{"id":265911,"date":"2004-09-08T00:00:00","date_gmt":"2004-09-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tamil-nadu-highways-roadways-vs-government-of-tamilnadu-on-8-september-2004"},"modified":"2018-08-03T19:14:41","modified_gmt":"2018-08-03T13:44:41","slug":"tamil-nadu-highways-roadways-vs-government-of-tamilnadu-on-8-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tamil-nadu-highways-roadways-vs-government-of-tamilnadu-on-8-september-2004","title":{"rendered":"Tamil Nadu Highways Roadways … vs Government Of Tamilnadu on 8 September, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Tamil Nadu Highways Roadways … vs Government Of Tamilnadu on 8 September, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED:08\/9\/2004\n\nCORAM:\n\nTHE HON'BLE MR.JUSTICE P.K.MISRA\nAND\nTHE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA\n\nW.P.NO. 16128 of 2003\nand\nW.P.NO. 16129 of 2003\n15273 OF 2000, 14917, 14918,  1516, 15167, 15205, 15206, 14661, 14666, 14912\nTO 14914,   14911, 14915, 14916, 15187, 15188, 15189, 15190, 19623,\n19647 TO 19649, 25006, 25007, 33706, 33702, 33703,\n33705, 33707, 33708, 33709, 33715, 36691, 16514,\n16508, 16509, 16513, 16515, 16524, 16526 TO 16529,\n16534 TO 16536, 22452, 22451, 23143, 23155, 24370,\n 25004, 22450,  36589, 26477 TO 26484, 22581, 31994,\n24682, 29843, 24284, 25060, 24758, 24759, 36363 TO 36365,\n18507 OF 2003; 440, 21063, 18507, 18993 TO 18998,\n19015 TO 19022, 19023 TO 19025, 19026 TO 19028,\n19029, 19030, 19045, 19046, 19048 AND\n21057 TO 21059 OF 2004\nW.P.No.16128 OF 2003:\n\nTamil Nadu Highways Roadways Employees' Association,\n(Regn.No.97\/2001), rep. by its General Secretary                ...  Petitioner\n\n-Vs-\n\n1. Government of Tamilnadu,\n    rep. by its Secretary,\n    Highways Department,\n    Secretariat, Chennai-9.\n\n2. The Chief Engineer (General),\n    Highways, Chepauk, Chennai.\n\n3. The Divisional Engineer (High Ways),\n    Pudukkottai.\n\n4.  The Registrar, Tamil Nadu Administrative Tribunal,\n     Chennai-101.                                       ..  Respondents\n\nFor Petitioners:       Ms. R.Vaigai\n                        Mrs.Nalini Chidambaram\n                        Mr.S.Silambanan\n                        Mr.S.M.Subramaniam\n                        Ms.M.Bharathi Mohan\n                        Mr.S.Saravanavasan\n                        Mr.M.Gnanasekar\n                        Mr.M.Ravi\n                        Mr.Arunachalam\n                        Mr.P.Mani\n                        Mr.R.Rengaramanujam\n                        Mr.G.R.Swaminathan\n                        Mr.S.Manikumar\n                        Mr.M.Muthappan\n                        Mr.V.Ravi\n                        Mr.G.Elanchezhian\n                        Mr.V.Illanchezhian\n\nFor Respondents:       Mr.N.R.Chandran,\n                        Advocate General\n                        assisted by\n                        Mr.A.L.Somayaji,  Senior Counsel\n                        Mr.D.Krishnakumar, Spl.G.P.\n\n        Prayer:  All these Writ Petitions were preferred under Article 226<\/a>  of\nthe  Constitution of India, praying for the issuance of Writ of Certiorarified\nMandamus, for the reliefs as stated therein respectively.\n\n:COMMON ORDER\n\nF.M.IBRAHIM KALIFULLA, J.\n<\/pre>\n
         In all these writ  petitions,  the  challenge  is  to  the
\ncommon  order  of  the  State  Administrative  Tribunal  dated  16.04.2003  in
\nO.A.Nos.5028 of 2002 etc., wherein the State  Administrative  Tribunal,  while
\nupholding  the abolition of Gang Mazdoors made under G.O.Ms.No.16 0 (Highways)
\ndated 05.09.2002, directed the State Government to pay a sum equivalent to six
\nmonths salary to each of the Gang Mazdoors, whether he had filed  an  Original
\nApplication before the Tribunal or not.\n<\/p>\n
         2.  The petitioners were represented by different counsel,
\nhowever  main  submissions were made by Ms.R.Vaigai, Ms.Nalini Chidambaram and
\nMr.S.M.Subramaniam,  whose  arguments  were  adopted  by  the  other   counsel
\nappearing for  various  other petitioners.  Submissions were made on behalf of
\nthe  respondent  State  by  the  learned  Advocate   General,   as   well   as
\nMr.A.L.Somayaji, the learned Senior counsel.\n<\/p>\n
         3.   In order to resolve the controversy involved in these
\nwrit petitions, the facts which lead to the ultimate abolition of the posts of
\nGang Mazdoor is required to be stated:\n<\/p>\n
        (a) In the services of the State Government  apart  from  the  regular
\nemployees  presently  in the services of the State, either as permanent, or on
\ntemporary basis, persons were employed on temporary basis in the Work  Charged
\nEstablishments for  execution of specific works and projects.  It is said that
\nsuch employees used to be disbanded on the completion of the  work  for  which
\nthey were  recruited.    It  is  also  stated  that  even if some projects are
\ncompleted, the personnel used to be engaged in some other projects and thereby
\nthe continuity of even such temporary engagement was continued.\n<\/p>\n
         (b) In the  Work  Charged  Establishment  also  the  employees  were
\ncategorized into   provincial   and  non-provincial.    While  the  provincial
\nemployees were fitted in the time scale of pay, the  non-provincial  employees
\nwere paid some fixed pay.  The above said practice was prevailing prior to the
\nyear 1977.\n<\/p>\n
        (c)  In  respect  of  such  provincialised and non-provincialised Work
\nCharged employees, there was a demand for  extending  various  other  benefits
\npayable  to  government  servants such as Leave, Retirement benefits etc., The
\nState  Government  after  considering  the  grievances  expressed  by  certain
\nassociations  representing  such  Work  Charged  employees  came  forward with
\nG.O.Ms.No.51 dated 14.01.1997, in and by which all Work Charged employees  who
\nwere  in  the pay scales of particular scale and above were brought to regular
\nestablishment and were allowed all the benefits that were payable  to  regular
\ngovernment servants.\n<\/p>\n
        (d) Similarly, non-provincialised Work Charged personnel on completion
\nof  five  years  of  continuous  service  were  also  brought  to  the regular
\nestablishment.  Simultaneously, the  Government  also  revoked  the  power  of
\nSuperintending  Engineers  in the P.W.D Highways and Rural Works Department to
\nrecruit employees for Work  Charged  establishments.    In  other  words,  the
\nGovernment  directed that the recruitment of Work Charged establishment should
\nbe stopped forthwith in all the Departments of the Government.\n<\/p>\n
        (e)  Further  the  Heads  of  Departments  were  requested  to  submit
\nnecessary proposals to the Government for creation of adequate number of posts
\nrequired   for   absorbing   the   existing  non-provincialised  Work  Charged
\nestablishment presently who had by then completed five years of service as  on
\n01.01.1977.   Similar  such  directions  were  given  to  submit proposals for
\ncreation of adequate number of  posts  for  absorbing  the  non-provincialised
\nworkers  in  the regular establishment as and when they complete five years of
\nservices on 1st January of the respective years.\n<\/p>\n
        (f)  In  G.O.Ms.No.406  (Transport)  dated   23.02.1987,   the   State
\nGovernment  passed  orders to the effect that 10,634 Gang Mazdoor posts should
\nbe created  and  such  posts  should  be  made  permanent.    However,  in  G.
\nO.Ms.No.815 dated 05.06.1992, the State Government imposed a ban on filling up
\nof the posts of Gang Mazdoors.\n<\/p>\n
        (g) In the year 1996, at the instance of the Honourable Chief Minister
\nan  assessment  was  made  as  to  the requirement of the total number of Gang
\nMazdoors depending upon the total length of roads  to  be  maintained  in  the
\nState Governments   of   Tamilnadu.    In  pursuance  of  the  said  exercise,
\nG.O.Ms.No.184 dated 29.05.1997 came to be issued, in which the total number of
\nposts of Gang Mazdoors required for different Departments  such  as  Highways,
\nNational  Highways,  National  Highway No.45 and certain other Departments was
\nassessed at a level of 14,872.  In the very same Government Order,  the  total
\nnumber  of  such  posts that had been filled up as on that date was arrived at
\n5,559.  The remaining posts to be filled was calculated at 9,813.\n<\/p>\n
        (h) In  the  said  Government  Order,  while  arriving  at  the  total
\nrequirements  of  14,872,  the State Government took note of the creation of 1
\n0,634 posts in G.O.Ms.No.406 dated 23.02.1987 and also  the  number  of  posts
\nfilled up out of the 10,634 which remained at 5,575 and it was therefore, held
\nthat  while  9,813  posts  were  required,  since  5,575  posts  were  already
\navailable, it was decided to create additional posts to the extent of 4,238.\n<\/p>\n
        (i) In order to fill up the  above  said  posts  the  ban  imposed  in
\nG.O.Ms.No.815 dated  05.06.1992 was also removed.  It is further stated in the
\nsaid Government Order  that  such  of  those  Gang  Mazdoors  who  are  to  be
\nrecruited,  the  first year of their employment would be treated as a training
\nperiod on a consolidated pay of Rs.1,500\/- and from the second  year  onwards,
\nthey would be fitted in the concerned scale of pay.\n<\/p>\n
        (j)  The  additional  financial  liability  from  the year 1997-98 was
\ndetermined at a sum of Rs.15 crores and the necessary allotment of  funds  was
\nalso made.    Subsequent  to  the  issuance of G.O.Ms.No.184 dated 29.05.1997,
\nunder G.O.Ms.371 dated 19.08.1997 what  ever  further  requirements  and  the
\nprocedures  to  be followed as well as relaxations to be given in the relevant
\nrules were also made.\n<\/p>\n
        (k) In G.O.Ms.No.371 dated 19.08.1997, the relevant factors were that
\nthe age limit was uniformly fixed at 35 for all  categories,  while  directing
\nthe application  of  Rule  of Reservation.  Yet another significant factor was
\nthat the concerned Divisional Engineers were allowed to make  the  recruitment
\nwithout the  aid  of the Employment Exchange.  They were allowed to select the
\npersons on 1 :  3 basis and select  the  ultimate  appointee  by  lot  system.
\nNecessary  relaxations in the age as required under Rule 5(1) of the Tamilnadu
\nBasic Servant Rules and also Rule 48 of the Tamilnadu  State  and  Subordinate
\nService  Rules under which the general requirements of calling for application
\nthrough Employment Exchange was exempted.\n<\/p>\n
        (l) Pursuant to the above said  G.O.Ms.No.184  dated  29.05.1997  and
\nG.O.Ms.No.371  dated 19.08.1997, the employees recruited for the posts of Gang
\nMazdoors were issued with the orders of appointment which stipulated that they
\nwould be given training for a period of one year  on  a  consolidated  pay  of
\nRs.1,500\/-,  that  if  they fail to maintain the roads properly their services
\nwould be terminated during the training period itself and that such  temporary
\nengagement cannot  be  the basis for claiming regular employment.  However, it
\nis not in dispute that all such Gang Mazdoors who were recruited and appointed
\non the above basis came to be regularized in their  respective  employment  on
\ncompletion of  one  year of service.  Further on such regularization they were
\nalso fitted in the scale of pay with the basic  pay  of  Rs.2,550\/-  Necessary
\norders  confirming  the  completion of probation period was also issued to the
\nrespective employees.   (m)  Thus  such  of  those  Gang  Mazdoors  who   were
\nrecruited   pursuant   to   the   above  G.O.Ms.No.184  dated  29.05.1997  and
\nG.O.Ms.No.371 dated  19.08.1997  were  regularized  in  the  services  of  the
\nrespective Departments  had  become  the regular employees of the State.  They
\nwere working as such till the issuance of G.O.Ms.No.160 dated 05.09.2002 when
\nthe State Government took a decision to abolish such of  those  Gang  Mazdoors
\nwho  were  recruited  on  lot  basis  after  1997,  the  number  of  which was
\nascertained as 9,728 and the posts were abolished.    It  was  also  mentioned
\ntherein  that  such  of  those  posts in which Gang Mazdoors were working even
\nprior to the year 1997 can be reduced as and when such employees  retire  from
\nthe services.   Pursuant to the issuance of the G.O.Ms.No.160 dated 05.09.2002
\nall the 9758 Gang Mazdoors were issued with stereo typed orders of termination
\ndated 07.09.2002 and the termination was to take effect from the afternoon  of
\n07.09.2002.\n<\/p>\n
       (n)  Challenging  the  said  orders  of  termination  several Original
\nApplications  were  filed  before  the  State   Administrative   Tribunal   in
\nO.A.Nos.5028  of  2002  etc.,  in  which  the common impugned order came to be
\npassed on 16.04.2003.  Challenging the above said  orders,  the  present  writ
\npetitions have been filed.\n<\/p>\n
        (o)  The connected Writ Petitions have been filed by the Government of
\nTamilnadu against the direction of the Tribunal directing the State Government
\nto pay sum equivalent to six months’ salary to each of the Gang Mazdoors.\n<\/p>\n
         4.  Ms.R.Vaigai, in her submissions,  contended  that  the
\naction  of  the  respondent\/State  in  abolishing the post of Gang Mazdoor was
\nwholly arbitrary and unreasonable, violating Article 14<\/a> of the Constitution of
\nIndia; that the consequent termination order pursuant  to  the  abolition  was
\nresorted  to in violation of the provisions of the Industrial Disputes Act<\/a> and
\nthat the order of the Tribunal in not  adverting  to  such  serious  violation
\nwhile passing  the  impugned  order  was therefore liable to be set aside.  In
\nanswer to Writ Petitions of the State, it was further contended that by virtue
\nof Rule 38 and 43 of the Pension Rules, inasmuch as the various Gang  Mazdoors
\nwere  entitled for pension as well as gratuity, even the amended prayer of the
\nrespondent in their writ petition cannot also be considered.\n<\/p>\n
         5.  Based on the provisions  of  the  Industrial  Disputes
\nAct<\/a>,  the  learned  counsel  contended  that the activities of the Department,
\nnamely the “Highways Road Maintenance” would fall within Section 2(m)<\/a>  of  the
\nFactories  Act  and consequently, by virtue of the total strength of employees
\nemployed in each Division of that Department, the application of Chapter V (B)
\nof the Industrial Disputes Act was imperative and therefore,  the  failure  to
\nfollow  the statutory requirements would render the termination orders invalid
\nin law.  The learned counsel sought to make a distinction as between sovereign
\nfunction of the State and the Industrial activity also managed by  the  State,
\nto  contend  that  there  was no scope for the State Government to exclude the
\napplication of the provisions of the Industrial Disputes Act<\/a> to  the  case  on
\nhand on  the  ground  of  sovereign  function of the state.  In support of her
\nsubmissions, she placed reliance upon the judgments reported in  “(1999)1  SCC
\n596  (LAL  MOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD., AND
\nOTHERS); (2000)3 SCC 224 (MUNICIPAL CORPORATION OF DELHI versus FEMALE WORKERS
\n(MUSTER ROLL) AND ANOTHER); 20  04(4)  2  LLJ  213,  (1996)2  SCC  293  (CHIEF
\nCONSERVATOR  OF  FORESTS  AND  ANOTHER  versus  JAGANNATH MARUTHI KONDHARE AND
\nOTHERS); (1983)2 SCC 217 (AJIT SINGH AND  OTHERS  v.    STATE  OF  PUNJAB  AND
\nANOTHER<\/a>) ,  (2002)10  SCC 432(U.T.  CHANDIGARH & OTHERS versus AVTAR SINGH AND
\nOTHERS) and (20 04)2  SCC  510  (UNION  OF  INDIA  versus  NAVEEN  JINDAL  AND
\nANOTHER)”.\n<\/p>\n
         6.   Mr.S.M.Subramaniam, learned counsel appearing for the
\npetitioners in W.P.No.33706 of 2003 contended  that  when  relaxation  of  the
\nSpecial  Rules were made by invoking Rule 48 of the general rules while making
\nthe appointment of Gang Mazdoors such an action was consciously  made  by  the
\nState  Government at the relevant point of time by taking into account all the
\nrelevant circumstances, it cannot be now permitted to turn around and  contend
\nthat there  was  irregularity  in such appointments.  The learned counsel also
\ncontended that at the time when the termination orders were issued it was  not
\nthe  case  of  the  State that such termination orders were resorted to on the
\nground that their entry into services was irregular.  He also pointed out that
\nsuch a ground was never stated in the  order  of  termination.    The  learned
\ncounsel  would  state that the present stand of the respondent\/ state in their
\nadditional grounds was purely an after-thought and  the  same  should  not  be
\ncountenanced.\n<\/p>\n
         7.    Ms.Nalini  Chidambaram the learned counsel appearing
\nfor the petitioner in W.P.No.14917 and 14918 of 2003 etc., contended that  the
\nGovernment Order abolishing the post of Gang Mazdoors was wholly arbitrary and
\nthat it  suffered form the vice of unreasonableness.  According to the learned
\nSenior Counsel the abolition was also tainted with mala fides.\n<\/p>\n
         8.  As  against  the  above  submissions  of  the  learned
\ncounsel  for  the  petitioners,  the  learned  Advocate General formulated his
\nsubmissions on five grounds, namely that the attack of the impugned orders  of
\ntermination  was never made on the basis of violation of the provisions of the
\nIndustrial Disputes Act<\/a>, though such a contention was in fact  raised  in  the
\noriginal application.   It was then contended that such a contention could not
\nhave been dealt with  by  the  State  Administrative  Tribunal  as  it  lacked
\njurisdiction.   According  to the learned Advocate General in view of the said
\nlegal position, no fault can be found with the order of the Tribunal  on  that
\nscore.\n<\/p>\n
                9.   Secondly,  it  was  contended  that  even assuming such a
\nground could  be  raised  in  the  Original  Applications  or  in  these  writ
\npetitions,  inasmuch  as  Highways  Department  of the State Government is the
\nsovereign function of the State, it  would  be  outside  the  purview  of  the
\nprovisions of  the  Industrial  Disputes  Act<\/a>.  Thirdly, it was contended that
\neven if the activities of the Highways are construed as an industry, the order
\nof termination due to abolition of posts will not attract  the  provisions  of
\nthe Industrial Disputes Act<\/a>. Fourthly, it was contended that the abolition of
\nposts was justified for the reasons which weighed with the Government.  It was
\nlastly  contended  that when the Tribunal held that the policy of the State in
\nabolishing the post of Gang Mazdoor was justified, the award  of  compensation
\nfor payment of six months salary was highly excessive.\n<\/p>\n
                10.   On  the question of jurisdiction of the Tribunal to deal
\nwith the issue touching upon the violation of the provisions of the Industrial
\nDisputes Act<\/a>, the learned Advocate General relied upon the judgments  reported
\nin  “(1995)5  SCC 75(THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION & ANOTHER,
\nETC.  versus KRISHNA KANT, ETC.) and (2001)9 SCC 526  (COUNCIL  OF  SCIENTIFIC
\nAND  INDUSTRIAL  RESEARCH  AND  ANOTHER  versus  PADMA RAVINDRANATH (SMT.) AND
\nOTHERS) and also 2002(3) ATC 629″, as well as the judgments reported  in  1991
\nWLR 699   (INDIAN   BANK,   REP.    BY  ITS  ASSISTANT  MANAGER  versus  R,.S.
\nTHIRUVENGADAM) and (2004)4 SCC 268 (U.P.STATE BRIDGE  CORPORATION  LTD.    AND
\nOTHERS versus  U.P.RAJYA  SETU  NIGAM  S.KARAMCHARI  SANGH) .  On the question
\nrelating to the sovereign function of the State the learned  Advocate  General
\ncontended   that   the  Gang  Mazdoors  failed  to  discharge  their  onus  of
\nestablishing that the respondent was carrying on an industry and that  it  did
\nnot form  part  of  sovereign functions of the State.  He also relied upon the
\njudgments reported in ” 1988  LIC  690(EXECUTIVE  ENGINEER,  NATIONAL  HIGHWAY
\nDIVISION,  BALASORE  AND  OTHERS  versus REGIONAL PROVIDENT FUND COMMISSIONER,
\nBHUBANESWAR), 1973 LIC 553 (SUPERINTENDING ENGINEER, NATIONAL HIGHWAY PROJECT,
\nBHUBANESWAR versus BAIDHAR LENKA AND  ANOTHER),  (2001)9  SCC  713  (STATE  OF
\nGUJARAT AND OTHERS versus PRATAMSINGH NARSINGH PARMAR)”.\n<\/p>\n
                11.  The learned Advocate General sought to make a distinction
\nas between the functional abolition of the very activity when compared to mere
\nabolition of  work.    In support of his submissions, reliance was placed upon
\nthe judgment reported in AIR 1982 SC 1107 (K.    RAJENDRAN  AND  OTHERS,  ETC.
\nversus STATE  OF  TAMIL NADU).  Further by referring to the various Government
\nOrders right from G.O.Ms.No.51  dated  1.02.1977  up  to  G.O.Ms.No.371  dated
\n19.08.1997,  the  learned  Advocate General contended that G.O.Ms.No.371 dated
\n19.08.1997 in relaxing the various requirements  of  the  Subordinate  Service
\nRules,  as  well  as,  the  special  rules being illegal, in every respect, by
\ninterfering with the order of  termination  of  the  Gang  Mazdoors,  such  an
\nillegality should  not  be  restored.    He  placed reliance upon the decision
\nreported in 2002(4) CTC 385.  It was then  contended  that  Gang  Mazdoors  by
\nvirtue   of   their   orders  of  appointment  as  well  as  their  subsequent
\nregularisation, were only holding temporary posts and therefore, even applying
\nSection 3 8 of the Pension Rules, it can not be held that the abolition  would
\nget  vitiated, inasmuch as Section 38<\/a> only contemplate three months notice and
\nnothing more.  Reliance was placed upon the judgment reported in AIR  1996  SC
\n2228 (STATE OF MAHARASHTRA versus PURUSHOTTAM AND OTHERS).\n<\/p>\n
                12.   Mr.A.L.Somayaji,  the  learned  Senior  counsel who also
\nappeared for the State placed heavy reliance upon the Full Bench  decision  of
\nthe  Punjab  and  Haryana  High  Court, reported in “1983(1) LLJ 309 (STATE OF
\nPUNJAB versus KULDIP SINGH AND ANOTHER)” and  contended  that  in  respect  of
\nessential  services of the State, which does not involve any Trade or Business
\nor even an analogous activity, the provisions of the Industrial  Disputes  Act<\/a>
\ncannot be  invoked.   According to the learned Senior counsel, even if it were
\nto be held that the provisions of the Industrial Disputes Act<\/a> gets  attracted,
\nthe  remedy should have been availed before the appropriate adjudicatory forum
\ncreated under the provisions of the Industrial Disputes Act<\/a> and not under  the
\nState Administrative Tribunal.  The learned senior counsel also contended that
\nwhen  the  initial  induction  of the Gang Mazdoors was contrary to the rules,
\naccepting their claim would result in an illegality  being  given  a  seal  of
\napproval, or  restoration  of an illegal action which should not be made.  The
\nlearned counsel placed reliance upon the judgment reported in “(1997)2  SCC  1
\n(ASWANI KUMAR AND OTHERS versus STATE OF BIHAR AND OTHERS)”.\n<\/p>\n
                13.   The  learned  Senior Counsel also attempted to point out
\nthat G.  O.Ms.NO.371 dated 19.05.1997 was contrary to the rules  framed  under
\nArticle  309<\/a>  of  the  Constitution  which  was  not  an  acceptable system of
\nselection and furthermore, the exemption of Employment Exchange Rule  was  not
\nmade prior to the paper publication calling for the applications.  It was also
\ncontended  that  based on Rule 48 of the Tamilnadu State and Subordinate Rules
\nan erroneous relaxation of Rules 4 & 5 could not have been made.  The  learned
\nSenior  Counsel therefore contended that the original appointment itself was a
\nnullity and therefore consequently, such an illegal appointment can  never  be
\nrestored.  Reliance was placed upon the decisions reported in 1973 (2) LLJ 180
\n(T.C.  SREEDHARAN PILLAI versus STATE OF KERALA AND OTHERS), AIR 1992 SC 789 (
\nDELHI  DEVELOPMENT  HORTICULTURE EMPLOYEES’ UNION versus DELHI ADMINISTRATION,
\nDELHI AND OTHERS); AIR 1966 SC 828 (GADDE VENKATESWARA RAO  versus  GOVERNMENT
\nOF  ANDHRA PRADESH AND OTHERS); 2004 WLR 434 2004 Wr.L.R.4 34 (UNION OF INDIA,
\nUNION TERRITORY OF PONDICHERRY, REP.  BY THE CHIEF SECRETARY TO GOVT.  AND TWO
\nOTHERS versus ILANGO, ETC.,) and 2004(3) CTC 549(STATE OF UTTARANCHAL, THROUGH
\nCOLLECTOR, DEHRADUN AND ANOTHER versus  AJIT  SINGH  BHOLA  AND  ANOTHER)  and
\n2002(4) CTC   385   (L.      JUSTINE  AND  ANOTHER  versus  THE  REGISTRAR  OF
\nCOOP.SOCIETIES, CHENNAI AND TWO OTHERS).\n<\/p>\n
                14.  Having heard  the  learned  counsel  for  the  respective
\nparties  and  on an analysis of the various materials placed before us, we are
\nof the considered view that the following relevant questions are  required  to
\nbe determined, viz.,
\n        “1.   Whether  the  Administrative  Tribunal  could have gone into the
\nquestion as to the violation of the provisions of the Industrial Disputes  Act<\/a>
\nwhile considering the order of termination of the “Gang Mazdoors”?\n<\/p>\n
        2.   Whether  in these Writ Petitions, this Court exercising its power
\nunder Article 226<\/a> of the Constitution, can examine the  noncompliance  of  the
\nprovisions of the Industrial Disputes Act<\/a>?\n<\/p>\n
        3.    If   there  is  scope  for  examining  the  question  posed  for
\nconsideration in points 1 and 2, whether at all the  Industrial  Disputes  Act<\/a>
\nwould  be applicable to the establishment, viz., the Department of Highways of
\nthe State of Tamil Nadu and consequently to the “Gang Mazdoors”?\n<\/p>\n
        4.  If it were to be held that Industrial Disputes Act<\/a> is  applicable,
\nwas  there any violation of the provisions of the Industrial Disputes Act<\/a>, and
\nif so, what is the relief to be granted?”\n<\/p>\n
        5.  Whether the impugned order of the  State  Administrative  Tribunal
\ncan be legally sustained?\n<\/p>\n
                Apart  from  the  above  questionss,  one  another  additional
\nquestion now raised on behalf of the State, is,
\n        “Whether the very employment of all the “Gang Mazdoors”  concerned  in
\nthese  Writ Petitions, was in accordance with law or such employment should be
\nheld to be void and consequently no relief can be granted to any of them?”\n<\/p>\n
                15.  This  additional  question  came  to  be  raised  at  the
\ninstance of  the  State.    According  to  Thiru  A.L.Somayaji, learned senior
\ncounsel, the issuance of  G.O.Ms.No.184  dated  29-5-1997,  and  G.O.Ms.No.371
\ndated 19-8-1998 granting relaxation of age limit as well as the requirement of
\nsponsorship  through Employment Exchange was illegal and further the direction
\nin G.O.Ms.No.371 to make the ultimate selection by lots can never be approved.
\nThe learned senior counsel, therefore, contended that when the whole selection
\nand appointment of “Gang Mazdoors” was in  contravention  of  the  Tamil  Nadu
\nState  and  Subordinate  Service Rules, such appointments were avoid ab initio
\nand therefore, restoration of such appointments would only result in  judicial
\nforum approving of an illegal action.\n<\/p>\n
                16.  On taking up the various questions involved, in the first
\nplace,  the  learned  Advocate  General, contended that the laying of roads as
\nwell as maintenance of it is a sovereign function of the state and  therefore,
\nthe application of the provisions of the Industrial Disputes Act<\/a> was ruled out
\nand that in any event, the State Administrative Tribunal in its limited sphere
\nof its  jurisdiction  was not competent to examine the said question.  In this
\ncontext, a reference was made to Section 28 of the Administrative  Tribu  nals
\nAct, 1985, which is to the following effect:\n<\/p>\n
        “Sec.28.  Exclusion of jurisdiction of courts except the Supreme Court
\nunder Article 136<\/a> of the Constitution:-\n<\/p>\n
On and from the date from which any jurisdiction, powers and authority becomes
\nexercisable  under  this  Act  by  a  Tribunal  in relation to recruitment and
\nmatters concerning recruitment to any  Service  or  post  or  service  matters
\nconcerning members of any Service of persons appointed to any Service or post,
\n(no court except,-\n<\/p>\n
        (a) the Supreme Court; or\n<\/p>\n
        (b)   any   Industrial  Tribunal,  Labour  Court  or  other  authority
\nconstituted under the Industrial Disputes Act<\/a>, 1947 (14 of 1947) or any  other
\ncorresponding law for the time being in force,
\nshall  have), or be entitled to exercise any jurisdiction, powers or authority
\nin relation to such recruitment or matters concerning such recruitment or such
\nservice matters.”\n<\/p>\n
                17.  This question was considered  by  various  Administrative
\nTribunals  functioning  in  different  states and conflicting views came to be
\nexpressed by different Benches.  Ultimately that question came to be  referred
\nbefore   a   Five   Member  Bench  whose  order  is  reported  in  “(1990)  14
\nAdministrative Tribunal Cases 914 (A.PADMAVALLLEY AND  OTHERS  versus  CPWD)”.
\nThe larger Bench of the Central Administrative Tribunal framed as many as four
\nissues  for  determination and for our present purpose, it would be suffice to
\nrefer to first two issues, viz.,
\n        “1.  Whether the CAT has concurrent jurisdiction with  the  Industrial
\nTribunal\/Labour  Court  on the ground that it became a substitute not only for
\nall Courts including the High Court  but  for  all  Tribunals  in  respect  of
\nservice  matters and whether it is left to the workman to choose the forum for
\nredressal of the grievance in respect of rights conferred under the Industrial
\nDisputes Act<\/a>.\n<\/p>\n
        “2.  Whether in the event of the first issue  being  answered  in  the
\nnegative,  the  Administrative  Tribunal  in  exercise  of powers analogous to
\nArticles 226 and 227, Constitution of India,  is  competent  to  entertain  or
\nconsider   applications  in  respect  of  disputes\/claims  arising  under  the
\nIndustrial Disputes Act<\/a>.”\n<\/p>\n
                18.  Ultimately, the above questions were answered in para  43
\nof its Judgment, as under:\n<\/p>\n
        “43.  To sum up, our conclusions are as follows:\n<\/p>\n
        (1)  The Administrative Tribunals constituted under the Administrative
\nTribunals Act<\/a> are not substitutes for the authorities  constituted  under  the
\nIndustrial  Disputes  Act<\/a>  and  hence  the  Administrative  Tribunal  does not
\nexercise concurrent jurisdiction with those authorities in regard  to  matters
\ncovered by  that  Act.    Hence all matters over which the Labour Court or the
\nIndustrial Tribunal or other authorities had jurisdiction under the Industrial
\nDisputes Act<\/a> do not automatically become vested in the Administrative Tribunal
\nfor adjudication.  The decision in the case of  ‘Sisodia  which  lays  down  a
\ncontrary interpretation is, in our opinion, not correct.\n<\/p>\n
        (2)  An  applicant  seeking  a  relief  under  the  provisions  of the
\nIndustrial Disputes Act<\/a> must ordinarily exhaust the remedies  available  under
\nthat Act.\n<\/p>\n
        (3)  The powers of the Administrative Tribunal are the same as that of
\nthe High Court under Article 226<\/a> of the Constitution and the exercise of  that
\ndiscretionary power would depend upon the facts and circumstances of each case
\nas well as on the principles laid down in the case of Rohtas Industries.\n<\/p>\n
        (4)  The  interpretation  given to the term ‘arrangements in force’ by
\nthe Jabalpur Bench in Rammoo case is not correct.”\n<\/p>\n
                19.  Before reaching the above said  conclusions,  the  larger
\nBench of the Tribunal, held as under in para 41:-\n<\/p>\n
        “41.    In  the  Rohtas  Industries  case,  the  decision  in  Premier
\nAutomobiles case was cited with approval and it was held that if  the  I.D.Act
\ncreates  rights  and remedies it has to be considered as one homogeneous whole
\nand it has to be regarded as uno flato.  But it was made clear that  the  High
\nCourt  could interfere in a case where the circumstances require interference.
\nThis is clear  from  the  following  observation  in  regard  to  exercise  of
\njurisdiction under Article 226:  (SCC p.88<\/a>, para 9)
\n        “<\/a>This court has spelt out wise and clear restraints on the use of this
\nextraordinary  remedy  and  High  Courts  will  not  go beyond those wholesome
\ninhibitions except where the monstrosity of the situation or other exceptional
\ncircumstances cry for timely judicial interdict or mandate.  The mentor of law
\nis justice and a potent drug should be judiciously administered.”\n<\/p>\n
                20.  The Full Bench decision of the Tribunal referred to above
\ncame up for consideration before the Hon’ble Supreme  Court  in  the  judgment
\nreported  in  “(2001)9  SCC 526 (COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH
\nAND ANOTHER versus  PADMA  RAVINDRANATH  (SMT.)  AND  OTHERS)”,  wherein,  the
\ndecision  of  the Full Bench reported in “1990(14) ATC 914 (A.PADMAVALLLEY AND
\nOTHERS versus CPWD, HYDERABAD)” in so far as it related to the principles  set
\nout  in its conclusions on item Nos.1 and 2 alone were referred to in the said
\njudgment and the Hon’ble Supreme Court gave its seal of approval.  The Hon’ble
\nSupreme Court dealt with an appeal against an order of another Full  Bench  of
\nthe  Central  Administrative Tribunal in a proceeding, where, a question arose
\nas to “whether Council of Scientific and Industrial Research (FCS 12)  or  its
\nconstituent  unit  would  come within the definition of ‘industry’ and whether
\nthe persons employed by them in any capacity are workmen within the meaning of
\nIndustrial Disputes Act<\/a>, 1947?”.  The Full Bench of the Tribunal, answered the
\nquestion by stating that CSIR is an industry falling within the definition  of
\nan ‘industry’ under Section 2(j)<\/a> of the Industrial Disputes Act and as regards
\nthe  constituent unit of the council was concerned, the Tribunal held that the
\nmatter had to be decided on the facts arising in the case and in  the  absence
\nof  appropriate  data  and  material,  it would not be proper to decide such a
\nquestion.\n<\/p>\n
        While dealing the above said issues, the  Hon’ble  Supreme  Court  has
\nheld in para 5 as under:\n<\/p>\n
        “5.   In  the circumstances, so far as the law on the question whether
\nCSIR is an industry is concerned, it is now settled by the  decision  of  five
\njudges  of  the Tribunal referred to above and thus decision of the Full Bench
\nbecomes ineffective.  So far as the merit of matter is concerned the  decision
\nof the  Division  Bench  would  bind  the  parties.  The view expressed by the
\nTribunal in the circumstances is unnecessary and uncalled for.  The order made
\nby the Tribunal is therefore set aside.  The appeals are allowed.  No costs.”\n<\/p>\n
                21.  A similar question came up for consideration  before  the
\nDivision  Bench  of Himachal Pradesh High Court in the judgment reported in “2
\n002(3) ATJ 629 (H.P.AGRO INDUSTRIES CORPN.LTD.  AND OTHERS ETC.    Versus  RAJ
\nKUMAR AND  ANOTHER ETC.)”.  The question that was posed for consideration was,
\n“whether the orders passed by the  Administrative  Tribunal  by  invoking  the
\nprovisions  of  the  Industrial Disputes Act<\/a> or under the corresponding law by
\nthe time being in force in favour of the petitioners, were  illegal,  unlawful
\nand without  jurisdiction”.    The Division Bench of the Himachal Pradesh High
\nCourt, ultimately concluded that- where the rights or obligations were created
\nby the Industrial Dispute Act, the only remedy for the aggrieved person has to
\napproach the forum constituted by that Act alone and any other  interpretation
\nwould  be  inconsistent  with  and  contrary  to  law laid down by the Hon’ble
\nSupreme Court.\n<\/p>\n
                22.  In the judgment reported in “(2004)4 SCC  268  (U.P.STATE
\nBRIDGE CORPORATION  LTD.   AND OTHERS versus U.P.RAJYA SETU NIGAM S.KARAMCHARI
\nSANGH)”, the  Hon’ble  Supreme  Court,  while  holding  that  the  rights  and
\nobligations  sought  to  be  enforced  by the Union in the Writ Petition, were
\nthose created by the Industrial Disputes Act<\/a>, the remedy  was  to  invoke  the
\nforum created under the said Act, was pleased to hold in para 12 as under:\n<\/p>\n
        “12.   Although  these  observations  were  made in the context of the
\njurisdiction of the civil court to entertain the proceedings  relating  to  an
\nindustrial  dispute  and may not be read as a limitation on the Court’s powers
\nunder Article 226<\/a>, nevertheless it would need a very strong  case  indeed  for
\nthe  High  Court to deviate from the principle that where a specific remedy is
\ngiven by the statute, the person who insists upon such remedy can avail of the
\nprocess as provided in that statute and in no other manner.”\n<\/p>\n
                        (Emphasis added)<\/p>\n
                23.  On behalf of the ‘Gang  Mazdoors’,  Ms.R.Vaigai,  learned
\ncounsel  appearing for those petitioners, placed reliance upon the judgment of
\nthe Hon’ble Supreme Court  reported  in  “(1987)4  SCC  99  (KRISHNA  DISTRICT
\nCO-OPERATIVE MARKETING  SOCIETY  LIMITED, VIJAYAWADA versus N.V.  PURNACHANDRA
\nRAO AND OTHERS)”, wherein, the Hon’ble Supreme Court,  while  dealing  with  a
\ncase  arising  under  Section  41(1)<\/a>  and  (3) of the Andhra Pradesh Shops and
\nEstablishments Act<\/a>, approved the Division Bench Judgment of  the  High  Court,
\nwherein,  it  was  held  that  in considering the termination of service of an
\nemployee by way  of  retrenchment  was  legal  and  justified,  was  open  for
\nconsideration  by  the authority under the said Act and also determine whether
\nSection 25(F)<\/a> and (G) of the Central Act were complied with or not.    It  was
\nfurther  held  that  the Authority had jurisdiction to set aside the orders of
\ntermination for giving appropriate relief in the event of the finding  to  the
\neffect  that  there  was no compliance of Section 25(F)<\/a> and (G) of the Central
\nAct.\n<\/p>\n
                24.  It will also be useful to refer  to  two  other  Division
\nBench  Judgments  of our High Court, reported in “1990 (2) LLN 26 (INDIAN BANK
\n(REP.  BY ITS ASSISTANT GENERAL  MANAGER)  versus  R.S.    THIRUVENGADAM)  and
\n“1990(2) LLN  355  (INDIAN  BANK,  REP.  BY ITS GENERAL MANAGER, MADRAS versus
\nK.S.GURUMOORTHY AND ANOTHER)”.  In the judgment reported in “19 90(2) LLN 26”,
\nthe then Hon’ble Chief Justice Dr.A.S.Anand, as he then was, while  concurring
\nwith  the main judgment rendered by the Hon’ ble Justice Kanakaraj, as he then
\nwas, has stated the power of this Court under Article 226<\/a> of the Constitution,
\nwhile rendering substantial justice.  Para 39 of  the  order  of  the  learned
\nChief Justice is to the following effect:-\n<\/p>\n
        “39.   Even  ignoring what has been said above, the whole question can
\nbe looked at from another angle also.  This Court is competent  enough,  while
\nexercising  jurisdiction  under  Article  226<\/a> of the Constitution of India, to
\nignore the order of the Authority under the Shop Act on the alleged ground  of
\nlack  of  jurisdiction  on and with a view to render justice itself proceed to
\nexamine the validity of the order of discharge of the  first  respondent  from
\nservice on the basis of the material already on the record, without in any way
\ngetting  into the blurred area of critical appraisal of evidence or adjudicate
\non disputed questions of fact.  If the Court finds that the order of discharge
\nfrom service is per se unsustainable, it can extend  its  arm  to  set  it  at
\nnaught   rather  than  to  ask  another  forum  to  first  adjudicate  on  its
\nvalidity….”\n<\/p>\n
                In the judgment reported in “1990(2) LLN 355”  (cited  supra),
\nthe Division Bench reiterated the legal position as under in para 7:\n<\/p>\n
        “7.  …..    The  proceedings in the instant case arise out of a writ
\npetition filed  under  Article  226<\/a>  of  the  Constitution  of  India.    Writ
\njurisdiction is undoubtedly, an equitable jurisdiction and while balancing the
\nequities  between  the  parties asserting rival claims, the Court examines the
\nconduct of the parties besides nature of the proceedings with a view to render
\njustice.  While exercising writ jurisdiction, the  Courts  generally  make  an
\nattempt to reach wherever injustice is, so as to render justice.  However, the
\nprinciples  of  equity must, for ever, remain present to the mind of the Court
\nand those principles are extended to do substantial justice to a party and not
\nget carried away by narrow technicalities which may ‘legitimise’ injustice.”\n<\/p>\n
                25.  In the above stated legal background stated in the  above
\nreferred  to  decisions, when the competence of the Administrative Tribunal to
\ngo into the question as to the violation of the provisions of  the  Industrial
\nDisputes Act<\/a> is considered, it will have to be stated that the Hon’ble Supreme
\nCourt,  while  approving  the Full Bench decision of the Tribunal, reported in
\n“(2001)9 SCC 526” (cited supra) had specifically referred to  only  first  two
\nconclusions of  the  Full  Bench  of the Tribunal.  It cannot be lost sight of
\nthat in its third conclusion, which has been elaborately set out in para 41 of
\nthe Tribunal’s Full Bench judgment, it has been stated that that would be open
\nfor the Tribunal to set aside the illegal  order  of  termination  and  direct
\nreinstatement  of the employee while leaving it open to the employer to act in
\naccordance with  the  statutory  provisions  and  that  to  that  extent,  the
\nalternate remedy pleaded cannot act as a bar for exercising jurisdiction under
\nArticle 226<\/a> of the Constitution.  For stating the law to that extent, the Full
\nBench  of  the Tribunal was equating itself to that of this Court for invoking
\nthe  extraordinary  jurisdiction  conferred   under   Article   226<\/a>   of   the
\nConstitution.\n<\/p>\n
                26.   It is also to be noted that in the Original Applications
\nbefore the  Administrative  Tribunal,  the  applicants  were  challenging  the
\nvalidity  of  the  Government  Order  as  being violative of Article 14<\/a> of the
\nConstitution, a contention which possibly could not have been  entertained  by
\nthe Industrial Tribunal of the Labour Court.\n<\/p>\n
                27.   In  the  case  on  hand, before the State Administrative
\nTribunal, there was a specific contention raised in  the  written  submissions
\nfiled  on  behalf  applicants  in  O.A.No.13786  of 2002 pointing out that the
\norders of termination wherein, violation of Section 25(F)<\/a>  of  the  Industrial
\nDisputes Act  and  therefore, such termination orders were ab initio void.  It
\nis also common ground that there was no such compliance of the  provisions  of
\neither  Section  25(F)<\/a>  of  the  Industrial  Disputes  Act or the stipulations
\ncontained in Chapter V-(B) relating to retrenchment of the employees.\n<\/p>\n
                28.  All the ‘Gang Mazdoors’ came to be employed  by  specific
\norders  of appointments in the year 1997 and came to be terminated in the year
\n2002.  In between their services were  regularised  after  completion  of  the
\nrequired period of probation .  It is relevant to state that while at the time
\nof  their  initial  appointment, they were paid a consolidated wages, on their
\nregularisation, they were fixed in time scale of pay.  Immediately, after  the
\nissuance  of  the  orders  of  termination, the ‘Gang Mazdoors’ approached the
\nState Administrative Tribunal  by  filing  several  Original  Applications  by
\njoining together  in  several  groups.   In fact, the Tribunal, though has not
\nanalysed the  question  as  to  the  violation  complained  of  based  on  the
\nprovisions  of the Industrial Disputes Act<\/a>, it had gone into the merits of the
\norders of termination and when it ultimately held that the  abolition  of  the
\nposts  of  ‘Gang  Mazdoors’  of  9728  being  the policy decision of the State
\nGovernment, the same cannot be interfered with.  The Tribunal, was however, of
\nthe view that the ‘Gang Mazdoors’ were  entitled  for  some  compensation  and
\naccordingly,  directed  the  respondent  State  to pay a sum equivalent to six
\nmonths salary to all the applicants as well  as  the  other  similarly  placed
\n‘Gang Mazdoors’ who did not approach the Tribunal.\n<\/p>\n
                29.   In  the  above  said factual situation, the question for
\nconsideration is,  whether  it  can  be  held  that  the  Tribunal  had  every
\njurisdiction to go into the question about the violations of the provisions of
\nthe  Industrial  Disputes Act<\/a> while dealing with a case of nonemployment of an
\nemployee.\n<\/p>\n
                30.  Though in the  judgment  reported  in  “1987(4)  SCC  99”\n<\/p>\n
(cited  supra), while dealing with a case, which arose under the provisions of
\nthe Andhra Pradesh Shops and Establishments Act<\/a>,  1966,  the  Hon’ble  Supreme
\nCourt  was  pleased  to  hold  that  the  Shops  Act Authority will have every
\njurisdiction to deal with the contention based on violation of the  provisions
\nof the Industrial Disputes Act<\/a> in particular, Section 25(F)<\/a> and (G), the later
\ndecision  of  the  Hon’ble  Supreme  Court reported in “(2001)9 SC 526” (cited
\nsupra), which dealt with a case arising out of the proceedings from a  Central
\nAdministrative  Tribunal,  has virtually held that an applicant seeking relief
\nunder the provisions of the Industrial Disputes Act<\/a>  must  ordinarily  exhaust
\nthe remedies  available under that Act.  Even though in the said judgment, the
\nHon’ ble Supreme Court was pleased to approve of the Full Bench  view  of  the
\nTribunal  reported  in 1990(14) ATC 914 (cited supra), such an approval of the
\nsaid Full Bench decision could only be traced to the effect that even the said
\nTribunal, if at all, could exercise the powers analogous under Article 226<\/a>  of
\nthe  Constitution,  can examine the correctness of the order of termination in
\nevery respect under certain extraordinary situations and  that  it  should  be
\njudiciously administered.  Therefore, de hors the conclusion of the Full Bench
\nof  the  Tribunal reported in “1990(14) ATC 914” (cited supra) in so far as it
\nheld that an applicant seeking a relief under the provisions of the Industrial
\nDisputes Act<\/a> must ordinarily exhaust the remedies available  under  that  Act,
\nthe powers of the Tribunal under Article 226<\/a> being available with it as stated
\nin  para  43(3)  of  its  judgment,  in  exercise of such power, with the self
\nimposed restrictions, when justice demands  what  this  Court  could  do,  the
\nTribunal could equally administer justice without any limitation.  In that way
\nit  will  have  to  be held that Tribunal could have examined the point raised
\nbased on the violation of the provisions of the Industrial Disputes Act<\/a>.\n<\/p>\n
                31.  Again, when the legal position stated in  the  subsequent
\njudgment  of  the  Hon’ble Supreme Court reported in “2004 (4) SCC 268” (cited
\nsupra) is perused, it reaffirms the above said position.   In  this  decision,
\nthe  Hon’ble  Supreme Court would only point out that under Article 226<\/a> of the
\nConstitution, it would need a very strong case indeed for the  High  Court  to
\ndeviate from the principle that where specific remedy is given by the statute,
\nthe  person  who insists upon such remedy can avail of the process as provided
\nin that statute and in no other manner.\n<\/p>\n
                32.  The resultant position of  the  above  discussion,  would
\nlead  us  to  the  conclusion that in the facts and circumstances of the case,
\nwhere about 9728 employees complained a serious violation of the provisions of
\nthe Industrial Disputes Act<\/a> and where such violations complained of  by  those
\n‘Gang  Mazdoors’  have  been  prima  facie found to be not in controversy, the
\nquestion would be, whether the said ‘Gang Mazdoors’ who  are  9728  in  number
\nshould  now be driven to work out their remedy by invoking the jurisdiction of
\nthe forums created under the  Industrial  Disputes  Act<\/a>  by  raising  disputes
\nagainst their  non  employment.  At the risk of repetition, it will have to be
\nstated that their employment which commenced from 1997 came to an end  in  the
\nyear  2002  and  in  spite of a point raised by way of a contention before the
\nState Administrative Tribunal, the said contention was never considered by the
\nTribunal and in the year 2004, would it be justified in  directing  the  whole
\nlot  of  9728  workmen  to  work  out their remedy under the provisions of the
\nIndustrial Disputes Act<\/a> by approaching the machinery provided under that  Act.
\nIt  is  also  relevant  to  be  stated  that as on date, there is no Presiding
\nOfficer in the State Administrative Tribunal and we  can  also  take  judicial
\nnotice  of  the  fact  that  the  State  Government has decided to abolish the
\nTribunal itself.  In the said scenario, we find force  in  the  contention  of
\nMs.R.Vaigai in relying upon the Division Bench Judgment of this Court reported
\nin  “1991Wr.L.R.69  9” (cited supra) in particular paragraph 7 of the judgment
\nof His Lordship The Chief Justice Dr.A.S.Anand, as he then was,  as  well  as,
\nthe judgment reported in “1990(2) LLN 355”, paragraph 7 (mentioned above).\n<\/p>\n
                33.   Therefore,  going  by  the  law laid down by the Hon’ble
\nSupreme Court in “(2004)4 SCC 268 (U.P.STATE  BRIDGE  CORPORATION  LTD.    AND
\nOTHERS  versus  U.P.RAJYA SETU NIGAM S.KARAMCHARI SANGH)” paragraph 12 as well
\nas the Division Bench judgments referred to above, we are convinced that  even
\nthough  the  grounds  of  attack  of  the petitioners against the order of the
\nTribunal as well as the orders of termination issued to the ‘Gang Mazdoors’ on
\nthe footing  that  such  orders  of  termination  were  in  violation  of  the
\nprovisions  of  the Industrial Disputes Act<\/a>, the same can be examined in these
\nWrit Petitions in the light of the extraordinary situation that  demands  such
\nscrutiny in  these  Writ  Petitions.  We, accordingly hold that in exercise of
\nour  jurisdiction  under  Article  226<\/a>  of  the  Constitution,  it  would   be
\njusticiable to examine the said aspect in these Writ Petitions.\n<\/p>\n
                34.   In  the light of our conclusions as above, we answer the
\nquestions 1 and 2 against the State Government.\n<\/p>\n
                35.  The next question is, as to whether at all the Industrial
\nDisputes Act<\/a> would be applicable to the  establishment,  viz.,  Department  of
\nHighways of State of Tamil Nadu and consequently, to Gang Mazdoors.\n<\/p>\n
                36.  While on behalf of the petitioners, it was contended that
\nthe  activities of the Department of High Ways in the matter of maintenance of
\nthe public roads would fall within the definition of ‘industry’ as defined  in
\nthe  Industrial  Disputes  Act<\/a>,  according  to  the respondent-State, the said
\nactivity being the sovereign function of the State, would not fall within  the
\nfour  corners  of the provisions of the Industrial Disputes Act<\/a> and therefore,
\nthe violations complained  of  based  on  the  provisions  of  the  Industrial
\nDisputes Act<\/a> cannot be gone into.\n<\/p>\n
                37.   In  this context, it would be worthwhile to refer to the
\ncertain decisions relied upon by both parties.\n<\/p>\n
                38.  In the judgment reported  in  “1988  LIC  690  (EXECUTIVE
\nENGINEER,  NATIONAL  HIGHWAY  DIVISION,  BALASORE  AND  OTHERS versus REGIONAL
\nPROVIDENT FUND COMMISSIONER, BHUBANESWAR)”, the Division Bench of Orissa  High
\nCourt,  while  dealing  with  a  case  arising  under  the  provisions  of the
\nEmployees’ Provident Funds and Miscellaneous Provisions Act<\/a>,  1952,  took  the
\nview  that the Works Department of a Government where the contractors employed
\ntheir workmen in which, the  principal  employer  only  had  a  check  control
\nregarding  the  quality,  held  that  according  to  the  specifications,  the
\nemployees working under the contractors cannot be held to be employees of  the
\nWorks Department nor can it be held that the said Department was the principal
\nemployer.   As  the question arose in that judgment related to the coverage of
\nthe employees of a contractor under the provisions of the Employees’ Provident
\nFunds Act<\/a> and in the light of the fact that such employment was  not  directly
\nmade by the Works Department, there is no scope for applying the said decision
\nto the facts of this case.\n<\/p>\n
                39.  In one another decision reported in “1973 LAB.I.C.  553 (
\nSUPERINTENDING  ENGINEER, NATIONAL HIGHWAY PROJECT, BHUBANESWAR versus BAIDHAR
\nLENKA AND ANOTHER)”, another Division Bench of the Orissa  High  Court,  while
\ndealing  with  a  case  relating  to  ‘Roller-helper’ in the Department of the
\nNational Highway Projects under the Works  and  Transport  Department  of  the
\nGovernment  of  Orissa,  wherein,  the  concerned person approached the Labour
\nCourt under Section 33-C(2)<\/a> of the Industrial Disputes  Act  claiming  certain
\nbenefits, the Division Bench, in the light of the decision prevailing then, as
\nto  what is an ‘industry’ as held by the Hon’ble Supreme Court in “AIR 1970 SC
\n1407 (S.J.HOSPITAL, NEW DELHI  versus  K.S.SETHI)”,  held  that  the  National
\nHighway  Project  was  carried  on  as part of sovereign function of the State
\nGovernment and that the same was  not  an  ‘industry’  and  consequently,  the
\nconcerned person cannot be termed as ‘workman’ coming within the provisions of
\nthe Industrial  Disputes Act<\/a>.  This Division Bench judgment of the Orissa High
\nCourt will have to be analysed in the light of the subsequent decisions of the
\nHon’ble Supreme Court which had dealt with the issue in detail.  We shall deal
\nwith the same at the  appropriate  stage  when  we  discuss  about  the  later
\ndecisions.\n<\/p>\n
                40.   In  the  judgment reported in “(2001)9 SCC 713 (STATE OF
\nGUJARAT AND OTHERS versus PRATAMSINGH NARSINGH PARMAR)”, the  Hon’ble  Supreme
\nCourt  made it clear that whenever a dispute arises as to whether a particular
\nestablishment or part of it wherein appointment was made, is an ‘industry’  or
\nnot,  it  would  be  for  the  person  concerned  who claims the same to be an
\n‘industry’, to give positive facts  for  coming  to  the  conclusion  that  it
\nconstitutes “an   industry”.      The  Hon’ble  Supreme  Court  observed  that
\nordinarily, a department of the government cannot be held to  be  an  industry
\nand rather  it  is  a  part of the sovereign function.  In such circumstances,
\nthough it was contended that the dismissal was vitiated for non-compliance  of
\n25-F  of the Industrial Disputes Act, in the light of the assertion and denial
\nmade by the state in the counter affidavit where a stand was  taken  that  the
\nForest  Department  cannot  be  held  to  be an industry, it was held that the
\nperson concerned who was employed as a  clerk  governed  by  a  set  of  rules
\nprovided under the proviso to Article 309<\/a> of the Constitution of India and for
\nlack  of necessary details furnished by the concerned workman, the decision of
\nthe High Court in holding that the Forest  Department  is  an  ‘industry’  was
\nerroneous.\n<\/p>\n
                41.   One  other  decision  which  was strongly relied upon by
\nThiru A.L.Somayaji is the judgment reported in  “1983(1)  LLJ  309  (STATE  OF
\nPUNJAB versus  KULDIP  SINGH  AND  ANOTHER)”.  It is a Full Bench Judgement of
\nPunjab and Haryana High Court.  The Full Bench was dealing with a question  as
\nto  whether the national communication system like National and State Highways
\nand their maintenance can be construed as the involvement of the  state  in  a
\ntrade or business activity or in any case something analogous thereto, even if
\nthe  latter  aspect is viewed with the widest liberality in order to bring the
\nsaid activity under the definition of ‘industry’ under  Section  2(j)<\/a>  of  the
\nIndustrial Disputes   Act.     The  Full  Bench  was  of  the  view  that  the
\nestablishment construction and maintenance of national and state highways  are
\nall  essential  functionary  of the government which cannot be left to private
\nenterprise and therefore, such activities, such as  network  of  communication
\nsystem,  defence  system  were  all  sovereign  functions of the state , which
\ncannot  be  passed  on  to  the  whimsicalities  of  private  individuals   or
\nCorporations.   So  holding,  the  Full  Bench  was  of  the  view  that  such
\ndepartments of the Highways would not come within the ambit of ‘ industry’  as
\ndefined under the provisions of the Industrial Disputes Act<\/a>.\n<\/p>\n
                42.   As  against  the  above  said  views, there is one other
\njudgment of the Hon’ble Supreme  Court  reported  in  “(1999)1  SCC  596  (LAL
\nMOHAMMAD  AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD., AND OTHERS)”.
\nThat was a case, where the question arose  as  to  whether  a  project  called
\n‘Righand  Nagar  Project’  of  the Indian Railway Construction Company Limited
\nwould fall within the definition of  “industrial  establishment”  governed  by
\nChapter  V-B  of  the  Industrial  Disputes  Act and consequently, the workmen
\nconcerned therein would be covered by Section 25 (N) sub section  (1)  of  the
\nsaid Act.    Dealing  with  the said issue, the Hon’ble Supreme Court took the
\nview that in order to come within the definition of ‘factory’ as defined under
\nSection 2(m)<\/a> of the Factories Act, no fixed site was necessary and  that  even
\n‘open land’  can  also  be  a part of the premises.  The Hon’ble Supreme Court
\ndealt with the said question and held as under in para 17.\n<\/p>\n
        “17.  It is difficult to accept this contention.  It is true that  the
\nword  “premises” as found in the definition must have a fixed site but as held
\nby the Constitution Bench Judgment of this Court in Ardeshir H.   Bhiwandiwala
\n(AIR  1962  SC 29), the term “premises” not only covers building but even open
\nland can also be a part of the premises.  It is easy to visualise that when  a
\nrailway  line  is  to  be  constructed  over  an  area of 54 kms, it cannot be
\nconstructed overnight.  The whole exercise would be carried out  in  a  phased
\nmanner.   For laying down a railway line, a number of workmen, supervisors and
\nother clerical staff will have to attend the site where the railway line is to
\nbe laid.  That site on which the railway line is to be laid  will  necessarily
\nhave space  for  storage  of  loose  rails,  sleepers,  bolts  etc.  All these
\narticles will have to be laid and fixed on a given site before any part of the
\nrailway tract becomes ready.  Consequently, construction  of  a  railway  line
\nwould  necessarily  imply  fixed  sites on which such construction activity is
\ncarried on, in a phased manner.  Every time when such construction activity is
\ncarried on, it must necessarily be on a given fixed site where all the workmen
\nconcerned would work for the purpose of laying down a  railway  line  at  that
\nsite.   Thus,  even though the railway line is to be laid over 54 kms of land,
\nevery part of the said land would consist of a “factory” at a given  point  of
\ntime  as  from  time  to time in a phased manner, the entire railway line will
\nhave to be laid.  Once the entire work is finished,  then  a  stage  would  be
\nreached  when  the construction activity would come to an end and the premises
\nthereof may cease to be a “factory” but so long as construction work is  being
\ncarried  out  in  phases,  every  part  of the land on which such construction
\nactivity takes place would form a part and parcel of the “premises”  as  such.
\nA railway  line  cannot be laid except on a fixed site.  It is not, therefore,
\npossible to accept the submission of learned Senior Counsel,  Shri  Dave  that
\nthe  Rihand  Nagar  Project  which was to carry out the construction work of a
\nrailway line up to 54 kms had no fixed site to operate upon and therefore, was
\nnot a “premises”.  …”\n<\/p>\n
                                (Emphasis added)\n<\/p>\n
                43.  Again, while dealing with the question as to whether  the
\nlaying  of  railway  line  can be construed as a “manufacturing activity”, the
\nHon’ble Supreme Court has held as under in para 18.\n<\/p>\n
        “18.  …..  It cannot be disputed that while railway lines are  being
\nconstructed  on  a  given  site,  no  article  or  substance  is being made or
\nrepaired, maintained, finished etc.  However, the only relevant clause of  the
\ndefinition  which has to be seen is whether at the Rihand Nagar Project of the
\nrespondent-Company, the process of construction of a railway line amounted  to
\nadapting any  article  or  substance  with  a  view  to its use.  It cannot be
\nseriously disputed that raw materials like railway sleepers, bolts  and  loose
\nrailway  rails  when bought by the respondent-company from the open marked and
\nbrought on the site were articles  visible  to  the  eyes  and  were  moveable
\narticles.  These  articles  were  adapted  for  their  use.  Their use was for
\nultimately laying down a railway line.  In that process, sleepers,  bolts  and
\nrails would  get  used up.  If that happens, the definition of ” manufacturing
\nprocess” dealing with adaptation of these articles for use would squarely  get
\nattracted.   However, Shri Dave, learned counsel for the respondent, submitted
\nthat the ultimate product of this exercise or process  is  the  bringing  into
\nexistence a railway track which is embedded in the earth which cannot be sold,
\ntransported, delivered  or  disposed  of  like  a  moveable property.  To that
\nextent, Shri Dave is right.  However, as the definition is worded,  it  cannot
\nbe said of necessity that any end product which results after adapting any raw
\nmaterial,  article  or  substance  “with  a  view to its use” must necessarily
\nresult into a moveable final product or a commodity.  ….”\n<\/p>\n
        “…..  We, therefore, are not in  a  position  to  sustain  even  the
\nsecond  reason  given by the High Court in the impugned judgment to the effect
\nthat no “manufacturing process” was  being  carried  out  in  the  project  in
\nquestion.  Even accepting the contention of learned counsel, Shri Dave for the
\nrespondent  that  the  final  product,  namely, construction of a railway line
\nembedded in the earth was not  the  subject  matter  of  the  sale,  transfer,
\ndelivery or disposal, still the raw materials which were adapted for their use
\nwith  a  view to constructing a railway line which was the final product could
\nbe said to have fallen  within  the  sweep  of  the  definition  of  the  term
\n“manufacturing process”  as  found in Section 2(k)<\/a> of the Factories Act.  Once
\nthat conclusion  is  reached,  the  result   becomes   obvious.      All   the
\nappellant-workers  would squarely attract the definition of the term “workmen”
\nas found in Section 2(l)<\/a> of  the  Factories  Act  as  they  were  working  for
\nremuneration  in  a  manufacturing  process  carried  out  by  the  Project in
\nquestion.  It must, therefore, be held that all the requirements of  the  term
\n“factory” as defined by Section 2(m)<\/a> of the Factories Act are satisfied on the
\nfacts of the present case.”\n<\/p>\n
                                (Emphasis added)\n<\/p>\n
                44.   In  yet  another judgment reported in “(2000)3 SCC 224 (
\nMUNICIPAL CORPORATION  OF  DELHI  versus  FEMALE  WORKERS  (MUSTER  ROLL)  AND
\nANOTHER)”  a  question  arose  as  to whether the ‘activity of Delhi Municipal
\nCorporation in undertaking construction, laying and  repairing  of  roads  and
\ndigging  of  trenches,  would  come  within  the definition of ‘ industry’ and
\nwhether the dispute between the workmen and the Corporation will  have  to  be
\nthrashed under  the  provisions  of the Industrial Disputes Act<\/a>‘.  The Hon’ble
\nSupreme Court, dealt with the said issue and the ratio has  been  set  out  in
\npara 36 of the judgment which is to the following effect:\n<\/p>\n
        “36.   Taking  into consideration the enunciation of law as settled by
\nthis Court as also the High Courts in various decisions referred to above, the
\nactivity of the Delhi Municipal Corporation  by  which  construction  work  is
\nundertaken or roads are laid or repaired or trenches are dug would fall within
\nthe definition of “industry”.  The workmen or, for that matter, those employed
\non muster roll for carrying on these activities would, therefore, be “workmen”
\nand  the  dispute between them and the Corporation would have to be tackled as
\nan industrial dispute in the light of  various  statutory  provisions  of  the
\nindustrial law,  one of which is the Maternity Benefit Act<\/a>, 1961.  This is the
\ndomestic scenario.  Internationally, the scenario is not different.”\n<\/p>\n
                                        (Emphasis added)\n<\/p>\n
                45.  In the Judgment reported in “(1988)2 SCC 537 (DES RAJ AND
\nOTHERS versus STATE OF PUNJAB AND OTHERS)”, the Hon’ble  Supreme  Court  dealt
\nwith  a  case  of  the  Irrigation  Department  of  the State of Punjab and by
\napplying the ‘Dominant test’ evolved by the Hon’ble Supreme Court in  the  oft
\nquoted  judgment  in “Bangalore Water Supply and Sewerage Board case” reported
\nin (1978)2 SCC 213, it was held that the Irrigation Department  of  the  State
\nGovernment  is  an  ‘industry’  within  the  meaning  of  Section  2(j)<\/a> of the
\nIndustrial Disputes Act.  While dealing  with  the  said  issue,  the  Hon’ble
\nSupreme  Court had occasion to consider the Full Bench judgment relied upon by
\nMr.A.L.Somayaji, learned Senior counsel, reported in “1983(1) LLJ 309”  (cited
\nsupra)  which was followed by a Full Bench of the same High Court, reported in
\n“1984 CLJ 349 (OM  PRAKASH  versus  EXECUTIVE  ENGINEER,  SYL,  KURUKSHETRA)”.
\nWhile  dealing with the issue involved in that case, the Hon’ble Supreme Court
\ndecided the issue in the anvil of the “Dominant Nature” test set  out  by  the
\nHon’ble  Supreme  Court  in  “Bangalore  Water Supply and Sewerage Board case”
\nreported in (1978)2 SCC 213.  The Dominant Nature test as set out in the  said
\njudgment is to the following effect:-\n<\/p>\n
“The dominant nature test:\n<\/p>\n
        (a)  Where  a  complex  of  activities,  some  of  which  qualify  for
\nexemption, others not, involves employees on the total  undertaking,  some  of
\nwhom are  not  “workmen” as in the University of Delhi Vs.  Ram Nath (19 64(2)
\nSCR 703) or some departments are not  productive  of  goods  and  services  if
\nisolated, even then, the predominant nature of the services and the integrated
\nnature of the departments as explained in the ” Corporation of Nagpur (1960(2)
\nSCR 942)”  will  be  the  true test.  The whole undertaking will be “industry”
\nalthough those who are not ” workmen” by definition may  not  benefit  by  the
\nstatus.\n<\/p>\n
        (b)   Notwithstanding   the  previous  clauses,  sovereign  functions,
\nstrictly understood, (alone) qualify for exemption, not the welfare activities
\nor economic adventures undertaken by government or statutory bodies.\n<\/p>\n
        (c) Even in departments discharging sovereign functions, if there  are
\nunits which are industries and they are substantially severable, then they can
\nbe considered to come within Section 2(j)<\/a>.\n<\/p>\n
        (d)  Constitutional and competently enacted legislative provisions may
\nwell remove from the scope of  the  Act  categories  which  otherwise  may  be
\ncovered thereby.”\n<\/p>\n
                                (Emphasis added)
\nTherefore,  applying  the above said test, the Hon’ble Supreme Court proceeded
\nto hold that the Irrigation Department of the  State  would  fall  within  the
\ndefinition  of  ‘industry’  and  therefore,  the  provisions of the Industrial
\nDisputes Act<\/a> would get attracted.\n<\/p>\n
                46.  Again, in the judgment reported in “(1998)3 SC  237  (ALL
\nINDIA RADIO versus SANTOSH KUMAR AND ANOTHER)”, the Hon’ble Supreme Court held
\nthat  ‘All  India  Radio  and Doordarshan’ would fall within the definition of
\n‘industry’ under Section 2(j)<\/a> of the Industrial Disputes Act.\n<\/p>\n
                47.  In the judgment reported in “(2000)8 SCC 61 (AGRICULTURAL
\nPRODUCE MARKET COMMITTEE versus ASHOK  HARIKUNI  AND  ANOTHER)”,  the  Hon’ble
\nSupreme  Court  has  dealt  with the question as to what activity of the State
\ncould be considered as ‘sovereign and non sovereign  functions’.    The  legal
\nposition  has  been  clearly  set  out in para 21 of the said judgment, to the
\nfollowing effect:-\n<\/p>\n
        “21.  In other words, it all depends on the nature of power and manner
\nof its exercise.  What is  approved  to  be  “sovereign”  is  defence  of  the
\ncountry,  raising armed forces, making peace or war, foreign affairs, power to
\nacquire and retain territory.  These are not amenable to the  jurisdiction  of
\nordinary civil  Courts.    The  other functions of the State including welfare
\nactivity of State could not be construed as  “sovereign”  exercise  of  power.
\nHence, every  governmental function need not be “sovereign”.  State activities
\nare  multifarious,  from  the  primal  sovereign  power,   which   exclusively
\ninalienably could be exercised by the sovereign alone, which is not subject to
\nchallenge  in  any  civil  court to all the welfare activities, which would be
\nundertaken by any private person.    So  merely  if  one  is  an  employee  of
\nstatutory bodies  would  not  take  it outside the Central Act<\/a>.  If that be so
\nthen Section 2(a)<\/a> of the Central Act read with Schedule I gives  large  number
\nof statutory  bodies which should have been excluded, which is not.  Even if a
\nstatute confers on any statutory body, any function which could  be  construed
\nto  be  ‘sovereign’  in  nature would not mean every other functions under the
\nsame statute to be also sovereign.  The court should examine  the  statute  to
\nsever  one  from  the other by comprehensively examining various provisions of
\nthat statute.  In interpreting any statute to find if it as “industry” or  not
\nwe have  to  find  its  pith  and  substance.    The Central Act<\/a> is enacted to
\nmaintain harmony between employer and employee which brings peace and amity in
\nits functioning.  This  place  and  amity  should  be  the  objective  in  the
\nfunctioning of  all  enterprises.  This is to the benefit of both the employer
\nand employee.  Misuse of rights and obligations by  either  or  stretching  it
\nbeyond  permissible  limits  have to be dealt with within the framework of the
\nlaw but endeavour should not be in all circumstances to exclude any enterprise
\nfrom its ambit.  That is why courts  have  been  defining  “industry”  in  the
\nwidest  permissible  limits  and  “sovereign”  functioning  within its limited
\norbit.”\n<\/p>\n
                                (Emphasis added)\n<\/p>\n
                48.  Yet another decision of the Hon’ble Supreme Court,  which
\nhad  dealt  with the question as to what kind of activities of the State could
\nbe characterized as ‘sovereign functions’ is the one reported in “(1996)2  SCC
\n293 (CHIEF CONSERVATOR OF FORESTS AND ANOTHER versus JAGANNATH MARUTI KONDHARE
\nAND OTHERS)”.    In the said decision, the Bangalore Water Supply and Sewerage
\nBoard case” was also referred and the position has been  stated  as  under  in
\nparagraphs 7 and 8:\n<\/p>\n
        “7.   As  per  the  Bangalore  water  Supply  case  (1978)2  SCC 213),
\nsovereign functions “strictly understood” alone qualify for exemption, and not
\nthe welfare activities or economic adventures undertaken  by  the  Government.
\nThis is  not  all.    A  rider  has  been  added  that even in the departments
\ndischarging sovereign functions, if there are units which are  industries  and
\nthey  are  substantially  severable,  then  they  can  be  considered to be an
\nindustry.  As to which activities of the Government could be called  sovereign
\nfunctions strictly understood, has not been spelt out in the aforesaid case.\n<\/p>\n
        “8.   Ms.Jaising, however, urges that as the majority had accepted the
\ntest explained in the Corpn.  Of the City of Nagpur VS.  Employees (1 960  (2)
\nSCR  942),  we  should  note what was Stated about sovereign functions in that
\ndecision.  In that judgment this aspect has been dealt at pp.953 to 955 of the
\nReport.  The Bench of that case first noted the rival contention  advanced  in
\nthis  regard,  which by the learned counsel for the Corporation was to enlarge
\nthe scope of these functions as to comprehend all the welfare activities of  a
\nmodern  State,  whereas  the  learned  counsel  for  the respondents sought to
\nconfine them to what are aptly termed “the primary and  inalienable  functions
\nof a  constitutional  government”.    In  support  of the contentions advanced
\nreference was made to Holland’s Jurisprudence as to which it was  observed  by
\nthe Bench that the same had no relevance.  The Bench then referred to what was
\nstated by Lord Watson in Coomber V.  Justices of Berks (1883-84 (9) AC 61), in
\nwhich,  the  functions such as administration of justice, maintenance of order
\nand repression of crime were  described  among  the  primary  and  inalienable
\nfunctions.   Reference  was then made to the dissenting judgment of Issacs, J.
\nin Federated State School Teachers’ Assn.  of Australia V.  State of  Victoria
\n(1929 (41) CLR 569 ), in which the learned Judge stated as below at p.585:\n<\/p>\n
        “Regal functions  are  inescapable  and  inalienable.    Such  are the
\nlegislative power, the administration of laws, the exercise  of  the  judicial
\npower.   Non-regal functions may be assumed by means of the legislative power.
\nBut when they are assumed the State acts simply as a  huge  corporation,  with
\nits legislation  as  the charter.  Its action under the legislation, so far as
\nit is not regal execution of the law is merely analogous to that of a  private
\ncompany similarly authorised.”\n<\/p>\n
        The  Bench thereafter observed that the aforesaid clearly mark out the
\nambit of the regal functions as distinguished  from  the  other  powers  of  a
\nState.  This  shows  that  as per the Corpns.  of Nagpur case, those functions
\nalone which are inalienable can be called sovereign.  Ms.Jaising would like us
\nto take the same stand.”\n<\/p>\n
                                (Emphasis added)
\nIn para 12, the Hon’ble Supreme Court held that the dichotomy of sovereign and
\nnon sovereign functions does not really exist and that it  would  depend  upon
\nthe nature  of  the power and the manner of its exercise.  Ultimately, in para
\n13, the Hon’ble Supreme Court has stated the legal position as under:-\n<\/p>\n
        “13.  The aforesaid shows that if we were to  extend  the  concept  of
\nsovereign function to include all welfare activities as contended on behalf of
\nthe appellants, the ratio in Bangalore Water Supply case would get eroded, and
\nsubstantially.   We would demur to do so on the face of what was stated in the
\naforesaid case according to which except  the  strictly  understood  sovereign
\nfunction, welfare activities of the State would come within the purview of the
\ndefinition  of  industry; and, not only this, even within the wider circule of
\nsovereign function, there may be an  inner  circule  encompassing  some  units
\nwhich could be considered as industry if substantially severable.”\n<\/p>\n
                                (Emphasis added)\n<\/p>\n
                49.   From  the  above  referred  to  decisions, we can easily
\ndiscern that all functions of the State need not necessarily be  sovereign  in
\nnature,  merely because such functions are either organised or administered by
\nthe State.  In fact, in the Bangalore Water Supply case, the  Hon’ble  Supreme
\nCourt  made it clear that while applying the dominant nature test, even in the
\ndepartments discharging sovereign functions  if  there  are  units  which  are
\nindustries  and they are substantially severable, they can be considered to be
\nan industry to come within Section 2(j)<\/a> of the Industrial Disputes Act.\n<\/p>\n
                50.  Now coming to the  decision  of  the  Division  Bench  of
\nOrissa  High  Court,  reported  in 1973 LIC 553 (cited supra), in the light of
\nlater decisions of the Hon’ble Supreme Court as narrated above, this  decision
\ncan no longer be followed.\n<\/p>\n
                51.  Going by the dictum of the Hon’ble Supreme Court reported
\nin  “(2000)8  SCC  61  (AGRICULTURAL  PRODUCE  MARKET  COMMITTEE  versus ASHOK
\nHARIKUNI AND ANOTHER)”, the ratio can be deduced to the effect that the  Court
\nshould  examine  the  statute  to  sever one from the other by comprehensively
\nexamining various provisions of that statute and in interpreting  any  statute
\nto  find  if  it is ‘industry’ or not, one has to find its pith and substance.
\nBy and large it was  pointed  out  that  sovereign  functions  may  cover  its
\nlegislative  functions,  administration of law, eminent domain, maintenance of
\nlaw and order, internal and external security, grant of pardon and such  other
\nanalogous functions.  The theory of inalienableness of sovereign functions has
\nalso been stressed by the Hon’ble Supreme Court.\n<\/p>\n
                52.   In  the anvil of the above legal position, when the case
\non hand is examined, we find that the ‘Gang Mazdoors’ were employed  initially
\non  temporary basis and later their services were regularised after completion
\nof the required period of probation.  The nature of work was nothing  but  the
\nmaintenance of  the roads at regular intervals.  The Gang Mazdoors after their
\nregularisation, were fixed in the time scale of pay.  The  Gang  Mazdoors  who
\nwere  employed  in  the  Work  Charged Establishment for execution of specific
\nworks and projects on completion of the work for which  they  were  recruited,
\nwere  being  transferred  from  old  works  to new works and they continued in
\nservice without any break.\n<\/p>\n
                53.  In fact, when  G.O.Ms.371  dated  19-8-1997  came  to  be
\nissued  for  recruitment  of the ‘Gang Mazdoors’ in 9813 posts, it was pointed
\nout that employment of such ‘Gang Mazdoors’ should preferably be made from the
\nvillages which are adjacent to the road margins, that such criteria  was  laid
\ninasmuch  as,  the  maintenance  of roads, cutting of tree branches, repairing
\nwork to be undertaken could all be done only by engaging  such  local  persons
\nhailing from  such  adjacent  villages.    It  was also stated therein that by
\nproviding scope for such engagement, some job opportunities can be extended to
\nthe poor local villagers.  From all the above said factors, it can  be  culled
\nout  that the nature of jobs performed by the Gang Mazdoors were purely manual
\nand it did not require any special skill to attend to such  jobs.    What  all
\nrequired  for a Gang Mazdoor, is, a good physic and easy availability in order
\nto upkeep and maintain the highways in a proper condition.\n<\/p>\n
                54.  As far as the nature of job performed by the Gang Mazdoor
\nis concerned, it can be easily equated  to  the  principles  set  out  in  the
\njudgment  of  the  Hon’ble  Supreme  Court  reported in “(1999)1 SCC 596 ( LAL
\nMOHAMMAD AND OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD.  AND  OTHERS)”,
\nwherein,  the Hon’ble Supreme Court dealt with a case in respect of a ‘Railway
\nconstruction Company’.  We find the job of a Gang Mazdoor to be more  or  less
\nidentical.   That  was  a  case where the concerned workmen were employed in a
\nproject of construction of a railway line of 54 kms  known  as  ‘Rihand  Nagar
\nProject’ in  the  state  of  Uttar  Pradesh.  Dealing with the said issue, the
\nHon’ble Supreme Court specifically considered the  definition  of  ‘industrial
\nestablishment’ along with Section 2(m)<\/a> of the Factories Act and held that even
\nan  open  land can also be a part of the premises and that the construction or
\nlaying of a railway line over an area of 54 kms, with the aid of a  number  of
\nworkmen of different categories on the very site on which, the railway line is
\nto  be laid would by itself satisfy the definition of ‘fixed site’ in order to
\ncall the said site a ‘factory’.  It was  further  held  that  even  though  no
\narticle  or  substance was being made or repaired, maintained, finished, etc.,
\nin the course of construction of a railway line, yet it can be construed  that
\nthe  process  of construction of railway line amounted to adapting any article
\nwith a view to its use and  thereby  making  it  a  “manufacturing  activity”.
\nSimilarly  in  the judgment reported in (2000)3 SCC 224 (MUNICIPAL CORPORATION
\nOF DELHI versus FEMALE WORKMEN (MUSTER ROLL) AND ANOTHER), the Hon’ble Supreme
\nCourt held that the construction work undertaken or road laid or  repaired  or
\ntrenches dug would fall within the definition of “industry”.\n<\/p>\n
                55.    Adopting  the  above  said  reasoning  applied  to  the
\nconstruction of  a  railway  line  carried  on  by  the  Government  of  India
\norganization,  as  well  as  laying  of  roads by the Municipal Corporation of
\nDelhi, to the facts of this case, it will have to be held that the maintenance
\nof road and the allied activities  which  were  carried  out  by  the  ‘  Gang
\nMazdoors’  in  a  particular  stretch  of  road  with the aid of certain tools
\ncoupled with the nature of job performed by them would  certainly  make  it  a
\n‘manufacturing  process’  carried  out in a fixed site and thereby bringing it
\nwithin the four corners of the definition of ‘  industrial  establishment’  as
\ndefined under Chapter V(B) of the Industrial Disputes Act.\n<\/p>\n
                56.  Having regard to such nature of job performed by the Gang
\nMazdoors  in  the  Department of Highways, we have no difficulty in reaching a
\nconclusion  that  such  industrial  activity  was  separable  from  the  Regal
\nfunctions  of  the  State and thereby the application of the provisions of the
\nIndustrial Disputes Act<\/a> automatically comes into play.\n<\/p>\n
                57.  The above said conclusion of ours is  also  supported  by
\nthe very  stand  taken  by  the  State in G.O.Ms.No.160 dated 5-9-2002.  While
\ndiscussing as to what are the distinct features as  between  a  sovereign  and
\nnon-sovereign  functions,  earlier,  we  pointed  out that the Hon’ble Supreme
\nCourt in various decisions made it clear that a sovereign function  is  always
\nan ‘inalienable’  one.   Therefore, when the action of the State in abolishing
\nthe posts of Gang Mazdoors came to be made under G.O.Ms.No.160, dated 5-9-202,
\nwe find in para 5 of the said Government Order, the  State  Government  itself
\nstated  that  while the salary part of the expenditure on Gang Mazdoors was on
\nthe high side, the maintenance of the said highways  can  be  carried  out  by
\nentrusting  the  same  with  the  private contractors by formulating a scheme.
\nTherefore, while the State Government wanted to  abolish  the  posts  of  Gang
\nMazdoors,  in the same breadth, it decided that such works which were hitherto
\ncarried on by the Gang Mazdoors could be entrusted to private contractors  and
\nthereby,  it  was  virtually,  admitted  by  the  State  that  the job of road
\nmaintenance was not inalienable.  In other words, by its own admission in  the
\nimpugned  Government  Order, namely, G.O.Ms.No.1 60, dated 5-9-2002, the State
\nGovernment tacitly admitted that the job of Gang  Mazdoors  could  be  equally
\nperformed by private parties by entering into separate contracts.  When such a
\nposition  is  indisputably  accepted  by  the  State  Government,  there is no
\ndifficulty in holding that the job of a Gang Mazdoor for maintaining the  road
\ncan  never  be  characterised as a sovereign function of the State in order to
\nexclude the same from the application of the Industrial  Disputes  Act<\/a>.    We,
\ntherefore,  hold  that  the  provisions  of  the  Industrial  Disputes Act<\/a> are
\napplicable to the establishment, viz., the Department of Highways of the State
\nof Tamil Nadu, dealing with the construction and maintenance of roads and  the
\nGang  Mazdoors  who  were  employed in such maintenance work, were all workmen
\nunder the  provisions  of  the  Industrial  Disputes  Act<\/a>.    The  above  said
\nconclusion leaves us to the consequential question as to whether there was any
\nviolation  of  the provisions of Industrial Disputes Act<\/a> in order to grant the
\nnecessary relief to the Gang Mazdoors.\n<\/p>\n
                58.  On this question, Ms.R.Vaigai, learned counsel  appearing
\nfor  the  petitioners,  contended  that the various orders of termination were
\nissued after the issuance of G.O.Ms.No.160, dated 5-9-2002, that while issuing
\nthe said orders of termination, none of the provisions of Industrial  Disputes
\nAct<\/a>, which required compliance were taken into account or complied with.\n<\/p>\n
                59.  The learned counsel contended that the termination orders
\nissued  to  9728  Gang  Mazdoors would amount to retrenchment as defined under
\nSection 2(oo)<\/a> of the Industrial Disputes Act, that in the light  of  the  fact
\nthat  such  retrenchment  related to an industrial establishment in which more
\nthan one hundred workmen were employed on an average per working day  for  the
\npreceding  twelve  months  to  the  date  of retrenchment, Chapter V- B of the
\nIndustrial Disputes Act also get attracted.  The learned counsel would further
\ncontend that inasmuch as, no  prior  permission  of  the  Government  or  such
\nauthority  as  stipulated under Section 25-N<\/a> (2) falling under Chapter V-B had
\nbeen obtained and further since no  retrenchment  compensation  as  prescribed
\nunder  Section  25-F<\/a> was also paid, the whole lot orders of termination issued
\nto 981 3 Gang Mazdoors would become ab initio void.\n<\/p>\n
                60.  As far as the non-compliance of  the  various  provisions
\ncontained  in  Chapter  V-B of the Industrial Disputes Act or 25-F and 25-N of
\nthe said Act, the same is not in  controversy.    The  total  number  of  Gang
\nMazdoors  who  came  to be terminated by identical orders of termination dated
\n7-9-2002 pursuant to G.O.Ms.No.160, dated 5-9-2002 is concerned, the  same  is
\nalso not  in  dispute.    In  such  factual  situation, there is no more to be
\nexamined as to the controversy centering around the above said legal position.
\nWhen once the State Government took the  stand  that  the  provisions  of  the
\nIndustrial Disputes Act<\/a> were not applicable and when the non-compliance of the
\nvarious  stipulations  contained in either Chapter V-B or Section 25(F)<\/a> of the
\nIndustrial Disputes Act cannot also be disputed, it will have to be inevitably
\nheld that the non-employment of the entire lot of Gang Mazdoors which squarely
\nfall within the definition of Section 2(oo)<\/a> of the Industrial Disputes Act was
\nwholly illegal and consequently the only other question to be considered as to
\nwhat is the relief to be granted to the Gang Mazdoors?\n<\/p>\n
                61.  Before going into the above said question, we  feel  that
\nthe  additional question now raised on behalf of the State in the present Writ
\nPetitions, i.e., “whether the very employment of  the  Gang  Mazdoors  was  in
\naccordance  with law and whether such employment should be held to be void and
\ntherefore, such an illegal appointment can never be  restored  in  these  Writ
\nPetitions?” needs examination.\n<\/p>\n
                62.  The above said contention is based on the submission that
\nthe  initial  induction  of the Gang Mazdoors itself was contrary to the rules
\nand if that be so, accepting their claim would result in an  illegality  being
\ngiven a  seal  of  approval  or  restoration  of  an  illegal  action.  It was
\ncontended that G.O.Ms.No.371 itself was contrary to  the  rules  framed  under
\nArticle  309<\/a>  of  the  Constitution  and  it  was  not an acceptable system of
\nselection.  It was further contended that the exemption of Employment Exchange
\nrule was not made prior to the paper publication calling for the applications.
\nIt was also contended that the power under Rule 48 of the Tamil Nadu State and
\nSubordinate Service Rules cannot be invoked  for  issuing  the  relaxation  of
\nRules 4  and  5  of the Basic Recruitment Rules.  It was, therefore, contended
\nthat the original appointment itself was a nullity.\n<\/p>\n
                63.  In support of the above said  submissions,  reliance  was
\nplaced  upon  the judgment reported in “(1997)2 SCC 1 (ASWANI KUMAR AND OTHERS
\nversus STATE OF BIHAR AND OTHERS),  1973(2)  LLJ  180  (T.C.SREEDHARAN  PILLAI
\nversus  STATE  OF  KERALA  AND  OTHERS),  AIR  1992  SC 789 (DELHI DEVELOPMENT
\nHORTICULTURE EMPLOYEES’ UNION versus DELHI ADMINISTRATION, DELHI AND  OTHERS),
\nAIR  1966  SC  828 (GADDE VENKATESWARA RAO versus GOVERNMENT OF ANDHRA PRADESH
\nAND OTHERS), 2004 Wr.L.R.434 (UNION OF INDIA, UNION TERRITORY OF  PONDICHERRY,
\nREP.  BY  THE  CHIEF SECRETARY TO GOVT.  AND TWO OTHERS versus ILANGO, ETC.,),
\n2004(3) CTC 549 (STATE OF UTTARANCHAL, THROUGH COLLECTOR, DEHRADUN AND ANOTHER
\nversus AJIT SINGH BHOLA AND  ANOTHER)  and  2002(4)  CTC  385  (L.JUSTINE  AND
\nANOTHER versus THE REGISTRAR OF COOP.SOCIETIES, CHENNAI AND TWO OTHERS)”.\n<\/p>\n
                64.   In the judgment reported in “(1997)2 SCC 1 (ASWANI KUMAR
\nAND OTHERS versus STATE OF BIHAR  AND  OTHERS)”,  the  Hon’ble  Supreme  Court
\nconsidered the appointment of certain employees by the Chairman of a Selection
\nCommittee, which appointments were over and above the posts which were created
\nto implement  the  scheme in different categories.  The Hon’ble Supreme Court,
\nas a matter of fact,  found  that  while  the  budgeted  expenditure  was  for
\nrecruitment  of 2250 employees in the sanctioned posts, the excess recruitment
\nof 6000 employees by the Chairman of the  Selection  Committee  without  there
\nbeing  any  vacancies to receive them was wholly unauthorised, incompetent and
\nvoid.  It was also found that the whole lot of recruitment was in violation of
\nestablished  norms  and  procedure  for  recruiting  Class-III  and   Class-IV
\nemployees as  laid  down  from  time to time.  It was ultimately held that the
\ncandidates appointed in an unauthorised manner against non-existing  vacancies
\ncan  neither  be  confirmed  nor  regularised inasmuch as the very appointment
\nitself was a nullity.\n<\/p>\n
                65.  From the Judgment reported  in  “1973(2)  LLJ  180  (T.C.
\nSREEDHARAN  versus  STATE OF KERALA AND OTHERS)”, the Full Bench of the Kerala
\nHigh Court, while dealing with Rule 39 of the  Kerala  State  and  Subordinate
\nService  Rules  which  is  analogous  to  Rule  48 of the Tamil Nadu State and
\nSubordinate Service Rules, upheld the validity of the said Rule, rejecting the
\nvarious contentions as regards the pitfalls of the said rules in the event  of
\nthe State Government invoking the said Rule.  However, the Full Bench took the
\nview that the action of the Government in passing a Government Order, whereby,
\nit sought to restore the rank of all the Assistants who joined the Secretariat
\nbetween  17-1  2-1958  and 13-11-1963 and who were superseded by their juniors
\nfor promotion to Grade I for want of test qualification, was not a justifiable
\nbasis for a classification inasmuch as there was no time fixed for the persons
\nconcerned to acquire the test qualification and get promoted  to  Grade  I  in
\norder to be eligible for the benefit of restoration.\n<\/p>\n
                66.   In  the  judgment  reported  in  “AIR 1992 SC 789 (DELHI
\nDEVELOPMENT HORTICULTURE EMPLOYEES’ UNION versus DELHI  ADMINISTRATION,  DELHI
\nAND OTHERS)”, the Hon’ble Supreme Court while holding that employment given to
\ncertain  persons  under  the  schemes which were evolved to provide income for
\nthose who were below the poverty line and particularly during the periods when
\nthey are without any source of livelihood, such employment cannot be  extended
\nto the level of ultimate regularisation.  In that context, the Hon’ble Supreme
\nCourt  also  expressed  its  displeasure  as  to  the manner in which, several
\nrecruitments  were  made  de-hors  the   Employment   Exchanges   which   were
\ncharacterised  illegal  employment  market  and  the recruitments made in such
\ncases or characterised as  back  door  entry.    In  fact,  the  question  for
\nconsideration  in  the  said  judgment  was as to whether the persons employed
\nunder Jawaharlal Rojgar Yojana scheme,  can  seek  for  regularisation  merely
\nbecause they  have  put  in  240  days  of service.  The Hon’ble Supreme Court
\nrejected the claim of such persons.\n<\/p>\n
                67.  In the judgment reported  in  “AIR  1966  SC  828  (GADDE
\nVENKATESWARA RAO versus GOVERNMENT OF ANDHRA PRADESH AND OTHERS)”, the Hon’ble
\nSupreme  Court  held as a proposition of law that after setting aside an order
\nof the Governor would result in restoration of an  illegal  order,  the  Court
\nshould   not   exercise   its   extraordinary   discretionary  power  in  such
\ncircumstances.  Similar position  was  stated  in  the  judgment  reported  in
\n“2004(3)  CTC  549  (STATE  OF  UTTARANCHAL,  THROUGH  COLLECTOR, DEHRADUN AND
\nANOTHER versus AJIT SINGH BHOLA AND ANOTHER)”.\n<\/p>\n
                68.  In the judgment reported in “2004  Wr.L.R.434  (UNION  OF
\nINDIA, UNION  TERRITORY  OF PONDICHERRY, REP.  BY THE CHIEF SECRETARY TO GOVT.
\nAND TWO OTHERS versus ILANGO, ETC.,)”, the Division Bench of  our  High  Court
\napplied the law laid down by the Hon’ble Supreme Court reported in AIR 1990 SC
\n789  in  respect  of  a  claim  made by temporary employees of the Legislative
\nAssembly  Department  of  Government  of  Pondicherry  whose   services   were
\nterminated   as  their  services  were  not  recruited  applying  the  regular
\nrecruitment rules not in sanctioned posts.\n<\/p>\n
                69.  As far as the other Division  Bench  of  our  High  Court
\nreported  in  “2002 (4) CTC 385 (L.JUSTINE AND ANOTHER versus THE REGISTRAR OF
\nCOOP.SOCIETIES, CHENNAI AND TWO OTHERS)”, that was a case of various employees
\nemployed in different co-operative  societies  at  different  points  of  time
\nwithout reference to Employment Exchanges and without observing the conditions
\nregarding the educational qualifications and technical qualifications relating
\nto  co-operative  training  and  beyond  the  prescribed  cadre strength, were
\ndeclared as illegal appointments and that such appointments cannot  be  upheld
\nin  exercise  of  the  discretionary  jurisdiction  under  Article  226<\/a> of the
\nConstitution.  It was further held that mere completion of 480 days of service
\nof those employees will not make them eligible to invoke the provisions of the
\nTamilnadu  Industrial  Establishments  (Conferment  of  Permanent  Status   to
\nWorkmen)  Act<\/a>  1981,  inasmuch  as,  their  appointment itself was illegal and
\nunauthorised.\n<\/p>\n
                70.  The above said Division  Bench  judgment  has  also  been
\nupheld  by  the  Hon’ble  Supreme Court in Civil Appeal No.1413 of 2003, etc.,
\ndated 28-7-2004.  Before the Division Bench, G.O.Ms.No.86 dated 12-3-200 1 was
\nthe subject matter of consideration.   Under  the  said  G.O.,  exemption  was
\ngranted by the Government in regard to the condition relating to the statutory
\nobligation  on the part of the co-operative societies to notify the Employment
\nExchange as regards the existing vacancies.    While  dealing  with  the  said
\nissue,  the  Division  Bench  held  that  G.O.Ms.No.86 dated 12-3-2001 got the
\neffect of only authorising regularisation of  the  employees  for  the  period
\nbetween  8-7-1980  to  11-3-20  01  exempting  the  notification of Employment
\nExchanges.  The Division Bench, therefore, held that  such  exemption  granted
\ncannot  be  extended  to the extent of violating Sub Rule 1 of the Rule 149 of
\nthe Tamil Nadu  Cooperative  Societies  Rules,  which  require  certain  other
\nrequirements to  be  satisfied  before  making  any fresh recruitment.  It was
\ntherefore, held that in the event  of  those  employees  recruited  between  8\n<\/p>\n
-7-1980  and  11-3-2001  in  the various co-operative societies satisfying all
\nother requirements such as existence of vacancies,  qualifications,  etc.,  by
\nvirtue   of  G.O.Ms.No.86  dated  12-3-2001,  the  requirement  informing  the
\nvacancies to the Employment Exchange need not be taken cognizance of.    While
\nconsidering  the  said  issue, the Hon’ble Supreme examined the question as to
\nwhether the State had the requisite authority to direct regularisation of  the
\nemployees  of  the  co-operative societies by reason of the G.O.Ms.No.86 dated
\n12-3-2001.  Ultimately, the Hon’ble Supreme Court took the view  that  neither
\nSection  182<\/a>  or  1 70 of the Co-operative Societies Act<\/a> or Article 162<\/a> of the
\nConstitution would enable the State Government to issue such an  exemption  as
\nhas been granted in G.O.Ms.No.86 dated 12-3-2001.  Ultimately it was held that
\nif  the State had no power to issue the said G.O.Ms.No.86 dated 12-3-2001, the
\nsame must be held to be a nullity.  The  Hon’ble  Supreme  Court,  ultimately,
\nupheld the order of the Division Bench.\n<\/p>\n
                71.  In the additional submission now made, the State wants to
\nvirtually attack its own orders on the ground that the same does not stand the
\nscrutiny of  statutory  provisions.    The  attack was mainly directed towards
\nG.O.Ms.No.184 dated  29-5-1997  and  G.O.Ms.No.371  dated   19-8-1997.      In
\nG.O.Ms.No.184   dated   29-5-1997,  the  requirement  of  staff  strength  was
\ndetermined at 14,872 and after taking note of the already filled up posts, the
\nvacancy position was determined at 9813.  It was also decided  to  remove  the
\nban on  recruitment as made in G.O.Ms.No.8 15 dated 5-6-1992.  As on that date
\nabout 764 persons were working on daily  wage  basis  and  their  service  was
\ndirected to  be regularised.  It was further directed to fix the salary of the
\nGang Mazdoors to be recruited at a sum of Rs.1500\/- in the first year  and  to
\nfix them  in the time scale from the second year.  Necessa ry additional funds
\nrequired to an extent of about Rs.15 crores was also directed to be allocated.
\nThe said Government Order was issued after  getting  the  concurrence  of  the
\nFinance Department   as   per   its   communication  dated  29-5-19  97.    In
\nG.O.Ms.No.371 dated 19-8-1997, while prescribing the procedure for recruitment
\nin respect of the vacancies created under G.O.Ms.  No.184 dated 29-5-1997, two
\nvital exemptions came to be granted.  The said exemptions related to notifying
\nall the vacancies to the Employment Exchange and also age  relaxation.    Both
\nthe  requirements  were contemplated under the Tamil Nadu Basic Service Rules.
\nThe exemption came to be granted by invoking general Rule 48 of the Tamil Nadu
\nState and Subordinate Services Rules.\n<\/p>\n
                72.  Under Rule 5(1) of the Special Rules for Tamilnadu  Basic
\nService,  any  candidate  for  appointment by direct recruitment to any of the
\nposts other than those in Clauses I and II must not have completed 30 years of
\nage on the date of appointment.  Under Rule 4(a), the manner of  selection  of
\ndirect  recruitment  has  been  provided,  by  which, the appointing authority
\nshould call for panel  of  names  from  the  Employment  Exchanges  concerned,
\ninforming  that  office,  of  the  anticipated  vacancies of the posts and the
\nqualifications prescribed for such posts.    It  also  provides  that  if  the
\nappointing  authority  finds  that none of the candidates in the panel sent by
\nthe Employment Exchanges is suitable for appointment, he can seek for a second
\nlist from the Employment Exchange.    Only  in  the  event  of  the  concerned
\nEmployment  Exchange expressing its inability to sponsor qualified candidates,
\nthe appointing authority can resort to make such other appointments after duly
\ninforming his immediate superior as well as  concerned  Employment  Exchanges.
\nRule  48  of  the  Tamil  Nadu  State  and Subordinate Rules enables the State
\nGovernment to grant exemptions.  For better appreciation of the said Rule, the
\nsame requires extraction:\n<\/p>\n
        “48.  Notwithstanding anything contained, in these  rules  or  in  the
\nspecial  rules,  the  Governor  shall  have power to deal with the case of any
\nperson or class of persons serving in a civil capacity under the Government of
\nTamil Nadu or of any person who has or of any class of person who have  served
\nas  aforesaid  or  any can didate or class of candidates for appointments to a
\nservice in such manner as may appear to him to be just and equitable;\n<\/p>\n
        provided that, where any such rule is applicable to the class  of  any
\nperson  or  class  of  persons, the case shall not be dealt with in any manner
\nless favourable to him or them than that provided by that rule.”\n<\/p>\n
                73.  A close reading of Rule 48 of the Tamil  Nadu  State  and
\nSubordinate  Services Rules read with Rule 4 and 5(1) of the Special Rules for
\nTamil Nadu Basic Service, it can be seen that there is  scope  for  the  State
\nGovernment  to  pass  such  orders  which  is  required under certain specific
\ncontingencies.  Mr.A.L.Somayaji, learned senior counsel, contended  that  what
\nis  provided  under Rule 48 would be applicable only to any person or class of
\npersons who are already in the service of the State.  From a  reading  of  the
\nabove  said  rule,  we  are  unable to accept the said contention so raised on
\nbehalf of the state.  In fact, the expressions, “….   or  any  candidate  or
\nclass  of candidates for appointment to a service in such manner as may appear
\nto him to be just and equitable” makes it clear that the power vested with the
\nGovernor of the state to pass appropriate orders which would appear to him  as
\njust  and  equitable  irrespective of any specific rule contained in the State
\nand Subordinate Rules as well as Special Rules for Tamil Nadu  Basic  Servants
\neven  in  regard to any appointments to be made afresh into the service of the
\nstate.  Therefore, we are satisfied that under Rule 48, the  Governor  of  the
\nState  had  every  power  to  grant  such  exemptions  that are required under
\nequitable and just considerations to exempt any of the stipulations  contained
\neither  in the State and Subordinate Service Rules or the Special Rules of the
\nTamil Nadu Basic Servants.  When the Government Orders  which  are  now  under
\nattack  by  the  very  State Government which issued the above said Government
\nOrders, viz., G.O.Ms.No.186 dated 29-5-1997 as well as G.O.Ms.No.   371  dated
\n19-8-1997  are  perused,  we  find  that  the  exemptions  as  regards the age
\nrelaxation under Rule 5(1) as well as the requirement of notification  through
\nEmployment  Exchange under Rule 4 came to be granted for certain reasons which
\nare specifically referred to in the very same Government Orders.\n<\/p>\n
                74.  A perusal of the G.O.Ms.No.184 dated  29-5-1997  and  371
\ndated  19  -8-1997  disclose  that  the whole exercise of ascertaining the job
\nstrength was made with a view to improve the roads of the State  Highways  and
\nalso their continued maintenance.  As far as the Highways are concerned, there
\ncan  be no two opinion that in the light of manifold increase in road traffic,
\nboth light motor vehicles, as well as, heavy motor vehicles, there is imminent
\nneed for not only improving the present road facilities provided, but also day
\ntoday maintenance of those Highways.  Therefore,  the  attempt  of  the  State
\nGovernment  in  making  a  study  as to the job requirement on this aspect can
\nnever be belittled as it was done in the interest of the public at large.   In
\nthat  view,  when  the said G.O.Ms.No.184 dated 29-5-1997 is analysed, we find
\nthat by virtue of the recommendations of the committee constituted as early as
\nin the year 1982, a creation of 10634 posts had  been  made  long  before  the
\nissuance of the above said Government Orders.  As on that date, when the above
\nsaid  Government  Order came to be issued out of 10634 posts, about 5575 posts
\nwere lying vacant.  As the earlier study was  made  for  more  than  a  decade
\nbefore,  on  a fresh look by the Highways Department, a further requirement of
\n4238 posts was noted and that is how the creation of 9813  posts  came  to  be
\nmade under  G.O.Ms.No.184  dated 29-5-1997.  In fact, as per the report of the
\nCommittee of the year 1982, the requirement of Gang Mazdoors was fixed as  two
\nMazdoors for  every  8  kms  length  of  road.  It was further stated that the
\nrequirement of exemption for recruitment was needed inasmuch as, it  was  felt
\nthat  the  recruitment  has  to be made from among the persons available along
\nside the highways in order to ensure that such  persons  attend  to  the  road
\nmaintenance without  fail.    In  other  words,  the  purport  of granting the
\nexemption for recruitment through Employment Exchange  was  to  rule  out  the
\npossibility  of  any  person  from  any distant area seeking for employment by
\nvirtue of the registration in the Employment Exchange and that such employment
\nif ultimately made may not serve the purpose as the person concerned  may  not
\nmake himself  available  for  maintenance  of  the road.  Therefore, the whole
\npurport of granting exemption for the recruitment through Employment  Exchange
\nwas  stated  to  be  for  ensuring  the presence of the concerned Gang Mazdoor
\nthroughout his service and that he really maintains the road in good condition
\nat all times and thereby the moment of the  vehicular  traffic  is  unaffected
\nunder any  contingencies.    It was also noticed that such a move would enable
\nthe local villagers to secure employment which would  incidentally  provide  a
\nsource of  livelihood  for  such  poor  villagers.   It was on that basis, the
\nnecessary relaxation in the age limit from 30 to 35 in a  uniform  manner  was
\ncontemplated and came to be made.  Thus, for the various reasons which weighed
\nwith  the  State  Government  at  the  relevant  point of time, the above said
\nG.O.Ms.No.18 4 dated 29-5-1997 and G.O.Ms.No.371 dated 19-8-1997  came  to  be
\nissued  providing  for  the  recruitment of 9813 Gang Mazdoors by granting the
\nrequired exemption to Rule 4 and 5(1) of the Special Rules for Basic Servants.
\nIn such circumstances, we are of the view that the exemption so granted cannot
\nbe held to be wholly arbitrary or unreasonable or came to  be  issued  without
\nnecessary power vested with the State Government.\n<\/p>\n
                75.   In the above said circumstances, when the contention now
\nraised on behalf of the State is considered, we are constrained to state  that
\nthe  State  Government  in  its  desperate  attempt  to  sustain the wholesale
\nabolition of Gang Mazdoors, has taken the extreme stand of disowning  its  own
\nGovernment  Orders  which  came  to be issued after due deliberations with the
\navowed object of not only providing employment to the needy, but also  in  the
\nlarger interest  of  the  general  public.  We are unable to refrain ourselves
\nfrom making such an observation also for the reason that  such  a  ground  was
\nnever  stated  by the State Government when the subsequent G.O.Ms.No.160 dated
\n5-9-2002 came to be issued for abolition of the posts of Gang  Mazdoors.    In
\nG.O.Ms.No.160  dated  5-9-2002,  the  only  reason  given  was  that after the
\nrecruitment of Gang Mazdoors, after the year 1997, the salary expenditure rose
\nto Rs.75 crores per year  which  additional  expenditure  can  be  avoided  by
\nentrusting  the  job of road maintenance with private contractors by drawing a
\nscheme.  While scrutinising  the  present  G.O.Ms.No.160  dated  5-9-2002,  by
\nwhich,  the  abolition  of  the posts of existing Government Orders came to be
\nmade, we are unable to find  any  supporting  material  either  in  the  reply
\nstatement  filed  by  the  State  Government  before  the State Administrative
\nTribunal or before this Court  as  to  what  was  the  compelling  constraints
\nvis-a-vis  the  imminent  requirement of proper maintenance of the highways in
\norder to resort to total abolition of the existing Gang Mazdoors.\n<\/p>\n
                76.  On this respect, when the reply statement  filed  by  the
\nState  Government before the Tribunal is perused, we only find the statistical
\nfigures relating to the salary expenditure of Gang Mazdoors,  as  between  the
\nyear 1996-1997  to  2001-2002.    It  was  attempted  to point out that as the
\nexpenditure was incurred by way  of  work  charged  establishments,  the  fund
\nallocated  for  such  work charged establishments by virtue of the increase in
\nengagement of Gang Mazdoors in the year 1997 resulted in a substantial part of
\nthe fund allocated to have been eaten away by way of salary payment alone.  It
\nwas pointed  out  that  while  the  percentage  of  expenditure  on  materials
\nvis-a-vis,  the  establishment component was 52% in the year 1996-97, the same
\ngot reduced to 11% in the year 2001-2002.\n<\/p>\n
                77.  In the first place, it will have to be stated that it  is
\nnot  the  case  of  the  respondent  State  that  after 1996-97, there was any
\nsubsequent increase in the recruitment of Gang Mazdoors and that that resulted
\nin payment of higher amount by way of salary and other allowances to the  Gang
\nMazdoors.  In  fact,  that was not the case of any of the parties.  Therefore,
\nthe strength of  the  Gang  Mazdoors  made  pursuant  to  G.O.Ms.No.184  dated
\n29-5-1997  and  G.O.Ms.No.371  dated  19-8-1997 remained constant from 1996-97
\nonwards till the  posts  came  to  be  abolished  under  G.O.Ms.No.160,  dated
\n5-9-2002.   If  the raise in the salary component was due to spiralling prices
\nof the commodities and consequent revision of wages,  for  the  high  cost  of
\nsalary structure,  the  Gang  Mazdoors  cannot be blamed.  It is not for us to
\nadvise the State Government as to in what manner the requirement of  materials
\nis  to  be met by way of making necessary fund allotment, but on that score it
\ncan never be held that there was any lack of performance by the Gang  Mazdoors
\nin  the course of discharge of their duties or for that matter, their services
\nare to be dispensed with in an unceremonial manner as has  been  done  by  the
\nState Government under the G.O.  Ms.No.160, dated 5-9-2002.\n<\/p>\n
                78.   The  sole contention of the State Government made before
\nthe Tribunal was that the abolition of posts of Gang  Mazdoors  was  a  policy
\ndecision  of  the  State,  and  the  same  can  never be questioned by any one
\nconcerned.  That apart no other valid reason was shown before the Tribunal for
\nabolishing the 9728 of Gang Mazdoors and depriving them  of  their  source  of
\nlivelihood.   It  will  have  to be remembered that it is not the case of back
\ndoor entry of Gang Mazdoors into the service of the State.  It is also not the
\ncase that any appointment was made illegally which  came  to  be  subsequently
\nsought to  be  regularised  by  issuing  certain  Government Orders.  The very
\nrecruitment came to be made by issuing specified Government Orders  and  while
\nissuing  the said Government Orders, every statutory requirement was noted and
\nwherever the exemption required the same was  also  issued,  which  exemptions
\nwere  also validly made by invoking the provisions providing for grant of such
\nexemptions.  Therefore, we are  unable  to  find  fault  with  the  manner  of
\nrecruitment  of  Government Mazdoors made in G.O.Ms.No.184 dated 29-5-1997 and
\n371 dated 19-8-1997.\n<\/p>\n
                79.  It is of course submitted by the learned Advocate General
\nas well  as  Mr.A.L.Somayaji,  learned  senior  counsel  that  the  method  of
\nselection  of selecting the persons on the basis of draw of lots is unknown to
\ncivil service jurisprudence and cannot  be  approved.    Even  though  such  a
\ncontention  may  appear  to  be attractive, we do not think the State can take
\nadvantage of such submissions made for the first time in course of the hearing
\nof the Writ Petitions in the High Court.  It has to be remembered that  though
\nthe  appointments  through  such method of selection had been made in the year
\n1997, the candidates, who had not been selected, apparently had  no  grievance
\nat that stage and the selection had not been challenged by any perso n at that
\nstage.   Therefore,  it  is not open to the State to rake up such questions at
\nthis stage as an answer to the contentions raised by the Writ Petitions.\n<\/p>\n
                80.  The present attempt of the State  Government  to  condemn
\nthe  above said Government Orders without any sound legal basis is alone to be
\ncondemned.  Such a stand of the State Government can never be  allowed  to  be
\ncanvassed  as otherwise, there would be no consistency at all in the action of
\nthe State Government in any of its welfare measures which were pursued in  the
\ninterest of the public at large.  It is difficult to fathom the motive and the
\nlogic  of the manner in which the State Government seeks to attack the earlier
\nGovernment Orders of 199 7.  We are unable to appreciate the stand  now  taken
\nby the  State  Government  for the first time in these proceedings.  It is not
\nknown why such a stand was never put forth when the case was  disposed  of  by
\nthe State  Administrative  Tribunal.    It  can only be said that the State is
\ndesperate in its attempt to sustain its  G.O.Ms.No.160,  dated  5-9-20  02  in
\nabolishing the 9728 posts of Gang Mazdoors.  By the imprudent act of the State
\nGovernment,  it  may  have  to  now shell out a substantial sum by way of back
\nwages alone to the Gang Mazdoors which would make a serious  inroad  into  the
\nexchequer of the State.\n<\/p>\n
                81.  So far as the decisions relied upon by Shri A.L.Somayaji,
\nlearned  senior  counsel,  it  will have to be stated that all those decisions
\ncame to be rendered  in  a  different  set  of  facts  and  circumstances  and
\ntherefore, those decisions will have no application to the facts of this case.
\nIn  the  Judgment  reported  in “(1997)2 SCC 1 (cited supra), though Selection
\nCommittee was constituted with one Dr.A.A.Mallick as Chairman to recruit  2250
\nClass  III  and Class IV employees on posts created to implement a scheme, the
\nsaid Dr.Mallick appeared to have taken advantage of the job entrusted  to  the
\nSelection  Committee  and appointed 6000 persons without any written orders of
\nappointment.  While the sanctioned posts were only 2250, the Chairman  of  the
\nSelection Committee  was  not empowered to recruit 6000 employees.  Therefore,
\n3750 employees recruited under the scheme  was  without  any  vacancies  being
\navailable.   The  Hon’ble  Supreme Court has observed that the said Dr.Mallick
\nthrew all the discretion to the winds and acted in a  most  arbitrary  fashion
\nadopting  the  principle of “pick and choose” while recruiting 6000 employees,
\nin complete violation of the established norms and procedures  for  recruiting
\nClass III and Class IV employees.  It was, in those circumstances, it was held
\nthat the appointments of the whole lot of 6000 employees as made by Dr.Mallick
\nunder  the  ‘ Tuberculosis Eradication Scheme under 20-Point Programme’ was ex
\nfacie illegal.  Therefore, the facts involved in that case has  absolutely  no
\ncomparison  to  the facts involved here where the required step right from the
\nstage of ascertaining the need for  employment,  the  strength  required,  the
\nvacancies available and the vacancies to be created were all done by following
\nnecessary procedure.  As held by us earlier, wherever exemptions were required
\nfor  fulfilling  the object to be achieved, the same was also done by invoking
\nthe relevant rules.  Further, the whole  process,  right  from  the  stage  of
\ncreation  of posts, up to the stage of filling up of the posts was not carried
\nout at the behest of any single individual in order to state  that  there  was
\nany malpractice in the matter of recruitment of Gang Mazdoors.\n<\/p>\n
                82.   At  the  risk of repetition, it is required to be stated
\nthat the State Government never put forth such a contention at any stage while
\nresisting the original applications before the State Administrative Tribunal.\n<\/p>\n
                83.  As far as the Full Bench  Judgment  of  the  Kerala  High
\nCourt  reported  in  “1973(2)  LLJ 180” (cited supra), in the first place, the
\nFull Bench upheld the validity  of  the  Rule  39  of  the  Kerala  State  and
\nSubordinate  Service  Rules  which  is  analogous to Rule 48 of the Tamil Nadu
\nState and Subordinate Service Rules.  The action of the State  Government  was
\nfound  to  be  unjustified  as  the  said  Government Order lacked in material
\nparticulars, when a general exemption came to be made in respect of  group  of
\nindividuals.   The  Full  Bench  had noted that while the Government sought to
\nrestore the  rank  of  all  Assistants  who  joined  the  Secretariat  between
\n17-12-1958  and  13-11-1963  and  who  were  superseded  by  their Juniors for
\npromotion to Grade I for want of test qualification, it  failed  to  prescribe
\nany  time limit for the persons concerned to acquire the test qualification in
\norder to get promoted to Grade I so as to  be  eligible  for  the  benefit  of
\nrestoration.   Since  such  a  vital  aspect  came  to be omitted by the State
\nGovernment while issuing the Government Order, the Full Bench  held  that  the
\naction  of  the  State Government in the issuance of the said Government Order
\ncannot be sustained.  In the facts and circumstances of the case where we have
\ndiscussed about the imminent need which necessitated the State  Government  to
\ngrant necessary relaxation as regards Rule 4 and 5(i) of the Special Rules for
\nBasic  Servants,  we  are  unable to apply the above said decision of the Full
\nBench of the Kerala High Court to the facts of this case.\n<\/p>\n
                84.  As far as the judgment reported  in  “AIR  1992  SC  789”\n<\/p>\n
(cited  supra),  in the light of what has been stated above, there is no scope
\nto characterise the recruitment  of  Gang  Mazdoors  involved  in  these  Writ
\nPetitions as  having been done in a clandestine manner.  In fact, all the Gang
\nMazdoors after their initial recruitments were placed on  probation  and  were
\nalso subsequently regularised by fixing them in appropriate time scale of pay.
\nTherefore,  what is stated in the above stated Supreme Court judgment will not
\napply to the facts of this case.\n<\/p>\n
                85.  Since as there was no illegality in  the  recruitment  of
\nGang  Mazdoors,  the  principles set out in para 17 of Judgment of the Hon’ble
\nSupreme Court reported in AIR 1966 SC 828 (cited  supra)  will  also  have  no
\napplication.\n<\/p>\n
                86.  The Division Bench Judgment of our High Court reported in
\n2004  Wr.L.R.434  (cited  supra)  related  to  the  termination  of  temporary
\nemployees whose initial entry was unauthorised and who were not given  job  as
\nagainst any  sanctioned posts.  In the circumstances, the said judgment cannot
\nalso be applied.\n<\/p>\n
                87.  As far as the Judgment  reported  in  “2004(3)  CTC  549”\n<\/p>\n
(cited  supra),  the  Hon’ble Supreme Court was pleased to hold that the Court
\nwill not exercise its discretion and  quash  an  order  which  appears  to  be
\nillegal if  its  effect  is  to revive another illegal order.  Inasmuch as, we
\nhave held that the earlier G.O.Ms.No.184 dated 29-5-1997 as well as 371  dated
\n19-8-1997 were all valid orders, there would be every justification in setting
\naside the present impugned G.O.Ms.No.160, dated 5-9-2002.\n<\/p>\n
                88.   As  far  as  the  Division  Bench  Judgment  reported in
\n“2002(4) CTC 385” (cited supra), we have  narrated  the  scope  and  ambit  of
\nconsideration  of  G.O.Ms.No.86  dated  12-3-2001  which was considered by the
\nDivision Bench of this Court, which was also upheld  by  the  Hon’ble  Supreme
\nCourt.   Having  regard  to the fact that the Hon’ble Supreme Court ultimately
\nfound that neither statutory provisions nor the Constitution enables the State
\nGovernment to relax the  Rule  relating  to  recruitment  being  made  through
\nEmployment Exchange,  the  said Government Order was held to be a nullity.  In
\nthe case on hand, we have discussed  at  length  about  the  validity  of  the
\nearlier  G.O.Ms.No.184 dated 29-5-199 7 as well as 371 dated 19-8-1997 and the
\nexemptions granted therein by tracing the power to Rule 48  of  the  Tamilnadu
\nState  and  Subordinate  Services  Rules which enables the Government to grant
\nsuch exemptions.  In such circumstances, there is no scope  for  applying  the
\nabove  referred  to Division Bench Judgment as well as the subsequent order of
\nthe Hon’ble Supreme Court to the case on hand.\n<\/p>\n
                89.  As a result of our above discussion, we conclude that the
\nvery employment of all the Gang Mazdoors concerned in  these  Writ  Petitions,
\nwas   in   accordance   with   law   and   the   relevant  Government  Orders,
\nviz.,G.O.Ms.No.184  dated  29-5-1997  and  371  dated  19-8-1997  were  passed
\ninconsonance  with  law and therefore, there is no scope to hold that the very
\nemployment was void as contended by the respondent State.\n<\/p>\n
                90.   As  far  as  the  impugned  order  of  the  Tribunal  is
\nconcerned,  the Tribunal proceeded solely on the footing that the abolition of
\nposts of Gang Mazdoors as has been done under G.O.Ms.No.160 dated 5-9-2002 was
\na policy decision of the State a e, in the absence of  any  violation  of  any
\nconstitutional  or  statutory  provisions,  there was no scope for interfering
\nwith the said Government  Orders.    The  Tribunal,  never  touched  upon  the
\nquestion  as to the violation of the provisions of the Industrial Disputes Act<\/a>
\nwhile dealing with the issue.  The Tribunal was of the view that each  of  the
\nGang Mazdoors should be paid a sum equivalent to six months salary to tie over
\nthe unpredictable situation in which they were placed.\n<\/p>\n
                91.  In the light of our conclusions, viz., that the abolition
\nof  posts and the consequent termination was in violation of the provisions of
\nthe Industrial Disputes Act<\/a>,  the  conclusion  of  the  Tribunal  based  on  a
\nsingular factor,  namely,  the  policy decision of the State cannot stand.  In
\nfact, in the judgment reported in (1976)2 SCC 844 (STATE OF HARYANA versus DES
\nRAJ), the Hon’ble Supreme Court has stated the legal position as under in para
\n7:\n<\/p>\n
        “7.  Whether a post is to be retained or abolished  is  essentially  a
\nmatter for  the  Government  to  decide.    As  long  as  such decision of the
\nGovernment is taken in good faith, the same cannot be set aside by the  Court.
\nIt is open to the Court to go behind the wisdom of the decision and substitute
\nits  own  opinion for that of the government on the point as to whether a post
\nshould or should not be abolished.  The decision to abolish the  post  should,
\nhowever,  as  already  mentioned  be  taken in good faith and be not used as a
\ncloak or pretence to terminate the services of the person holding  that  post.
\nIn case it is found on consideration of the facts of a case that the abolition
\nof  the post shall only a devise to terminate the services of an employee, the
\nabolition of the post would suffer from  a  serious  infirmity  and  would  be
\nliable to be set aside.  …..”\n<\/p>\n
                92.   Going  by  the  above said dictum of the Hon’ble Supreme
\nCourt and in the light of our conclusions made in  the  foregoing  paragraphs,
\nthere  can  be  no two opinion that the impugned G.O.Ms.No.160, dated 5-9-2002
\nwas not passed in good faith with proper application of mind and whole purport
\nof it was to simply terminate the services of Gang Mazdoors and therefore, the
\nsaid Government Order cannot be sustained.\n<\/p>\n
                93.  This leads us to the other question, namely, as  to  what
\nshould be  the  relief  granted  to  the  Gang Mazdoors?  Inasmuch as, we have
\nconcluded that the very G.O.Ms.No.160, dated 5-9-2002 abolishing the posts  of
\nGang  Mazdoors was wholly illegal and invalid in law, the consequent orders of
\ntermination issued to 9813 Gang Mazdoors are also liable to be set  aside  and
\nthey are  accordingly,  set  aside.    The  grounds  which weighed with us for
\ninterfering with the above referred to Government  Orders,  as  well  as,  the
\ntermination  is  the  gross  violation  of  the  provisions  of the Industrial
\nDisputes Act<\/a> in the matter of termination orders inasmuch as we have held that
\nthe Department of Highways in which, the Gang  Mazdoors  came  to  be  engaged
\nwould  fall  within  the  definition  of  “industry” under Section 2(j)<\/a> of the
\nIndustrial Disputes Act and that the Gang Mazdoors being “workmen”  under  the
\nprovisions  of  the  Industrial  Disputes  Act<\/a>,  in  the  light of Chapter V-B
\nrelating to the procedure to be followed in the matter  of  retrenchment,  the
\naction  of  the  State in resorting to wholesale termination without following
\nthe procedure prescribed under Chapter V-B would make the order of termination
\nnon est in law.  It is not  only  the  failure  of  the  respondent  State  in
\nfollowing  the  procedure  prescribed  under  Chapter  V-B  of  the Industrial
\nDisputes Act, but also the requirement contained under  Section  25-F<\/a>  of  the
\nIndustrial Disputes  Act  relating  to retrenchment of an employee.  As far as
\nthe non-compliance of the above referred to provisions are concerned, there is
\nno dispute at all inasmuch, as the contention of the State was that there  was
\nno  requirement  for  complying  with  any of the provisions of the Industrial
\nDisputes Act<\/a>.   When  once  such  non-compliance  of  the  provisions  of  the
\nIndustrial  Disputes  Act<\/a>  is  not  in controversy, the only other consequence
\nwould be reinstatement of the affected employees back into  the  service  with
\nall consequential benefits.\n<\/p>\n
                94.   In  this  context, a few of the judgments of the Hon’ble
\nSupreme Court are required to be referred.\n<\/p>\n
                95.  In the judgment reported in “1984(1) LLJ  110  (KARNATAKA
\nSTATE  ROAD  TRANSPORT  CORPORATION,  BANGALORE versus SHEIKH ABDUL KHADER AND
\nOTHERS, ETC.)”, the Hon’ble Supreme Court held as under in para 13:-\n<\/p>\n
        “13.  …..  Admittedly, the  requirement  of  Section  25(F)<\/a>  of  the
\nIndustrial  Disputes  Act  had  not  been  complied  with  and in these cases.
\nCounsel for the appellant did not very appropriately dispute  before  us  that
\nthe  necessary  consequence  of non-compliance of Section 25-F<\/a> of the Disputes
\nAct in case where it applied made the order of termination  void.    The  High
\nCourt,  in  our opinion, has therefore, rightly come to the conclusion that in
\nthese cases the order of retrenchment was bad and consequently it  upheld  the
\nAward  of  the  Labour Court which set aside those orders and gave appropriate
\nrelief.  ……”\n<\/p>\n
                96.  Again in the Judgment reported in “(1999)1 SCC  596  (LAL
\nMOHAMMAD AND  OTHERS versus INDIAN RAILWAY CONSTRUCTION CO.LTD.  AND OTHERS)”,
\nthe Hon’ble Supreme Court dealt with a case  of  an  establishment  to  which,
\nChapter V-B of the Industrial Disputes Act was applicable and since compliance
\nwith  the  provisions  of the said Chapter was not resorted to while effecting
\nthe retrenchment, the Hon’ble Supreme Court taking note of  Section  25(N)<\/a>  of
\nthe Industrial Disputes Act which prescribed the conditions to retrenchment of
\nthe  workmen  wherein,  under  Sub Section 7<\/a>, it has been stated that where no
\napplication for permission under  sub  Section  (1)  was  made  or  where  the
\npermission for retrenchment was refused, such retrenchment should be deemed to
\nbe  illegal  from  date  on which, the notice of retrenchment was given to the
\nworkmen and the workmen would be entitled to all the benefits as if no  notice
\nhad  been  given  to  them,  held  that  the  impugned  notices  on account of
\nnon-compliance with Section 25(N)<\/a> of the Act had no legal effect and were null
\nand void and the employer and employee relationship between  the  parties  did
\nnot  get  snapped  and  all  the appellants, therefore, continued to be in the
\nservice of the respondent despite such null and void notices.\n<\/p>\n
                97.  Therefore, having regard to the blatant violation of  the
\nprovisions  of  the Industrial Disputes Act<\/a> by the State Government itself who
\nshould have acted as a model employer, we have no hesitation in  holding  that
\nin   normal   course  all  the  employees  would  be  entitled  for  not  only
\nreinstatement, but with all back wages, continuity of service  and  all  other
\nattendant benefits.   In this context of granting the relief, one other factor
\nis also required to be stated.  The said factor would only show that financial
\nconstraints  which  was  pleaded,  though  not  established  with   acceptable
\nmaterials,  was,  not  a real or genuine factor, which stood in the way of the
\nState Government in resorting to the wholesale dismissal.\n<\/p>\n
                98.  Ms.R.Vaigai, learned counsel for the petitioners  brought
\nto  our  notice  certain  actions  of  the  State  Government in the matter of
\nemployment of about 15000 posts of Assistants and  Junior  Assistants  in  the
\nvarious  departments of Secretariat, as well as, in the various departments in
\ndifferent districts in temporary supernumerary posts by G.O.Ms.Nos.84  and  85
\ndated  4-7-2003,  which  temporary  appointments  were  disbanded  by  issuing
\nGovernment Orders in G.O.Ms.No.263 dated 21-6-2  004.    Consequent  upon  the
\ndisbandment  of various posts, the service of all the temporary Assistants and
\nJunior Assistants who were appointed on contract basis  were  terminated  with
\nimmediate effect.      Surprisingly,   by  yet  another  Government  Order  in
\nG.O.Ms.No.290 dated 23-6-2004, the Government gave a direction that the orders
\nissued in G.O.Ms.No.263 dated  21-6-2004  stood  cancelled.    Viewed  in  the
\nbackground of the above Government Orders, we can only state that the stand of
\nthe  State  Government with reference to G.O.Ms.No.184 dated 29-5-1997 and 371
\ndated 19-8-1997 is purely an after thought and a desperate attempt to  sustain
\nits  imprudent act of abolition of posts as was done under G.O.Ms.No.160 dated
\n5-9-2002.  In fact, in one of the  judgments  of  the  Hon’ble  Supreme  Court
\nreported  in “(1996)2 SCC 293 (CHIEF CONSERVATOR OF FORESTS AND ANOTHER versus
\nJAGANNATH MARUTI KONDHARE AND OTHERS), a desperate argument was put  forth  on
\nbehalf  of the State and the Hon’ble Supreme repelled the said argument in the
\nfollowing words in para 28:\n<\/p>\n
        “28.  Insofar as the  financial  strain  on  the  State  Exchequer  is
\nconcerned  which  submission  is  sought  to be buttressed by Shri Dholakia by
\nstating that in the Forest Department itself the casual  employees  are  about
\n1.4  lakhs  and  if  all  of  them were to be regularised and paid at the rate
\napplicable to permanent workmen, the financial involvement  would  be  in  the
\nneighbourhood of  Rs.300  crores -a very high figure indeed.  We have not felt
\ninclined to bear in mind this contention of Shri Dholakia as the same as  been
\nbrought out almost from the hat.  The argument relating to financial burden is
\none of  despair  or  in terrorem.  We have neither been impressed by the first
\nnor frightened by the second inasmuch as we do not intend that the view to  be
\ntaken  by  us  in  these  appeals  should apply, proprio vigore, to all casual
\nlabourers of the Forest Department or any other Department of the Government.”\n<\/p>\n
                                (Emphasis added)<\/p>\n
                99.  Therefore, on an over all analysis of the  stand  of  the
\nState  Government,  we find that its various submissions are without any sound
\nbasis and the challenge of the Gang Mazdoors to their  orders  of  termination
\nbeing  well  justified,  in normal course, there can be no other relief to the
\nsaid Gang Mazdoors except directing the respondent State to reinstate  all  of
\nthem with continuity of service and all other attendant benefits and even full
\nback wages.  Yet we have some hesitation regarding payment of full back wages,
\nnot  because  we have any doubt regarding the illegality and imprudence of the
\nState’s a misadventure but because of the financial impact.    The  State  was
\nobviously  at fault and the individuals (albeit in thousands) were the hapless
\nvictims.  However, the difficult and delicate  question  remains-  should  the
\nentire burden  be borne by the entire public of the State?  It is obvious that
\nthe State Government had made some alternate arrangements for  maintenance  of
\nroads by  incurring  certain  expenditure.  If the employees would be paid the
\nentire back wages, obviously,  there  would  be  huge  burden  on  the  public
\nexchequer.   Even  though  the  State  Government  is  responsible  for such a
\nsituation and not the employees, having regard to the facts and  circumstances
\nof  the case, we feel interest of justice would be served by directing payment
\nof back wages for a period of six months, which would roughly be equivalent to
\none fourth of the entire back wages, and ordered accordingly.  We  accordingly
\ndirect  the  State  Government  to  reinstate  all  the  Gang  Mazdoors,  with
\ncontinuity of service , but with six months backwages.\n<\/p>\n
                100.  In view  of  our  above  said  direction  to  the  State
\nGovernment,  there  is  no  scope or necessity to grant any relief in the Writ
\nPetition preferred by the State as against the order of the Tribunal directing
\npayment of six months wages by way of compensation.    If  by  virtue  of  the
\ninterim  orders  of this Court any payment had been made to the Gang Mazdoors,
\nthe State is entitled to adjust the same while paying the back wages to them.\n<\/p>\n
                101.  In the result, the Writ Petitions preferred on behalf of
\nthe Gang Mazdoors  are  allowed  and  the  Writ  Petitions  preferred  by  the
\nrespondent State  in W.P.Nos.  18507 of 2003, 18993 to 18998 of 2004, 19015 to
\n19030 of 2004, 19045, 19046, 19048, 21057 to 21059 of 2004 are dismissed.\n<\/p>\n
                102.  No order as to costs.\n<\/p>\n
                103.  Consequently, all connected W.P.M.Ps.  are closed.\n<\/p>\n
Index:  Yes
\nInternet:  Yes
\nsuk
\nTo\n<\/p>\n
1.  The Secretary,
\nGovernment of Tamilnadu,
\nHighways Department,
\nSecretariat, Chennai-9.\n<\/p>\n
2.  The Chief Engineer (General),
\nHighways, Chepauk, Chennai.\n<\/p>\n
3.  The Divisional Engineer (High Ways),
\nPudukkottai.\n<\/p>\n
4.  The Registrar, Tamil Nadu Administrative Tribunal,
\nChennai-101.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court Tamil Nadu Highways Roadways … vs Government Of Tamilnadu on 8 September, 2004 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-265911","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nTamil Nadu Highways Roadways ... vs Government Of Tamilnadu on 8 September, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tamil-nadu-highways-roadways-vs-government-of-tamilnadu-on-8-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tamil Nadu Highways Roadways ... vs Government Of Tamilnadu on 8 September, 2004 - 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