BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14/09/2011
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.(MD)No.6248 of 2007
1. Tamil Nadu Water Supply and
Drainage Board,
through its Managing Director,
Tamil Nadu Water Supply and
Drainage Board,
Chepauk,
Chennai-600 005.
2. The Executive Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Presently at Thoothukudi,
Kovilpatti.
3. The Assistant Executive Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Division No.2,
Sivakasi. ..Petitioners
Vs
1. The Presiding Officer,
Labour Court,
Madurai.
2. S.Pushparaj ..Respondents.
Prayer
Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari calling for the records of the
first respondent relating to the impugned order dated 09.04.2007 made in
I.D.No.94/2007 and to quash the same.
!For Petitioner ... M/s.M.Ajmal Khan
^For Respondents ... M/s.V.O.S.Kalaiselvam
:ORDER
The petitioner challenges the award passed by the learned Labour Court,
ordering the re-instatement of second respondent with continuity of service, but
without back-wages.
2. The second respondent was appointed as Mazdoor on 25.06.1985, for 90
days on daily wage basis. Thereafter with intermittent break, the second
respondent was allowed to continue in service till 1990, when his service was
terminated.
3. The respondent No.2 filed a petition under Section 2(a)(3) of the
Industrial Disputes Act with a prayer to set aside the order of termination,
dated 30.06.1990, with consequential relief of re-instatement with full back-
wages and continuity of service. The last pay drawn by the second respondent is
Rs.510/-.
4. The case of the second respondent before the Labour Court, was that
even though respondent No.2 had rendered service from 01.07.1985 till
30.06.1990, while terminating his services, no retrenchment compensation or
opportunity of hearing was given.
5. It was also the case of the second respondent, that in the conciliation
proceedings, a decision was taken that the daily wage employees who had put in
more than 480 days of service in two calendar years will be confirmed in
service. The settlement was arrived at under Section 12(3) of the Industrial
Disputes Act.
6. The second respondent, claimed that having worked for more than 480
days in two calendar years,he was entitled to confirmation under statutory
settlement, and his service could not have been terminated, by treating him to
be a contractual or daily wage employee.
7. The petition filed by the second respondent, was contested by the
petitioner, by submitting that the second respondent worked only for 90 days in
terms of his appointment letter. Thereafter, fresh appointment was given to him
every time.
8. The respondent No.2 did not work for 480 days continuously in two
years, therefor he was neither entitled to claim confirmation, nor to any
relief against the order of termination from service. The service of the
second respondent was terminated in terms of the contract of service.
9. It was also the submitted that as the second respondent was a
contractual employee and his service was terminated as per the terms of the
contract,therefore, in view of Section 2(oo)(bb) of the Industrial Disputes Act,
it will not fall within the definition of retrenchment, thus no retrenchment
compensation was payable nor any notice was required to be issued. The
respondent No.2 was not entitled to benefit of Section 25-F of Industrial
Disputes Act..
10. In view of the stand taken by the petitioner, the learned Labour Court
framed the following issues:
a. Whether the statement of the petitioner that he has worked for a
period of more than 480 days is correct?
b. Whether the order of termination is to be set aside and he be
reinstated into his service?
C. Other reliefs eligible to the petitioner, if any?
11. The crucial issue therefore was issue No.1. In support of it, the
second respondent appeared in the witness box as P.W.1, and also produced
documentary evidence i.e., Ex.P1 to Ex.P10, which was duly marked.
12. However, the petitioner failed to lead any evidence in support of the
stand taken in reply to the claim petition.
13. On appreciation of oral and documentary evidence, and specially in
view of the fact, that it was proved that the second respondent had worked with
the petitioner from 01.07.1985 to 30.06.1990, a finding of fact,is recorded that
the second respondent had put in 480 days of service in two calendar years, and
was entitled to be confirmed, under statutory settlement and further that the
order of termination was in violation of Section 25-F of Industrial Disputes
Act.
14. Once it is not disputed that the second respondent was appointed with
intermittent breaks during the period of five years, then, no fault can be
found with the finding of the learned Labour Court holding, that the second
respondent is deemed to have worked continuously for 480 days in two calendar
years.
15. In any case, on admitted facts, the termination was in violation of
Section 25 of the Industrial Disputes Act, as the repeated appointment with
intermittent breaks for a regular work cannot be treated to be a contractual
appointment to attract the provisions of Section 2(oo)(bb) of the Industrial
Disputes Act.
16. The submission of the petitioner, that the delay of seven years in
raising a reference rendered it incompetent only deserves to be noticed to be
rejected, as delay in raising reference can be a ground to see whether back
wages can be granted or not. The learned Labour Court in this case did not
grant any back-wages to the second respondent. The mere delay in raising the
reference, cannot be a ground to set aside the award, in view of the settled
principle of law that there is no limitation for raising a reference, before the
learned Labour Court.
17. No ground is made out to interfere, with the well reasoned award of
the learned Labour Court.
18. No merit. Dismissed.
19. No costs.
vsn
To
The Presiding Officer,
Labour Court,
Madurai.
