR 942)” will be the true test. The whole undertaking will be “industry”
although those who are not ” workmen” by definition may not benefit by the
status.
(b) Notwithstanding the previous clauses, sovereign functions,
strictly understood, (alone) qualify for exemption, not the welfare activities
or economic adventures undertaken by government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are
units which are industries and they are substantially severable, then they can
be considered to come within Section 2(j).
(d) Constitutional and competently enacted legislative provisions may
well remove from the scope of the Act categories which otherwise may be
covered thereby.”
(Emphasis added)
Therefore, applying the above said test, the Hon’ble Supreme Court proceeded
to hold that the Irrigation Department of the State would fall within the
definition of ‘industry’ and therefore, the provisions of the Industrial
Disputes Act would get attracted.
46. Again, in the judgment reported in “(1998)3 SC 237 (ALL
INDIA RADIO versus SANTOSH KUMAR AND ANOTHER)”, the Hon’ble Supreme Court held
that ‘All India Radio and Doordarshan’ would fall within the definition of
‘industry’ under Section 2(j) of the Industrial Disputes Act.
47. In the judgment reported in “(2000)8 SCC 61 (AGRICULTURAL
PRODUCE MARKET COMMITTEE versus ASHOK HARIKUNI AND ANOTHER)”, the Hon’ble
Supreme Court has dealt with the question as to what activity of the State
could be considered as ‘sovereign and non sovereign functions’. The legal
position has been clearly set out in para 21 of the said judgment, to the
following effect:-
“21. In other words, it all depends on the nature of power and manner
of its exercise. What is approved to be “sovereign” is defence of the
country, raising armed forces, making peace or war, foreign affairs, power to
acquire and retain territory. These are not amenable to the jurisdiction of
ordinary civil Courts. The other functions of the State including welfare
activity of State could not be construed as “sovereign” exercise of power.
Hence, every governmental function need not be “sovereign”. State activities
are multifarious, from the primal sovereign power, which exclusively
inalienably could be exercised by the sovereign alone, which is not subject to
challenge in any civil court to all the welfare activities, which would be
undertaken by any private person. So merely if one is an employee of
statutory bodies would not take it outside the Central Act. If that be so
then Section 2(a) of the Central Act read with Schedule I gives large number
of statutory bodies which should have been excluded, which is not. Even if a
statute confers on any statutory body, any function which could be construed
to be ‘sovereign’ in nature would not mean every other functions under the
same statute to be also sovereign. The court should examine the statute to
sever one from the other by comprehensively examining various provisions of
that statute. In interpreting any statute to find if it as “industry” or not
we have to find its pith and substance. The Central Act is enacted to
maintain harmony between employer and employee which brings peace and amity in
its functioning. This place and amity should be the objective in the
functioning of all enterprises. This is to the benefit of both the employer
and employee. Misuse of rights and obligations by either or stretching it
beyond permissible limits have to be dealt with within the framework of the
law but endeavour should not be in all circumstances to exclude any enterprise
from its ambit. That is why courts have been defining “industry” in the
widest permissible limits and “sovereign” functioning within its limited
orbit.”
(Emphasis added)
48. Yet another decision of the Hon’ble Supreme Court, which
had dealt with the question as to what kind of activities of the State could
be characterized as ‘sovereign functions’ is the one reported in “(1996)2 SCC
293 (CHIEF CONSERVATOR OF FORESTS AND ANOTHER versus JAGANNATH MARUTI KONDHARE
AND OTHERS)”. In the said decision, the Bangalore Water Supply and Sewerage
Board case” was also referred and the position has been stated as under in
paragraphs 7 and 8:
“7. As per the Bangalore water Supply case (1978)2 SCC 213),
sovereign functions “strictly understood” alone qualify for exemption, and not
the welfare activities or economic adventures undertaken by the Government.
This is not all. A rider has been added that even in the departments
discharging sovereign functions, if there are units which are industries and
they are substantially severable, then they can be considered to be an
industry. As to which activities of the Government could be called sovereign
functions strictly understood, has not been spelt out in the aforesaid case.
“8. Ms.Jaising, however, urges that as the majority had accepted the
test explained in the Corpn. Of the City of Nagpur VS. Employees (1 960 (2)
SCR 942), we should note what was Stated about sovereign functions in that
decision. In that judgment this aspect has been dealt at pp.953 to 955 of the
Report. The Bench of that case first noted the rival contention advanced in
this regard, which by the learned counsel for the Corporation was to enlarge
the scope of these functions as to comprehend all the welfare activities of a
modern State, whereas the learned counsel for the respondents sought to
confine them to what are aptly termed “the primary and inalienable functions
of a constitutional government”. In support of the contentions advanced
reference was made to Holland’s Jurisprudence as to which it was observed by
the Bench that the same had no relevance. The Bench then referred to what was
stated by Lord Watson in Coomber V. Justices of Berks (1883-84 (9) AC 61), in
which, the functions such as administration of justice, maintenance of order
and repression of crime were described among the primary and inalienable
functions. Reference was then made to the dissenting judgment of Issacs, J.
in Federated State School Teachers’ Assn. of Australia V. State of Victoria
(1929 (41) CLR 569 ), in which the learned Judge stated as below at p.585:
“Regal functions are inescapable and inalienable. Such are the
legislative power, the administration of laws, the exercise of the judicial
power. Non-regal functions may be assumed by means of the legislative power.
But when they are assumed the State acts simply as a huge corporation, with
its legislation as the charter. Its action under the legislation, so far as
it is not regal execution of the law is merely analogous to that of a private
company similarly authorised.”
The Bench thereafter observed that the aforesaid clearly mark out the
ambit of the regal functions as distinguished from the other powers of a
State. This shows that as per the Corpns. of Nagpur case, those functions
alone which are inalienable can be called sovereign. Ms.Jaising would like us
to take the same stand.”
(Emphasis added)
In para 12, the Hon’ble Supreme Court held that the dichotomy of sovereign and
non sovereign functions does not really exist and that it would depend upon
the nature of the power and the manner of its exercise. Ultimately, in para
13, the Hon’ble Supreme Court has stated the legal position as under:-
“13. The aforesaid shows that if we were to extend the concept of
sovereign function to include all welfare activities as contended on behalf of
the appellants, the ratio in Bangalore Water Supply case would get eroded, and
substantially. We would demur to do so on the face of what was stated in the
aforesaid case according to which except the strictly understood sovereign
function, welfare activities of the State would come within the purview of the
definition of industry; and, not only this, even within the wider circule of
sovereign function, there may be an inner circule encompassing some units
which could be considered as industry if substantially severable.”
(Emphasis added)
49. From the above referred to decisions, we can easily
discern that all functions of the State need not necessarily be sovereign in
nature, merely because such functions are either organised or administered by
the State. In fact, in the Bangalore Water Supply case, the Hon’ble Supreme
Court made it clear that while applying the dominant nature test, even in the
departments discharging sovereign functions if there are units which are
industries and they are substantially severable, they can be considered to be
an industry to come within Section 2(j) of the Industrial Disputes Act.
50. Now coming to the decision of the Division Bench of
Orissa High Court, reported in 1973 LIC 553 (cited supra), in the light of
later decisions of the Hon’ble Supreme Court as narrated above, this decision
can no longer be followed.
51. Going by the dictum of the Hon’ble Supreme Court reported
in “(2000)8 SCC 61 (AGRICULTURAL PRODUCE MARKET COMMITTEE versus ASHOK
HARIKUNI AND ANOTHER)”, the ratio can be deduced to the effect that the Court
should examine the statute to sever one from the other by comprehensively
examining various provisions of that statute and in interpreting any statute
to find if it is ‘industry’ or not, one has to find its pith and substance.
By and large it was pointed out that sovereign functions may cover its
legislative functions, administration of law, eminent domain, maintenance of
law and order, internal and external security, grant of pardon and such other
analogous functions. The theory of inalienableness of sovereign functions has
also been stressed by the Hon’ble Supreme Court.
52. In the anvil of the above legal position, when the case
on hand is examined, we find that the ‘Gang Mazdoors’ were employed initially
on temporary basis and later their services were regularised after completion
of the required period of probation. The nature of work was nothing but the
maintenance of the roads at regular intervals. The Gang Mazdoors after their
regularisation, were fixed in the time scale of pay. The Gang Mazdoors who
were employed in the Work Charged Establishment for execution of specific
works and projects on completion of the work for which they were recruited,
were being transferred from old works to new works and they continued in
service without any break.
53. In fact, when G.O.Ms.371 dated 19-8-1997 came to be
issued for recruitment of the ‘Gang Mazdoors’ in 9813 posts, it was pointed
out that employment of such ‘Gang Mazdoors’ should preferably be made from the
villages which are adjacent to the road margins, that such criteria was laid
inasmuch as, the maintenance of roads, cutting of tree branches, repairing
work to be undertaken could all be done only by engaging such local persons
hailing from such adjacent villages. It was also stated therein that by
providing scope for such engagement, some job opportunities can be extended to
the poor local villagers. From all the above said factors, it can be culled
out that the nature of jobs performed by the Gang Mazdoors were purely manual
and it did not require any special skill to attend to such jobs. What all
required for a Gang Mazdoor, is, a good physic and easy availability in order
to upkeep and maintain the highways in a proper condition.
54. As far as the nature of job performed by the Gang Mazdoor
is concerned, it can be easily equated to the principles set out in the
judgment of the Hon’ble Supreme Court reported in “(1999)1 SCC 596 ( LAL
MOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD. AND OTHERS)”,
wherein, the Hon’ble Supreme Court dealt with a case in respect of a ‘Railway
construction Company’. We find the job of a Gang Mazdoor to be more or less
identical. That was a case where the concerned workmen were employed in a
project of construction of a railway line of 54 kms known as ‘Rihand Nagar
Project’ in the state of Uttar Pradesh. Dealing with the said issue, the
Hon’ble Supreme Court specifically considered the definition of ‘industrial
establishment’ along with Section 2(m) of the Factories Act and held that even
an open land can also be a part of the premises and that the construction or
laying of a railway line over an area of 54 kms, with the aid of a number of
workmen of different categories on the very site on which, the railway line is
to be laid would by itself satisfy the definition of ‘fixed site’ in order to
call the said site a ‘factory’. It was further held that even though no
article or substance was being made or repaired, maintained, finished, etc.,
in the course of construction of a railway line, yet it can be construed that
the process of construction of railway line amounted to adapting any article
with a view to its use and thereby making it a “manufacturing activity”.
Similarly in the judgment reported in (2000)3 SCC 224 (MUNICIPAL CORPORATION
OF DELHI versus FEMALE WORKMEN (MUSTER ROLL) AND ANOTHER), the Hon’ble Supreme
Court held that the construction work undertaken or road laid or repaired or
trenches dug would fall within the definition of “industry”.
55. Adopting the above said reasoning applied to the
construction of a railway line carried on by the Government of India
organization, as well as laying of roads by the Municipal Corporation of
Delhi, to the facts of this case, it will have to be held that the maintenance
of road and the allied activities which were carried out by the ‘ Gang
Mazdoors’ in a particular stretch of road with the aid of certain tools
coupled with the nature of job performed by them would certainly make it a
‘manufacturing process’ carried out in a fixed site and thereby bringing it
within the four corners of the definition of ‘ industrial establishment’ as
defined under Chapter V(B) of the Industrial Disputes Act.
56. Having regard to such nature of job performed by the Gang
Mazdoors in the Department of Highways, we have no difficulty in reaching a
conclusion that such industrial activity was separable from the Regal
functions of the State and thereby the application of the provisions of the
Industrial Disputes Act automatically comes into play.
57. The above said conclusion of ours is also supported by
the very stand taken by the State in G.O.Ms.No.160 dated 5-9-2002. While
discussing as to what are the distinct features as between a sovereign and
non-sovereign functions, earlier, we pointed out that the Hon’ble Supreme
Court in various decisions made it clear that a sovereign function is always
an ‘inalienable’ one. Therefore, when the action of the State in abolishing
the posts of Gang Mazdoors came to be made under G.O.Ms.No.160, dated 5-9-202,
we find in para 5 of the said Government Order, the State Government itself
stated that while the salary part of the expenditure on Gang Mazdoors was on
the high side, the maintenance of the said highways can be carried out by
entrusting the same with the private contractors by formulating a scheme.
Therefore, while the State Government wanted to abolish the posts of Gang
Mazdoors, in the same breadth, it decided that such works which were hitherto
carried on by the Gang Mazdoors could be entrusted to private contractors and
thereby, it was virtually, admitted by the State that the job of road
maintenance was not inalienable. In other words, by its own admission in the
impugned Government Order, namely, G.O.Ms.No.1 60, dated 5-9-2002, the State
Government tacitly admitted that the job of Gang Mazdoors could be equally
performed by private parties by entering into separate contracts. When such a
position is indisputably accepted by the State Government, there is no
difficulty in holding that the job of a Gang Mazdoor for maintaining the road
can never be characterised as a sovereign function of the State in order to
exclude the same from the application of the Industrial Disputes Act. We,
therefore, hold that the provisions of the Industrial Disputes Act are
applicable to the establishment, viz., the Department of Highways of the State
of Tamil Nadu, dealing with the construction and maintenance of roads and the
Gang Mazdoors who were employed in such maintenance work, were all workmen
under the provisions of the Industrial Disputes Act. The above said
conclusion leaves us to the consequential question as to whether there was any
violation of the provisions of Industrial Disputes Act in order to grant the
necessary relief to the Gang Mazdoors.
58. On this question, Ms.R.Vaigai, learned counsel appearing
for the petitioners, contended that the various orders of termination were
issued after the issuance of G.O.Ms.No.160, dated 5-9-2002, that while issuing
the said orders of termination, none of the provisions of Industrial Disputes
Act, which required compliance were taken into account or complied with.
59. The learned counsel contended that the termination orders
issued to 9728 Gang Mazdoors would amount to retrenchment as defined under
Section 2(oo) of the Industrial Disputes Act, that in the light of the fact
that such retrenchment related to an industrial establishment in which more
than one hundred workmen were employed on an average per working day for the
preceding twelve months to the date of retrenchment, Chapter V- B of the
Industrial Disputes Act also get attracted. The learned counsel would further
contend that inasmuch as, no prior permission of the Government or such
authority as stipulated under Section 25-N (2) falling under Chapter V-B had
been obtained and further since no retrenchment compensation as prescribed
under Section 25-F was also paid, the whole lot orders of termination issued
to 981 3 Gang Mazdoors would become ab initio void.
60. As far as the non-compliance of the various provisions
contained in Chapter V-B of the Industrial Disputes Act or 25-F and 25-N of
the said Act, the same is not in controversy. The total number of Gang
Mazdoors who came to be terminated by identical orders of termination dated
7-9-2002 pursuant to G.O.Ms.No.160, dated 5-9-2002 is concerned, the same is
also not in dispute. In such factual situation, there is no more to be
examined as to the controversy centering around the above said legal position.
When once the State Government took the stand that the provisions of the
Industrial Disputes Act were not applicable and when the non-compliance of the
various stipulations contained in either Chapter V-B or Section 25(F) of the
Industrial Disputes Act cannot also be disputed, it will have to be inevitably
held that the non-employment of the entire lot of Gang Mazdoors which squarely
fall within the definition of Section 2(oo) of the Industrial Disputes Act was
wholly illegal and consequently the only other question to be considered as to
what is the relief to be granted to the Gang Mazdoors?
61. Before going into the above said question, we feel that
the additional question now raised on behalf of the State in the present Writ
Petitions, i.e., “whether the very employment of the Gang Mazdoors was in
accordance with law and whether such employment should be held to be void and
therefore, such an illegal appointment can never be restored in these Writ
Petitions?” needs examination.
62. The above said contention is based on the submission that
the initial induction of the Gang Mazdoors itself was contrary to the rules
and if that be so, accepting their claim would result in an illegality being
given a seal of approval or restoration of an illegal action. It was
contended that G.O.Ms.No.371 itself was contrary to the rules framed under
Article 309 of the Constitution and it was not an acceptable system of
selection. It was further contended that the exemption of Employment Exchange
rule was not made prior to the paper publication calling for the applications.
It was also contended that the power under Rule 48 of the Tamil Nadu State and
Subordinate Service Rules cannot be invoked for issuing the relaxation of
Rules 4 and 5 of the Basic Recruitment Rules. It was, therefore, contended
that the original appointment itself was a nullity.
63. In support of the above said submissions, reliance was
placed upon the judgment reported in “(1997)2 SCC 1 (ASWANI KUMAR AND OTHERS
versus STATE OF BIHAR AND OTHERS), 1973(2) LLJ 180 (T.C.SREEDHARAN PILLAI
versus STATE OF KERALA AND OTHERS), AIR 1992 SC 789 (DELHI DEVELOPMENT
HORTICULTURE EMPLOYEES’ UNION versus DELHI ADMINISTRATION, DELHI AND OTHERS),
AIR 1966 SC 828 (GADDE VENKATESWARA RAO versus GOVERNMENT OF ANDHRA PRADESH
AND OTHERS), 2004 Wr.L.R.434 (UNION OF INDIA, UNION TERRITORY OF PONDICHERRY,
REP. BY THE CHIEF SECRETARY TO GOVT. AND TWO OTHERS versus ILANGO, ETC.,),
2004(3) CTC 549 (STATE OF UTTARANCHAL, THROUGH COLLECTOR, DEHRADUN AND ANOTHER
versus AJIT SINGH BHOLA AND ANOTHER) and 2002(4) CTC 385 (L.JUSTINE AND
ANOTHER versus THE REGISTRAR OF COOP.SOCIETIES, CHENNAI AND TWO OTHERS)”.
64. In the judgment reported in “(1997)2 SCC 1 (ASWANI KUMAR
AND OTHERS versus STATE OF BIHAR AND OTHERS)”, the Hon’ble Supreme Court
considered the appointment of certain employees by the Chairman of a Selection
Committee, which appointments were over and above the posts which were created
to implement the scheme in different categories. The Hon’ble Supreme Court,
as a matter of fact, found that while the budgeted expenditure was for
recruitment of 2250 employees in the sanctioned posts, the excess recruitment
of 6000 employees by the Chairman of the Selection Committee without there
being any vacancies to receive them was wholly unauthorised, incompetent and
void. It was also found that the whole lot of recruitment was in violation of
established norms and procedure for recruiting Class-III and Class-IV
employees as laid down from time to time. It was ultimately held that the
candidates appointed in an unauthorised manner against non-existing vacancies
can neither be confirmed nor regularised inasmuch as the very appointment
itself was a nullity.
65. From the Judgment reported in “1973(2) LLJ 180 (T.C.
SREEDHARAN versus STATE OF KERALA AND OTHERS)”, the Full Bench of the Kerala
High Court, while dealing with Rule 39 of the Kerala State and Subordinate
Service Rules which is analogous to Rule 48 of the Tamil Nadu State and
Subordinate Service Rules, upheld the validity of the said Rule, rejecting the
various contentions as regards the pitfalls of the said rules in the event of
the State Government invoking the said Rule. However, the Full Bench took the
view that the action of the Government in passing a Government Order, whereby,
it sought to restore the rank of all the Assistants who joined the Secretariat
between 17-1 2-1958 and 13-11-1963 and who were superseded by their juniors
for promotion to Grade I for want of test qualification, was not a justifiable
basis for a classification inasmuch as there was no time fixed for the persons
concerned to acquire the test qualification and get promoted to Grade I in
order to be eligible for the benefit of restoration.
66. In the judgment reported in “AIR 1992 SC 789 (DELHI
DEVELOPMENT HORTICULTURE EMPLOYEES’ UNION versus DELHI ADMINISTRATION, DELHI
AND OTHERS)”, the Hon’ble Supreme Court while holding that employment given to
certain persons under the schemes which were evolved to provide income for
those who were below the poverty line and particularly during the periods when
they are without any source of livelihood, such employment cannot be extended
to the level of ultimate regularisation. In that context, the Hon’ble Supreme
Court also expressed its displeasure as to the manner in which, several
recruitments were made de-hors the Employment Exchanges which were
characterised illegal employment market and the recruitments made in such
cases or characterised as back door entry. In fact, the question for
consideration in the said judgment was as to whether the persons employed
under Jawaharlal Rojgar Yojana scheme, can seek for regularisation merely
because they have put in 240 days of service. The Hon’ble Supreme Court
rejected the claim of such persons.
67. In the judgment reported in “AIR 1966 SC 828 (GADDE
VENKATESWARA RAO versus GOVERNMENT OF ANDHRA PRADESH AND OTHERS)”, the Hon’ble
Supreme Court held as a proposition of law that after setting aside an order
of the Governor would result in restoration of an illegal order, the Court
should not exercise its extraordinary discretionary power in such
circumstances. Similar position was stated in the judgment reported in
“2004(3) CTC 549 (STATE OF UTTARANCHAL, THROUGH COLLECTOR, DEHRADUN AND
ANOTHER versus AJIT SINGH BHOLA AND ANOTHER)”.
68. In the judgment reported in “2004 Wr.L.R.434 (UNION OF
INDIA, UNION TERRITORY OF PONDICHERRY, REP. BY THE CHIEF SECRETARY TO GOVT.
AND TWO OTHERS versus ILANGO, ETC.,)”, the Division Bench of our High Court
applied the law laid down by the Hon’ble Supreme Court reported in AIR 1990 SC
789 in respect of a claim made by temporary employees of the Legislative
Assembly Department of Government of Pondicherry whose services were
terminated as their services were not recruited applying the regular
recruitment rules not in sanctioned posts.
69. As far as the other Division Bench of our High Court
reported in “2002 (4) CTC 385 (L.JUSTINE AND ANOTHER versus THE REGISTRAR OF
COOP.SOCIETIES, CHENNAI AND TWO OTHERS)”, that was a case of various employees
employed in different co-operative societies at different points of time
without reference to Employment Exchanges and without observing the conditions
regarding the educational qualifications and technical qualifications relating
to co-operative training and beyond the prescribed cadre strength, were
declared as illegal appointments and that such appointments cannot be upheld
in exercise of the discretionary jurisdiction under Article 226 of the
Constitution. It was further held that mere completion of 480 days of service
of those employees will not make them eligible to invoke the provisions of the
Tamilnadu Industrial Establishments (Conferment of Permanent Status to
Workmen) Act 1981, inasmuch as, their appointment itself was illegal and
unauthorised.
70. The above said Division Bench judgment has also been
upheld by the Hon’ble Supreme Court in Civil Appeal No.1413 of 2003, etc.,
dated 28-7-2004. Before the Division Bench, G.O.Ms.No.86 dated 12-3-200 1 was
the subject matter of consideration. Under the said G.O., exemption was
granted by the Government in regard to the condition relating to the statutory
obligation on the part of the co-operative societies to notify the Employment
Exchange as regards the existing vacancies. While dealing with the said
issue, the Division Bench held that G.O.Ms.No.86 dated 12-3-2001 got the
effect of only authorising regularisation of the employees for the period
between 8-7-1980 to 11-3-20 01 exempting the notification of Employment
Exchanges. The Division Bench, therefore, held that such exemption granted
cannot be extended to the extent of violating Sub Rule 1 of the Rule 149 of
the Tamil Nadu Cooperative Societies Rules, which require certain other
requirements to be satisfied before making any fresh recruitment. It was
therefore, held that in the event of those employees recruited between 8
-7-1980 and 11-3-2001 in the various co-operative societies satisfying all
other requirements such as existence of vacancies, qualifications, etc., by
virtue of G.O.Ms.No.86 dated 12-3-2001, the requirement informing the
vacancies to the Employment Exchange need not be taken cognizance of. While
considering the said issue, the Hon’ble Supreme examined the question as to
whether the State had the requisite authority to direct regularisation of the
employees of the co-operative societies by reason of the G.O.Ms.No.86 dated
12-3-2001. Ultimately, the Hon’ble Supreme Court took the view that neither
Section 182 or 1 70 of the Co-operative Societies Act or Article 162 of the
Constitution would enable the State Government to issue such an exemption as
has been granted in G.O.Ms.No.86 dated 12-3-2001. Ultimately it was held that
if the State had no power to issue the said G.O.Ms.No.86 dated 12-3-2001, the
same must be held to be a nullity. The Hon’ble Supreme Court, ultimately,
upheld the order of the Division Bench.
71. In the additional submission now made, the State wants to
virtually attack its own orders on the ground that the same does not stand the
scrutiny of statutory provisions. The attack was mainly directed towards
G.O.Ms.No.184 dated 29-5-1997 and G.O.Ms.No.371 dated 19-8-1997. In
G.O.Ms.No.184 dated 29-5-1997, the requirement of staff strength was
determined at 14,872 and after taking note of the already filled up posts, the
vacancy position was determined at 9813. It was also decided to remove the
ban on recruitment as made in G.O.Ms.No.8 15 dated 5-6-1992. As on that date
about 764 persons were working on daily wage basis and their service was
directed to be regularised. It was further directed to fix the salary of the
Gang Mazdoors to be recruited at a sum of Rs.1500/- in the first year and to
fix them in the time scale from the second year. Necessa ry additional funds
required to an extent of about Rs.15 crores was also directed to be allocated.
The said Government Order was issued after getting the concurrence of the
Finance Department as per its communication dated 29-5-19 97. In
G.O.Ms.No.371 dated 19-8-1997, while prescribing the procedure for recruitment
in respect of the vacancies created under G.O.Ms. No.184 dated 29-5-1997, two
vital exemptions came to be granted. The said exemptions related to notifying
all the vacancies to the Employment Exchange and also age relaxation. Both
the requirements were contemplated under the Tamil Nadu Basic Service Rules.
The exemption came to be granted by invoking general Rule 48 of the Tamil Nadu
State and Subordinate Services Rules.
72. Under Rule 5(1) of the Special Rules for Tamilnadu Basic
Service, any candidate for appointment by direct recruitment to any of the
posts other than those in Clauses I and II must not have completed 30 years of
age on the date of appointment. Under Rule 4(a), the manner of selection of
direct recruitment has been provided, by which, the appointing authority
should call for panel of names from the Employment Exchanges concerned,
informing that office, of the anticipated vacancies of the posts and the
qualifications prescribed for such posts. It also provides that if the
appointing authority finds that none of the candidates in the panel sent by
the Employment Exchanges is suitable for appointment, he can seek for a second
list from the Employment Exchange. Only in the event of the concerned
Employment Exchange expressing its inability to sponsor qualified candidates,
the appointing authority can resort to make such other appointments after duly
informing his immediate superior as well as concerned Employment Exchanges.
Rule 48 of the Tamil Nadu State and Subordinate Rules enables the State
Government to grant exemptions. For better appreciation of the said Rule, the
same requires extraction:
“48. Notwithstanding anything contained, in these rules or in the
special rules, the Governor shall have power to deal with the case of any
person or class of persons serving in a civil capacity under the Government of
Tamil Nadu or of any person who has or of any class of person who have served
as aforesaid or any can didate or class of candidates for appointments to a
service in such manner as may appear to him to be just and equitable;
provided that, where any such rule is applicable to the class of any
person or class of persons, the case shall not be dealt with in any manner
less favourable to him or them than that provided by that rule.”
73. A close reading of Rule 48 of the Tamil Nadu State and
Subordinate Services Rules read with Rule 4 and 5(1) of the Special Rules for
Tamil Nadu Basic Service, it can be seen that there is scope for the State
Government to pass such orders which is required under certain specific
contingencies. Mr.A.L.Somayaji, learned senior counsel, contended that what
is provided under Rule 48 would be applicable only to any person or class of
persons who are already in the service of the State. From a reading of the
above said rule, we are unable to accept the said contention so raised on
behalf of the state. In fact, the expressions, “…. or any candidate or
class of candidates for appointment to a service in such manner as may appear
to him to be just and equitable” makes it clear that the power vested with the
Governor of the state to pass appropriate orders which would appear to him as
just and equitable irrespective of any specific rule contained in the State
and Subordinate Rules as well as Special Rules for Tamil Nadu Basic Servants
even in regard to any appointments to be made afresh into the service of the
state. Therefore, we are satisfied that under Rule 48, the Governor of the
State had every power to grant such exemptions that are required under
equitable and just considerations to exempt any of the stipulations contained
either in the State and Subordinate Service Rules or the Special Rules of the
Tamil Nadu Basic Servants. When the Government Orders which are now under
attack by the very State Government which issued the above said Government
Orders, viz., G.O.Ms.No.186 dated 29-5-1997 as well as G.O.Ms.No. 371 dated
19-8-1997 are perused, we find that the exemptions as regards the age
relaxation under Rule 5(1) as well as the requirement of notification through
Employment Exchange under Rule 4 came to be granted for certain reasons which
are specifically referred to in the very same Government Orders.
74. A perusal of the G.O.Ms.No.184 dated 29-5-1997 and 371
dated 19 -8-1997 disclose that the whole exercise of ascertaining the job
strength was made with a view to improve the roads of the State Highways and
also their continued maintenance. As far as the Highways are concerned, there
can be no two opinion that in the light of manifold increase in road traffic,
both light motor vehicles, as well as, heavy motor vehicles, there is imminent
need for not only improving the present road facilities provided, but also day
today maintenance of those Highways. Therefore, the attempt of the State
Government in making a study as to the job requirement on this aspect can
never be belittled as it was done in the interest of the public at large. In
that view, when the said G.O.Ms.No.184 dated 29-5-1997 is analysed, we find
that by virtue of the recommendations of the committee constituted as early as
in the year 1982, a creation of 10634 posts had been made long before the
issuance of the above said Government Orders. As on that date, when the above
said Government Order came to be issued out of 10634 posts, about 5575 posts
were lying vacant. As the earlier study was made for more than a decade
before, on a fresh look by the Highways Department, a further requirement of
4238 posts was noted and that is how the creation of 9813 posts came to be
made under G.O.Ms.No.184 dated 29-5-1997. In fact, as per the report of the
Committee of the year 1982, the requirement of Gang Mazdoors was fixed as two
Mazdoors for every 8 kms length of road. It was further stated that the
requirement of exemption for recruitment was needed inasmuch as, it was felt
that the recruitment has to be made from among the persons available along
side the highways in order to ensure that such persons attend to the road
maintenance without fail. In other words, the purport of granting the
exemption for recruitment through Employment Exchange was to rule out the
possibility of any person from any distant area seeking for employment by
virtue of the registration in the Employment Exchange and that such employment
if ultimately made may not serve the purpose as the person concerned may not
make himself available for maintenance of the road. Therefore, the whole
purport of granting exemption for the recruitment through Employment Exchange
was stated to be for ensuring the presence of the concerned Gang Mazdoor
throughout his service and that he really maintains the road in good condition
at all times and thereby the moment of the vehicular traffic is unaffected
under any contingencies. It was also noticed that such a move would enable
the local villagers to secure employment which would incidentally provide a
source of livelihood for such poor villagers. It was on that basis, the
necessary relaxation in the age limit from 30 to 35 in a uniform manner was
contemplated and came to be made. Thus, for the various reasons which weighed
with the State Government at the relevant point of time, the above said
G.O.Ms.No.18 4 dated 29-5-1997 and G.O.Ms.No.371 dated 19-8-1997 came to be
issued providing for the recruitment of 9813 Gang Mazdoors by granting the
required exemption to Rule 4 and 5(1) of the Special Rules for Basic Servants.
In such circumstances, we are of the view that the exemption so granted cannot
be held to be wholly arbitrary or unreasonable or came to be issued without
necessary power vested with the State Government.
75. In the above said circumstances, when the contention now
raised on behalf of the State is considered, we are constrained to state that
the State Government in its desperate attempt to sustain the wholesale
abolition of Gang Mazdoors, has taken the extreme stand of disowning its own
Government Orders which came to be issued after due deliberations with the
avowed object of not only providing employment to the needy, but also in the
larger interest of the general public. We are unable to refrain ourselves
from making such an observation also for the reason that such a ground was
never stated by the State Government when the subsequent G.O.Ms.No.160 dated
5-9-2002 came to be issued for abolition of the posts of Gang Mazdoors. In
G.O.Ms.No.160 dated 5-9-2002, the only reason given was that after the
recruitment of Gang Mazdoors, after the year 1997, the salary expenditure rose
to Rs.75 crores per year which additional expenditure can be avoided by
entrusting the job of road maintenance with private contractors by drawing a
scheme. While scrutinising the present G.O.Ms.No.160 dated 5-9-2002, by
which, the abolition of the posts of existing Government Orders came to be
made, we are unable to find any supporting material either in the reply
statement filed by the State Government before the State Administrative
Tribunal or before this Court as to what was the compelling constraints
vis-a-vis the imminent requirement of proper maintenance of the highways in
order to resort to total abolition of the existing Gang Mazdoors.
76. On this respect, when the reply statement filed by the
State Government before the Tribunal is perused, we only find the statistical
figures relating to the salary expenditure of Gang Mazdoors, as between the
year 1996-1997 to 2001-2002. It was attempted to point out that as the
expenditure was incurred by way of work charged establishments, the fund
allocated for such work charged establishments by virtue of the increase in
engagement of Gang Mazdoors in the year 1997 resulted in a substantial part of
the fund allocated to have been eaten away by way of salary payment alone. It
was pointed out that while the percentage of expenditure on materials
vis-a-vis, the establishment component was 52% in the year 1996-97, the same
got reduced to 11% in the year 2001-2002.
77. In the first place, it will have to be stated that it is
not the case of the respondent State that after 1996-97, there was any
subsequent increase in the recruitment of Gang Mazdoors and that that resulted
in payment of higher amount by way of salary and other allowances to the Gang
Mazdoors. In fact, that was not the case of any of the parties. Therefore,
the strength of the Gang Mazdoors made pursuant to G.O.Ms.No.184 dated
29-5-1997 and G.O.Ms.No.371 dated 19-8-1997 remained constant from 1996-97
onwards till the posts came to be abolished under G.O.Ms.No.160, dated
5-9-2002. If the raise in the salary component was due to spiralling prices
of the commodities and consequent revision of wages, for the high cost of
salary structure, the Gang Mazdoors cannot be blamed. It is not for us to
advise the State Government as to in what manner the requirement of materials
is to be met by way of making necessary fund allotment, but on that score it
can never be held that there was any lack of performance by the Gang Mazdoors
in the course of discharge of their duties or for that matter, their services
are to be dispensed with in an unceremonial manner as has been done by the
State Government under the G.O. Ms.No.160, dated 5-9-2002.
78. The sole contention of the State Government made before
the Tribunal was that the abolition of posts of Gang Mazdoors was a policy
decision of the State, and the same can never be questioned by any one
concerned. That apart no other valid reason was shown before the Tribunal for
abolishing the 9728 of Gang Mazdoors and depriving them of their source of
livelihood. It will have to be remembered that it is not the case of back
door entry of Gang Mazdoors into the service of the State. It is also not the
case that any appointment was made illegally which came to be subsequently
sought to be regularised by issuing certain Government Orders. The very
recruitment came to be made by issuing specified Government Orders and while
issuing the said Government Orders, every statutory requirement was noted and
wherever the exemption required the same was also issued, which exemptions
were also validly made by invoking the provisions providing for grant of such
exemptions. Therefore, we are unable to find fault with the manner of
recruitment of Government Mazdoors made in G.O.Ms.No.184 dated 29-5-1997 and
371 dated 19-8-1997.
79. It is of course submitted by the learned Advocate General
as well as Mr.A.L.Somayaji, learned senior counsel that the method of
selection of selecting the persons on the basis of draw of lots is unknown to
civil service jurisprudence and cannot be approved. Even though such a
contention may appear to be attractive, we do not think the State can take
advantage of such submissions made for the first time in course of the hearing
of the Writ Petitions in the High Court. It has to be remembered that though
the appointments through such method of selection had been made in the year
1997, the candidates, who had not been selected, apparently had no grievance
at that stage and the selection had not been challenged by any perso n at that
stage. Therefore, it is not open to the State to rake up such questions at
this stage as an answer to the contentions raised by the Writ Petitions.
80. The present attempt of the State Government to condemn
the above said Government Orders without any sound legal basis is alone to be
condemned. Such a stand of the State Government can never be allowed to be
canvassed as otherwise, there would be no consistency at all in the action of
the State Government in any of its welfare measures which were pursued in the
interest of the public at large. It is difficult to fathom the motive and the
logic of the manner in which the State Government seeks to attack the earlier
Government Orders of 199 7. We are unable to appreciate the stand now taken
by the State Government for the first time in these proceedings. It is not
known why such a stand was never put forth when the case was disposed of by
the State Administrative Tribunal. It can only be said that the State is
desperate in its attempt to sustain its G.O.Ms.No.160, dated 5-9-20 02 in
abolishing the 9728 posts of Gang Mazdoors. By the imprudent act of the State
Government, it may have to now shell out a substantial sum by way of back
wages alone to the Gang Mazdoors which would make a serious inroad into the
exchequer of the State.
81. So far as the decisions relied upon by Shri A.L.Somayaji,
learned senior counsel, it will have to be stated that all those decisions
came to be rendered in a different set of facts and circumstances and
therefore, those decisions will have no application to the facts of this case.
In the Judgment reported in “(1997)2 SCC 1 (cited supra), though Selection
Committee was constituted with one Dr.A.A.Mallick as Chairman to recruit 2250
Class III and Class IV employees on posts created to implement a scheme, the
said Dr.Mallick appeared to have taken advantage of the job entrusted to the
Selection Committee and appointed 6000 persons without any written orders of
appointment. While the sanctioned posts were only 2250, the Chairman of the
Selection Committee was not empowered to recruit 6000 employees. Therefore,
3750 employees recruited under the scheme was without any vacancies being
available. The Hon’ble Supreme Court has observed that the said Dr.Mallick
threw all the discretion to the winds and acted in a most arbitrary fashion
adopting the principle of “pick and choose” while recruiting 6000 employees,
in complete violation of the established norms and procedures for recruiting
Class III and Class IV employees. It was, in those circumstances, it was held
that the appointments of the whole lot of 6000 employees as made by Dr.Mallick
under the ‘ Tuberculosis Eradication Scheme under 20-Point Programme’ was ex
facie illegal. Therefore, the facts involved in that case has absolutely no
comparison to the facts involved here where the required step right from the
stage of ascertaining the need for employment, the strength required, the
vacancies available and the vacancies to be created were all done by following
necessary procedure. As held by us earlier, wherever exemptions were required
for fulfilling the object to be achieved, the same was also done by invoking
the relevant rules. Further, the whole process, right from the stage of
creation of posts, up to the stage of filling up of the posts was not carried
out at the behest of any single individual in order to state that there was
any malpractice in the matter of recruitment of Gang Mazdoors.
82. At the risk of repetition, it is required to be stated
that the State Government never put forth such a contention at any stage while
resisting the original applications before the State Administrative Tribunal.
83. As far as the Full Bench Judgment of the Kerala High
Court reported in “1973(2) LLJ 180” (cited supra), in the first place, the
Full Bench upheld the validity of the Rule 39 of the Kerala State and
Subordinate Service Rules which is analogous to Rule 48 of the Tamil Nadu
State and Subordinate Service Rules. The action of the State Government was
found to be unjustified as the said Government Order lacked in material
particulars, when a general exemption came to be made in respect of group of
individuals. The Full Bench had noted that while the Government sought to
restore the rank of all Assistants who joined the Secretariat between
17-12-1958 and 13-11-1963 and who were superseded by their Juniors for
promotion to Grade I for want of test qualification, it failed to prescribe
any time limit for the persons concerned to acquire the test qualification in
order to get promoted to Grade I so as to be eligible for the benefit of
restoration. Since such a vital aspect came to be omitted by the State
Government while issuing the Government Order, the Full Bench held that the
action of the State Government in the issuance of the said Government Order
cannot be sustained. In the facts and circumstances of the case where we have
discussed about the imminent need which necessitated the State Government to
grant necessary relaxation as regards Rule 4 and 5(i) of the Special Rules for
Basic Servants, we are unable to apply the above said decision of the Full
Bench of the Kerala High Court to the facts of this case.
84. As far as the judgment reported in “AIR 1992 SC 789”
(cited supra), in the light of what has been stated above, there is no scope
to characterise the recruitment of Gang Mazdoors involved in these Writ
Petitions as having been done in a clandestine manner. In fact, all the Gang
Mazdoors after their initial recruitments were placed on probation and were
also subsequently regularised by fixing them in appropriate time scale of pay.
Therefore, what is stated in the above stated Supreme Court judgment will not
apply to the facts of this case.
85. Since as there was no illegality in the recruitment of
Gang Mazdoors, the principles set out in para 17 of Judgment of the Hon’ble
Supreme Court reported in AIR 1966 SC 828 (cited supra) will also have no
application.
86. The Division Bench Judgment of our High Court reported in
2004 Wr.L.R.434 (cited supra) related to the termination of temporary
employees whose initial entry was unauthorised and who were not given job as
against any sanctioned posts. In the circumstances, the said judgment cannot
also be applied.
87. As far as the Judgment reported in “2004(3) CTC 549”
(cited supra), the Hon’ble Supreme Court was pleased to hold that the Court
will not exercise its discretion and quash an order which appears to be
illegal if its effect is to revive another illegal order. Inasmuch as, we
have held that the earlier G.O.Ms.No.184 dated 29-5-1997 as well as 371 dated
19-8-1997 were all valid orders, there would be every justification in setting
aside the present impugned G.O.Ms.No.160, dated 5-9-2002.
88. As far as the Division Bench Judgment reported in
“2002(4) CTC 385” (cited supra), we have narrated the scope and ambit of
consideration of G.O.Ms.No.86 dated 12-3-2001 which was considered by the
Division Bench of this Court, which was also upheld by the Hon’ble Supreme
Court. Having regard to the fact that the Hon’ble Supreme Court ultimately
found that neither statutory provisions nor the Constitution enables the State
Government to relax the Rule relating to recruitment being made through
Employment Exchange, the said Government Order was held to be a nullity. In
the case on hand, we have discussed at length about the validity of the
earlier G.O.Ms.No.184 dated 29-5-199 7 as well as 371 dated 19-8-1997 and the
exemptions granted therein by tracing the power to Rule 48 of the Tamilnadu
State and Subordinate Services Rules which enables the Government to grant
such exemptions. In such circumstances, there is no scope for applying the
above referred to Division Bench Judgment as well as the subsequent order of
the Hon’ble Supreme Court to the case on hand.
89. As a result of our above discussion, we conclude that the
very employment of all the Gang Mazdoors concerned in these Writ Petitions,
was in accordance with law and the relevant Government Orders,
viz.,G.O.Ms.No.184 dated 29-5-1997 and 371 dated 19-8-1997 were passed
inconsonance with law and therefore, there is no scope to hold that the very
employment was void as contended by the respondent State.
90. As far as the impugned order of the Tribunal is
concerned, the Tribunal proceeded solely on the footing that the abolition of
posts of Gang Mazdoors as has been done under G.O.Ms.No.160 dated 5-9-2002 was
a policy decision of the State a e, in the absence of any violation of any
constitutional or statutory provisions, there was no scope for interfering
with the said Government Orders. The Tribunal, never touched upon the
question as to the violation of the provisions of the Industrial Disputes Act
while dealing with the issue. The Tribunal was of the view that each of the
Gang Mazdoors should be paid a sum equivalent to six months salary to tie over
the unpredictable situation in which they were placed.
91. In the light of our conclusions, viz., that the abolition
of posts and the consequent termination was in violation of the provisions of
the Industrial Disputes Act, the conclusion of the Tribunal based on a
singular factor, namely, the policy decision of the State cannot stand. In
fact, in the judgment reported in (1976)2 SCC 844 (STATE OF HARYANA versus DES
RAJ), the Hon’ble Supreme Court has stated the legal position as under in para
7:
“7. Whether a post is to be retained or abolished is essentially a
matter for the Government to decide. As long as such decision of the
Government is taken in good faith, the same cannot be set aside by the Court.
It is open to the Court to go behind the wisdom of the decision and substitute
its own opinion for that of the government on the point as to whether a post
should or should not be abolished. The decision to abolish the post should,
however, as already mentioned be taken in good faith and be not used as a
cloak or pretence to terminate the services of the person holding that post.
In case it is found on consideration of the facts of a case that the abolition
of the post shall only a devise to terminate the services of an employee, the
abolition of the post would suffer from a serious infirmity and would be
liable to be set aside. …..”
92. Going by the above said dictum of the Hon’ble Supreme
Court and in the light of our conclusions made in the foregoing paragraphs,
there can be no two opinion that the impugned G.O.Ms.No.160, dated 5-9-2002
was not passed in good faith with proper application of mind and whole purport
of it was to simply terminate the services of Gang Mazdoors and therefore, the
said Government Order cannot be sustained.
93. This leads us to the other question, namely, as to what
should be the relief granted to the Gang Mazdoors? Inasmuch as, we have
concluded that the very G.O.Ms.No.160, dated 5-9-2002 abolishing the posts of
Gang Mazdoors was wholly illegal and invalid in law, the consequent orders of
termination issued to 9813 Gang Mazdoors are also liable to be set aside and
they are accordingly, set aside. The grounds which weighed with us for
interfering with the above referred to Government Orders, as well as, the
termination is the gross violation of the provisions of the Industrial
Disputes Act in the matter of termination orders inasmuch as we have held that
the Department of Highways in which, the Gang Mazdoors came to be engaged
would fall within the definition of “industry” under Section 2(j) of the
Industrial Disputes Act and that the Gang Mazdoors being “workmen” under the
provisions of the Industrial Disputes Act, in the light of Chapter V-B
relating to the procedure to be followed in the matter of retrenchment, the
action of the State in resorting to wholesale termination without following
the procedure prescribed under Chapter V-B would make the order of termination
non est in law. It is not only the failure of the respondent State in
following the procedure prescribed under Chapter V-B of the Industrial
Disputes Act, but also the requirement contained under Section 25-F of the
Industrial Disputes Act relating to retrenchment of an employee. As far as
the non-compliance of the above referred to provisions are concerned, there is
no dispute at all inasmuch, as the contention of the State was that there was
no requirement for complying with any of the provisions of the Industrial
Disputes Act. When once such non-compliance of the provisions of the
Industrial Disputes Act is not in controversy, the only other consequence
would be reinstatement of the affected employees back into the service with
all consequential benefits.
94. In this context, a few of the judgments of the Hon’ble
Supreme Court are required to be referred.
95. In the judgment reported in “1984(1) LLJ 110 (KARNATAKA
STATE ROAD TRANSPORT CORPORATION, BANGALORE versus SHEIKH ABDUL KHADER AND
OTHERS, ETC.)”, the Hon’ble Supreme Court held as under in para 13:-
“13. ….. Admittedly, the requirement of Section 25(F) of the
Industrial Disputes Act had not been complied with and in these cases.
Counsel for the appellant did not very appropriately dispute before us that
the necessary consequence of non-compliance of Section 25-F of the Disputes
Act in case where it applied made the order of termination void. The High
Court, in our opinion, has therefore, rightly come to the conclusion that in
these cases the order of retrenchment was bad and consequently it upheld the
Award of the Labour Court which set aside those orders and gave appropriate
relief. ……”
96. Again in the Judgment reported in “(1999)1 SCC 596 (LAL
MOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD. AND OTHERS)”,
the Hon’ble Supreme Court dealt with a case of an establishment to which,
Chapter V-B of the Industrial Disputes Act was applicable and since compliance
with the provisions of the said Chapter was not resorted to while effecting
the retrenchment, the Hon’ble Supreme Court taking note of Section 25(N) of
the Industrial Disputes Act which prescribed the conditions to retrenchment of
the workmen wherein, under Sub Section 7, it has been stated that where no
application for permission under sub Section (1) was made or where the
permission for retrenchment was refused, such retrenchment should be deemed to
be illegal from date on which, the notice of retrenchment was given to the
workmen and the workmen would be entitled to all the benefits as if no notice
had been given to them, held that the impugned notices on account of
non-compliance with Section 25(N) of the Act had no legal effect and were null
and void and the employer and employee relationship between the parties did
not get snapped and all the appellants, therefore, continued to be in the
service of the respondent despite such null and void notices.
97. Therefore, having regard to the blatant violation of the
provisions of the Industrial Disputes Act by the State Government itself who
should have acted as a model employer, we have no hesitation in holding that
in normal course all the employees would be entitled for not only
reinstatement, but with all back wages, continuity of service and all other
attendant benefits. In this context of granting the relief, one other factor
is also required to be stated. The said factor would only show that financial
constraints which was pleaded, though not established with acceptable
materials, was, not a real or genuine factor, which stood in the way of the
State Government in resorting to the wholesale dismissal.
98. Ms.R.Vaigai, learned counsel for the petitioners brought
to our notice certain actions of the State Government in the matter of
employment of about 15000 posts of Assistants and Junior Assistants in the
various departments of Secretariat, as well as, in the various departments in
different districts in temporary supernumerary posts by G.O.Ms.Nos.84 and 85
dated 4-7-2003, which temporary appointments were disbanded by issuing
Government Orders in G.O.Ms.No.263 dated 21-6-2 004. Consequent upon the
disbandment of various posts, the service of all the temporary Assistants and
Junior Assistants who were appointed on contract basis were terminated with
immediate effect. Surprisingly, by yet another Government Order in
G.O.Ms.No.290 dated 23-6-2004, the Government gave a direction that the orders
issued in G.O.Ms.No.263 dated 21-6-2004 stood cancelled. Viewed in the
background of the above Government Orders, we can only state that the stand of
the State Government with reference to G.O.Ms.No.184 dated 29-5-1997 and 371
dated 19-8-1997 is purely an after thought and a desperate attempt to sustain
its imprudent act of abolition of posts as was done under G.O.Ms.No.160 dated
5-9-2002. In fact, in one of the judgments of the Hon’ble Supreme Court
reported in “(1996)2 SCC 293 (CHIEF CONSERVATOR OF FORESTS AND ANOTHER versus
JAGANNATH MARUTI KONDHARE AND OTHERS), a desperate argument was put forth on
behalf of the State and the Hon’ble Supreme repelled the said argument in the
following words in para 28:
“28. Insofar as the financial strain on the State Exchequer is
concerned which submission is sought to be buttressed by Shri Dholakia by
stating that in the Forest Department itself the casual employees are about
1.4 lakhs and if all of them were to be regularised and paid at the rate
applicable to permanent workmen, the financial involvement would be in the
neighbourhood of Rs.300 crores -a very high figure indeed. We have not felt
inclined to bear in mind this contention of Shri Dholakia as the same as been
brought out almost from the hat. The argument relating to financial burden is
one of despair or in terrorem. We have neither been impressed by the first
nor frightened by the second inasmuch as we do not intend that the view to be
taken by us in these appeals should apply, proprio vigore, to all casual
labourers of the Forest Department or any other Department of the Government.”
(Emphasis added)
99. Therefore, on an over all analysis of the stand of the
State Government, we find that its various submissions are without any sound
basis and the challenge of the Gang Mazdoors to their orders of termination
being well justified, in normal course, there can be no other relief to the
said Gang Mazdoors except directing the respondent State to reinstate all of
them with continuity of service and all other attendant benefits and even full
back wages. Yet we have some hesitation regarding payment of full back wages,
not because we have any doubt regarding the illegality and imprudence of the
State’s a misadventure but because of the financial impact. The State was
obviously at fault and the individuals (albeit in thousands) were the hapless
victims. However, the difficult and delicate question remains- should the
entire burden be borne by the entire public of the State? It is obvious that
the State Government had made some alternate arrangements for maintenance of
roads by incurring certain expenditure. If the employees would be paid the
entire back wages, obviously, there would be huge burden on the public
exchequer. Even though the State Government is responsible for such a
situation and not the employees, having regard to the facts and circumstances
of the case, we feel interest of justice would be served by directing payment
of back wages for a period of six months, which would roughly be equivalent to
one fourth of the entire back wages, and ordered accordingly. We accordingly
direct the State Government to reinstate all the Gang Mazdoors, with
continuity of service , but with six months backwages.
100. In view of our above said direction to the State
Government, there is no scope or necessity to grant any relief in the Writ
Petition preferred by the State as against the order of the Tribunal directing
payment of six months wages by way of compensation. If by virtue of the
interim orders of this Court any payment had been made to the Gang Mazdoors,
the State is entitled to adjust the same while paying the back wages to them.
101. In the result, the Writ Petitions preferred on behalf of
the Gang Mazdoors are allowed and the Writ Petitions preferred by the
respondent State in W.P.Nos. 18507 of 2003, 18993 to 18998 of 2004, 19015 to
19030 of 2004, 19045, 19046, 19048, 21057 to 21059 of 2004 are dismissed.
102. No order as to costs.
103. Consequently, all connected W.P.M.Ps. are closed.
Index: Yes
Internet: Yes
suk
To
1. The Secretary,
Government of Tamilnadu,
Highways Department,
Secretariat, Chennai-9.
2. The Chief Engineer (General),
Highways, Chepauk, Chennai.
3. The Divisional Engineer (High Ways),
Pudukkottai.
4. The Registrar, Tamil Nadu Administrative Tribunal,
Chennai-101.