ORDER
K.P. Sivasubramaniam, J.
1. The ten petitioners in the above writ petition pray for a writ of certiorarfied mandamus to call for the records relating to the common award of the first respondent Labour Court, dated December 30, 1994, in the respective I.D. Numbers, to quash the same to the extent that it denies relief of reinstatement, and to direct the second respondent/union the reinstatement of the petitioners with full back-wages and other attendant benefits.
2. The petitioners claim that they were employed as salesmen by the second respondent/union in the year 1984. Though they were sponsored by the Employment Exchange and worked for about five years, without any reason the management orally terminated services of the petitioners on August 16, 1989. There was no charge memo for any enquiry and hence, the petitioners contend that the termination of their services was in gross violation of Section 25-F of the Industrial Disputes Act, 1947.
3. The claim of the petitioners was resisted by the management on the ground that they were part-time employees as they had only worked from 5 A.M. to 7 P.M. in the morning and 3.30 P.M. to 5.30 P.M. in the evening. In the year 1986, the system of distribution of milk through salesmen was abolished because of the numerous complaints. Therefore, the petitioners were not given employment from December 1, 1986. It is further contended on behalf of the management that the termination was only in the year 1986 and not in the year 1989 and that the disputes were belatedly raised only in the year 1990.
4. The Labour Court, after analysing the evidence, according to the petitioners, gave a categorical finding that they had worked continuously for 240 days per calendar year and that the management had not complied with the mandatory requirement under Section 25-F of the Industrial Disputes Act. However, even though the Labour Court found that the termination was improper, it held that compensation would be enough and awarded compensation of Rs. 4000/- only to each of the petitioners. Hence the above writ petition by the aggrieved workers.
5. The petitioners contend that the action of the management amounts to unfair labour practice.
6. In the counter filed by the management, it is contended that the respondent/Milk Producers’ Union was registered and established in the year 1982 with a view to ensure supply of fresh milk to the public in Krishnagiri, Dharmapuri and Hosur towns. In 1983, retail sales were made to the consumers on experimental basis. There were about 29 booths in Krishnagiri, 37 in Dharmapuri and 28 in Hosur. To man these booths, part-time workers were recruited. The booth normally functions from 5.00 A.M. to 7.00 A.M. and again from 3.30 P. M. to 5.50 P.M. It is further contended that one such booth was under the incharge of one salesman and the petitioners in the writ petition were appointed as part-time salesmen. It was made clear that their employment was only casual and they would be paid only on the basis of each day’s work.
7. It is further stated that the direct distribution system led to several malpractices. There were repeated complaints from the public. In order to satisfy the consumers, the union decided to introduce the distribution through agents and accordingly some time in September in 1986, applications were called for engagement of sales agents. It was decided to give preference to the salesmen who had already worked in the union. In fact, several salesmen were appointed as agents. The representation by the salesmen for continuous employment was sympathetically considered and it was decided to give employment to the salesmen who were recruited through Employment Exchange. As regards the salesmen who were engaged without reference to the Employment Exchange, it was decided to consider their case as and when the vacancies were available. In fact, a circular was issued in the said context and communicated to all the salesmen. The distribution through agents was introduced on December 1, 1986. The petitioners did not exercise their option for continuing in employment with the respondent-union. Right from December 1, 1986, the petitioners were working only under one or the other agents. The petitioners themselves had opted to work under the agents. Therefore, they (sic) cannot have any grievance against the respondent/union. It is further contended that though the agency system was introduced on December 1, 1986, the petitioners have erroneously complained to the Conciliation Officer as if their non-employment was only in the year 1990. The employment of the petitioners was only as casual workers. Therefore, their claim of uninterrupted service and for permanency was incorrect and without any basis. The petitioners were in fact given option to continue in the work, with the union, but they did not exercise the option. Therefore, the petitioners cannot claim any permanent status.
8. Sri N.G.R. Prasad, learned counsel appearing for the petitioners contends that the attitude of the respondent/union, engaging workers on casual basis, retaining them in service for several years and then all of a sudden, refuse to give employment to them amounted to unfair labour practice. In this case, the provisions of Section 25-F of the Industrial Disputes Act was not followed by the management. The contention raised by the respondent as if the union was running in loss and that, therefore, they cannot accommodate the workers is without any substance. Learned counsel relies on a recent press statement of the Hon’ble Minister concerned to the effect that the respondent-society had achieved a profit of Rs. 40 lakhs as could be seen from the newspapers, dated October 19, 2003.
9. Reliance is placed on the judgment of the Supreme Court in Deep Chandra v. State of Uttar Pradesh and another 2001-1- LLJ-742. Reference is made to the observation that when an employee is retrenched without following the procedure under Section 25-F of the Act, his services cannot be put to an end to without following the procedure under Section 25-F of the Act and that therefore, the Labour Court was correct in granting order for reinstatement and back-wages.
10. It is further contended on behalf of the petitioner that there were many other similarly placed employees as the petitioners and in Writ Petition No. 16392 of 1992, N.V. BALASUBRAMANIAN, J., by order, dated November 20, 1996, had ordered that those petitioners were entitled to be reinstated in terms of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act and they would be entitled to permanent status. In respect of another 115 employees also, the respondent/union had passed orders reinstating them. Therefore, there was no justification in keeping out the ten petitioners alone, which amounted to discrimination.
11. Sri V.K. Muthuswami, learned senior counsel for the respondent/milk supply union, however, contends that the employment of the petitioners was only casual in nature and that the very nature of their working would show that they were only part-time workers and not full-time employees. They were required to vend the milk in the booth only for about an hour or two in the morning and again in the evening. Therefore, the employment of the petitioners cannot be stated to be of a permanent nature nor can the respondents be directed to give them employment on par with permanent employees. It is further stated that the respondent/milk supply union was running at loss and therefore, to direct the union to employ the petitioners would result in heavy financial liability on the union. Reliance is placed on the judgment of A. KULSEKARAN, J., in Baskar R, and others v. Auto Care Centre, Chennai and another 2003-I-LLJ-700 (Mad). The petitioners in that case had been appointed as casual labourers and the Labour Court awarded only compensation instead of reinstatement. The learned Judge held that as the petitioners not being interested in working as casual labourers wanted to be appointed only as permanent workers, they were not eligible for reinstatement, although relief of reinstatement was normally available, in cases where the provisions of Section 25-F of the Act was not complied with.
12. I have considered the submissions of both sides.
13. As regards the contention that at present, the union is engaging employees only through agents, and hence the petitioners cannot be employed, I am inclined to hold that such a stand of the management cannot be accepted. Having appointed them earlier directly, it is not proper to deny them their rights and seek for employment of other persons through agents. It is not disputed that the petitioners had been engaged for not less than 4 or 5 years and, therefore, in terms of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, the petitioners are entitled to be reinstated in service as a matter of right. Even apart from the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, it is a settled proposition that the provisions of the Industrial Disputes Act will apply to temporary employees also and that in the event of non-compliance of Section 25-F of the Act, the Labour Court has no option except to direct reinstatement.
14. It is also not disputed that several other employees like the petitioners, nearly about 165 employees have been reinstated in view of the earlier orders of this Court in Writ Petition No. 16392 of 1992 and subsequent orders of the management. Therefore, there is no justification for denying employment only for the ten petitioners in this writ petition.
15. On the issue as to whether the respondent/management was running at a loss, the petitioner relies on the statement of the Hon’ble Minister as published in newspapers on October 19, 2003, to the effect that the respondent/management was functioning profitably and that for the current year, a profit of Rs. 40,00,000 have been earned. Though the said claim is disputed by the respondent, the current turn over has not been placed before this Court. Profit and Loss relating only to the previous years were furnished before this Court. Profit and loss account for the current period has not been furnished. Even assuming that the respondent/management was running at a loss that cannot be a justification for non-compliance of the provisions of Section 25-F of the Act, more so, considering that similarly placed employees have been reinstated in service.
16. As regards the contention of the learned senior counsel for the respondent that the petitioners cannot be absorbed as whole time employees of the Corporation, there can be no doubt over the proposition that the petitioners herein will be employed only in the same terms as they were working originally.
17. Having regard to the aforesaid facts and circumstances, the award of the Labour Court granting only Rs. 4,000 as compensation cannot be upheld. However, having regard to the fact that the petitioners/employees have not been discharging any duty after they were 5 terminated, they will not be entitled to back-wages.
18. With the result, I am inclined to allow the writ petition directing the second respondent to reinstate all the petitioners in service with effect from January 1, 2004 with all continuity of service. However, it is made clear that the petitioners will not be entitled to any arrears of salary from the date of termination till January 1, 2004. The writ petition is ordered subject to the above terms. No costs.
