BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25/07/2007
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
WRIT PETITION (MD) Nos.4304 of 2007
WRIT PETITION (MD) Nos.4305 to 4313, 4316 to 4325, 4326 to 4335, 4441 to 4450,
4451 to 4460, 5701 to 5707 of 2007
and
M.P.(MD)No.1 of 2007 in all the Writ Petitions for injunction
W.P.(MD)No.4304 of 2007
J.Pilavendra Thilagaraj .. Petitioner
vs.
The Management of
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Kumbakonam Region,
Rep. by its Managing Director,
Kumbakonam. .. Respondent
Writ Petition (MD) No.4304 of 2007 filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus directing the respondents to
re-employ the petitioner forthwith as Conductor in the existing vacancies as per
the Section 25-H of the I.D.Act and as per G.O.Ms.No.41 Transport (C.1)
Department dated 13.7.06 before appointing any new person as Conductor either by
direct recruitment or otherwise.
In WRIT PETITION (MD) Nos.4304 to 4313, 4316 to 4325, 4326 to 4335, 4441 to
4450, 4451 to 4460 of 2007
!For petitioner …. Mr. S.Arunachalam
^For respondent …. Mr. S.Singaravelan
W.P.(MD)No.5701 of 2007
C. Natarajan .. Petitioner
vs
1. The Secretary to
Government of Tamil Nadu,
Transport & Highways Dept.,
Fort St.George,
Chennai – 600 009.
2. The Managing Director,
Tamil Nadu State,
Transport Corporation Ltd.,
Madurai Division – III,
Madurai.
3. The General Manager, Tamil Nadu State, Transport Corporation Ltd., Madurai Division - III, Nagercoil. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus directing the respondents to appoint the petitioner for
the post of driver in the third respondent corporation based on the interview
conducted by the third respondent on 24.2.2007 as per the order passed in
W.P.No.36801 of 2005 dated 9.12.2005.
In W.P.(MD) Nos. 5701 to 5707 of 2007
For petitioners : Mr. Silambannan,
Senior Counsel
for Mr. C.T.Perumal
For respondents : Mr. R.Singaravelan
:COMMON ORDER
Heard Mr. S.Arunachalam, learned counsel for the petitioners in
W.P.(MD)Nos.4304 to 4313, 4316 to 4325, 4326 to 4335, 4441 to 4450, 4451 to
4460, and Mr. Silambannan, learned Senior Counsel for Mr. C.T.Perumal, learned
counsel for the petitioners in W.P.(MD)Nos.5701 to 5707 of 2007 and Mr.
R.Singaravelan taking notice for the respondents and have perused the records.
2. The prayer in the Writ Petitions represented by Mr.S.Arunachalam is for
a direction to the respondent to re-employ the petitioners forthwith as
Conductors in the existing vacancies as per Section 25-H of the I.D.Act and as
per G.O.Ms.No.41, Transport Department, dated 13.7.2006 before appointing any
new persons either by direct recruitment or otherwise.
3. The prayer in W.P.(MD)Nos.5701 of 2007 and batch cases is for a
direction to appoint the petitioners in the respondent Corporation on the
interview conducted by the third respondent and as per the order made in
W.P.(MD)No.36801 of 2005 dated 9.12.2005.
4. Insofar as the Writ Petitions represented by Mr. Silambannan, learned
Senior Counsel, it is seen that the petitioners were already called for an
interview and it is not known as to the result of the interviews. In the
meanwhile, they are seeking for implementation of the earlier Division Bench
Order dated 9.12.2005. If the case of the petitioners represented by the
learned Senior Counsel is already covered by the Division Bench Order, there is
no necessity for them to file any second Writ Petition. If they are called for
the interview for direct recruitment, then, they will have to wait for the
outcome of the said interview and can challenge selection of others or the non-
selection of the petitioners in appropriate proceedings. Therefore, the Writ
Petitions are misconceived.
5. In respect of the Writ Petitions represented by Mr.S.Arunachalam,
learned counsel, it must be stated that the petitioners cannot blow hot and
cold. On the one hand they cannot claim re-employment under section 25-H of the
I.D.Act and on the other hand, claim for any direct recruitment in terms of
G.O.Ms.No.41, Transport Department, dated 13.7.2006.
6. In any event, the nature of right projected by the petitioners
represented by the learned counsel has already been answered by this Court vide
judgment in K.Kumaran and others v. State of Tamil Nadu, rep. by its Secretary,
Transport Department, Chennai and others (2007) 3 MLJ 233 (rendered by me). In
paragraph 36 and 37, this Court after analysing various aspects of G.O.Ms.No.41,
Transport Department, dated 13.7.2006 and all the previous litigations and
orders passed relating to the said G.O., it was observed as under.
Para 36: “These two sub-paragraphs found in paragraphs 4(ii) and 4(iii) are
completely contrary to the preferential right carved out under Section 25-H of
the I.D.Act as interpreted by the Apex Court and therefore, these two paragraphs
viz., 4(ii) and 4(iii) of G.O.Ms.No.41, Transport Department, dated 13.7.2006,
which are sought to be enforced by the petitioners in these writ petitions and
several other writ petitions, had to be rejected for the following reasons:
(i) Right of re-employment under Section 25-H of the I.D.Act will have to be
determined only if an employee’s retrenchment comes within the definition of the
term ‘retrenchment’ found in Section 2(oo) of the I.D.Act and that it is not hit
by the exception found in sub-section (bb) introduced by Central Act 49 of 1984
with effect from 18.8.1984.
(ii) Further, the claims of workmen will have to be determined in terms of
paragraph 139(3)(b) of the order passed by the learned Judge in the batch of
cases, disposed on 14.12.2006, wherein the learned Judge clearly states that
only persons who are qualified under Section 25-F of the I.D.Act are eligible
for re-employment but it will not apply to persons, who have not actually worked
under the Corporation but made a bogus claim.
(iii) The workmen, who have approached this Court including the petitioners,
though made a false claim about the length of their service and by the impugned
order, the respondent-Corporation had taken a definite stand that they had
worked less than 20 days and 11 days that too, they had worked in vacancies due
to unforeseen circumstances like strike, festivals and large scale absenteeism,
are not eligible for an preferential treatment.
Para 37 “In view of the dispute over their claim, the said employees will have
to approach the appropriate Labour Court to establish the total number of days
worked by them and that their subsequent non-employment and their claim
preference for re-employment was guaranteed under Section 25-H of the I.D.Act.
It is for them to prove to the satisfaction of the Labour Court that they were
actually retrenched in terms of the main definition under Section 2(oo) of the
I.D.Act and not covered by the exception found under sub-section (bb) of Section
2(oo) of the I.D.Act.”
7. In the light of the same, it is for the petitioners to work out their
rights in terms of the orders passed by this Court. However, Mr. S.
Arunachalam, learned counsel submitted that the Trade Union of the petitioners
have already raised the dispute regarding their rights under the I.D.Act and it
is pending conciliation before different Conciliation Officers. Therefore, it
is for the petitioners to work out their rights in terms of the provisions of
the I.D.Act and not to come before this Court with relief based upon the some
apprehensions.
8. Therefore, all the Writ Petitions are misconceived and the same will
stand dismissed. No costs. Interim injunction already granted stands vacated
and consequently, Miscellaneous Petitions are closed.
asvm
To
1.The Managing Director,
The Management of
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Kumbakonam Region,
Kumbakonam.
2.The Secretary to
Government of Tamil Nadu,
Transport & Highways Dept.,
Fort St.George,
Chennai – 600 009.
3.The Managing Director,
Tamil Nadu State,
Transport Corporation Ltd.,
Madurai Division – III,
Madurai.
4. The General Manager,
Tamil Nadu State,
Transport Corporation Ltd.,
Madurai Division – III,
Nagercoil.