IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09..6..2008 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 9505 of 2003 L.I.C. Temporary Employees' Association Regn. No. 201/93 Rep. by the General Secretary 15 Filter Bed Road Vellore .. Petitioner Vs. 1. The Zonal Manager Life Insurance Corporation of India South Zone 102 Anna Salai Chennai 2 2. The Central Government Industrial Tribunal - cum Labour Court Rep. by the Presiding Officer Shastri Bhavan Chennai 3. The Regional Manager Life Insurance Corporation of India South Zone 102 Anna Salai Chennai - 2 .. Respondents Petition filed for issuance of writ of Certiorarified Mandamus calling for the records in I.D. No. 639/01 dated 21.10.2002 and quash the same and direct the respondents to appoint the members of the petitioner association in Class III and IV posts as the class may be on the basis of seniority. For Petitioner : Mr. R. Singaravelan For Respondents 1&3: M/s. Kempraj and Subbiah ORDER
Heard the arguments of Mr. R.Singaravelan, learned counsel appearing for the petitioner and M/s Kempraj and Subbiah learned counsel for the respondents 1 and 3 and perused the records.
2. This writ petition is directed against the Award dated 21.10.2002 passed by the Central Government Industrial Tribunal [for short, ‘C.G.I.T.’] in I.D. No. 639 of 2001. The Government of India, Ministry of Labour, by their order dated 20.7.1998, referred the dispute relating to reinstatement and regularisation of M.Panchatcharam and 162 other temporary employees, for adjudication by the Principal Labour Court, Chennai. The Labour Court took up the dispute as C. G. I. D. No. 20 of 1998. Subsequently, on formation of the Central Government Industrial Tribunal, the matter was transferred and taken on file as re-numbered I. D. No. 639 of 2001.
3. The employees who are now represented by the petitioner Association, had earlier filed a series of writ petitions before this Court in the name of Terminated Full Time Temporary LIC Employees’ Welfare Association, seeking for regularisation of their service on the basis that the respondent LIC was deliberately engaging employees on temporary basis thereby indulging in unfair labour practice and they are also entitled for the benefits of Sections 25F and 25H of the Industrial Disputes Act, 1947 [for short, ‘I.D. Act’]. All the matters came to be placed before a Full Bench of this Court in Terminated Full Time Temporary LIC Employees Welfare Association v. Senior Divisional Manager, L.I.C., Thanjavur [1993 (1) L.L.J. 1030]. The Full Bench, in paragraph 82 of the judgment laid down the following propositions of law:
Para 82: “By way of summing up, our conclusions are as follows:
(1) The Life Insurance Corporation (Staff) Regulations, 1960 are valid and the are applicable to the petitioners.
(2) The provisions of the Industrial Disputes Act are not applicable to the petitioners with reference to matters covered by Sec. 48(2C) of the L.I.C. Act.
(3) It is not proved that L.I.C. is guilty of unfair labour practice. It is open to the petitioners to raise the plea and prove it before the Central Government Industrial Tribunal, New Delhi, where a reference is already pending.
(4) Sec. 2(oo)(bb) of the Industrial Disputes Act is constitutionally valid.
(5) The petitioners are not retrenched employees as they are governed by Regn. 8 of the L.I.C. of India (Staff) Regulations.”
4. As against the decision of the Full Bench, one E.Prabhavathy, along with other employees, filed an appeal before the Supreme Court in S.L.P. (C) No. 10393 to 10413 of 1992. The Supreme Court, while disposing of those appeals by an order dated 23.10.1992, made the following observations:-
“The LIC was asked to work out a Scheme for the purposes of regularisation of employees who were granted ad hoc appointments for 85 days at intervals from time to time. The learned counsel for the LIC has placed before us a Scheme for regularisation of such ad hoc employees. We have given our anxious consideration to the Scheme proposed by the LIC and have also heard both Mr. Ramamurthy and Mr. Salve at length and we are of the opinion that the Scheme proposed by LIC is a reasonable one and commends acceptance, save and except the fact that the recruitment scheduled for November, 1992 will be postponed by not less than six weeks to enable the eligible ad hoc employees to compete with others for selection at the said recruitment. We are of the opinion that the relaxation granted to these ad hoc employees for having worked with the LIC in the past in the matter of age and qualification suffices. The further provision that if such an ad hoc employee has worked between 20th May, 1985 and till date for 85 days in any two consecutive calender years, is a reasonable stipulation for eligibility for regularisation. We are of the opinion, the Scheme is in consonance with the guidelines which we have laid down in paragraphs 43 to 49 of Piara Singh’s judgment. Mr. Salve, the learned counsel for the LIC, also informed us that in regard to future ad hoc appointments / regularisation the LIC is in the process of making a Scheme consistent with the guidelines laid down in Piara Singh’s case so that this devide of employment for 85 days which has not been approved may not be resorted to in future. The Scheme contained in Clauses (1) to (d) of paragraph 1, which is as under, is approved subject to the postponement of the recruitment scheduled in November, 1992 by at least six weeks and the LIC will proceed to regularise the employees eligible under the Scheme in accordance therewith.
Scheme:
(a) All those temporary employees who have worked for 85 days in any two consecutive calender years with the Life Insurance Corporation between 20th May, 1985 up till days and who conformed to the required eligibility criteria for regular recruitment on the dates of their initial temporary appointment will be permitted to complete for the next regular recruitment to be made by the Life Insurance Corporation after the regular recruitment for those posts currently scheduled for November, 1992;
(b) These candidates will be considered on their merits with all other candidates who may apply for such appointments, including those from the open market.
(c) These candidates will be given an age relaxation for applying for regular recruitment provided that they were eligible on the date of their first temporary appointment for securing regular appointment with the Life Insurance Corporation.
(d) If these candidates are otherwise eligible, they can apply for regular recruitment in the normal course.
This regularisation will, in the circumstances, be by selection for appointment. We make the above clauses of the Scheme a part of our order." 5. It was thereafter, the petitioner Association got registered at Vellore on 10.8.1993. The erstwhile Association, after finding that they will not be benefitted by the Scheme and also a reference was pending with regard to absorption of temporary employees who were employed after 20.5.1985 before the Central Government Labour Court at Delhi, intervened in the pending I.D. No. 27 of 1991. The C.G.I.T., New Delhi granted relief to the employees which was challenged before the Delhi High Court by the LIC. The said Award was quashed by the Delhi High Court in W.P. (C) No. 4346 of 2001 dated 15.4.2004 and the same is pending before the Division Bench in W.A. No. 678 of 2004. Therefore, the petitioner Association pursued their earlier case for which reference is pending before the Principal Labour Court in I.D. No. 20 of 1998. 6. Before the C.G.I.T, on behalf of the petitioner, three documents were filed and they were marked as Exs. W.1. to W.3 and on the side of the respondent Management, one document was filed, which was marked as Ex. M.1. No oral evidence was let in. While Ex. W.1 is an appointment order issued in favour of one Vasudevan and Ex. W.2 is an order given in favour of C.Kannaki. In none of the documents, the concerned employees had worked beyond 150 days. Ex. W.3 relates to one Shanmugam and he had worked only for 90 days. In all the cases, they are all employees engaged in the North Arcot District in the post of Assistants, Typists and Peons and in the appointment orders (proforma was marked as Ex. M.1), it was clearly stated in paragraph 10 as follows:-
“We wish to make it clear that the Corporation has already taken steps to fill up the regular vacancies and you are being appointed pending such recruitment and your appointment will continue only till such time the candidates selected for regular appointment are appointed or for 85 days whichever is earlier.”
7. As can be seen above, the petitioner Association and its members were simultaneously prosecuting their grievances before three forums viz., (i) in writ petitions filed under Article 226 of the Constitution of India covered by the Full Bench; (ii) Before the C. G. I. T., New Delhi in I.D. No. 27 of 1991; and (iii) in the present I.D., which was C.G.I.D. 20 / 1998 (re-numbered by the second respondent Tribunal as I.D. No. 639 of 2001). Even before the Tribunal, no attempt was taken to establish their credentials. Except by filing these documents, they have not attempted to summon any document and there was no oral evidence let in. The Tribunal, in its operative portion, rejected the reference and held as follows:-
“…. In that order of SLP the Hon’ble Supreme Court has not reversed the Full Bench judgment of the Madras High Court but has upheld the same. It is not disputed that in that order passed by the Supreme Court in that SLP the earlier two Awards passed by National Tribunal, Bombay have been merged and that dispute in respect of temporary employees of eight Unions and LIC and a compromise formula has been arrived at by way of a Scheme and it is for the temporary employees employed for the period between 21.5.1985 and 23.10.1992. So, under such circumstances, it cannot be said that these temporary employees can claim a right of appointment without going into any process of selection. It is not disputed that engagement of these temporary employees were purely on temporary basis and that too for the specific period. Only by reason of employment of 85 days or more, once cannot have a right for permanent employment or regularisation of service as claimed by the petitioner Union in this case. The Staff Regulation Section 8(2) come into play in such a situation. This aspect has been clearly dealt with by the Full Bench of the Madras High Court in the above cited decision. From that, it is seen that the Staff Regulation is of a statutory in character and the validity of the Staff Regulation and the validity of LIC Act itself has been upheld by the High Court as well as the Supreme Court. Under such circumstances, as correctly argued by the learned counsel for the Respondent / Management that there cannot be any vested right for the concerned temporary employees to demand a regularisation of service or reinstatement in service for a permanent employment. In the same Full Bench judgment of the Madras High Court, it has been clearly considered and held that the termination of the temporary appointment does not amount to retrenchment. It is not disputed that the Chairman of the Life Insurance Corporation of India has given instruction for recruitment of staff in the year 1992 itself. Without undergoing that procedure the concerned temporary workmen cannot ask for automatic absorption. Further, as per the order passed by the Supreme Court in the above cited SLP, which has been referred to by the Respondent / Management in this case, it limits its applicability to the persons employed during that period. That concession that has been extended for the persons employed during the earlier period cannot be extended to the present temporary employees concerned in this dispute, who are admittedly worked subsequent to 23.10.1985. Further they cannot get any preferential treatment. Under such circumstances, the question of reinstating them in service does not arise. In view of these findings, it can be held that the demand of the LIC Temporary Employees’ Association for reinstatement and regularisation of Sri M. Panchatcharam and 162 other temporary employees as per the enclosed list is not legal and justified. Hence, the concerned workmen are not entitled to any relief.”
8. The petitioners have not made out any case for setting aside their so-called termination and for absorption into regular employment. They have not pointed out any provision of law under which even a term based employee and who have put in less than 150 days of employment are eligible for absorption into regular employment. On the contrary, the petitioners have not only lost their case before this Court but the Supreme Court also refused to grant any relief beyond the scheme produced by the LIC and approved by the Supreme Court.
9. In view of the above discussion and there being no infirmity or illegality in the impugned Award passed by the second respondent Tribunal, the writ petition fails and accordingly, stands dismissed. However, the parties are allowed to bear their own costs.
Index : Yes 09..6..2008
Internet : Yes
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To
The Presiding Officer
The Central Government Industrial Tribunal
- cum Labour Court
Shastri Bhavan
Chennai
K. CHANDRU, J.
gri
Pre-Delivery Order in
W.P. No. 9505 of 2003
Delivered on
09..6..2008