THE HONOURABLE SRI JUSTICE J SREENIVAS RAO
WRIT PETITION No.291 of 2016
O R D E R:
In this Writ Petition the petitioners are filed seeking Writ of Certiorari to quash the Award of the 1st respondent in I.D.No.123 of 2012 dated 06.04.2015, published in G.O.Rt.No.227 dated 20.05.2015 to the extent of the 2nd petitioner and to issue consequential direction to the 2nd respondent to regularise the service of the 2nd petitioner with all consequential benefits.
02. Heard Sri Vedula Srinivas, learned Senior Counsel appearing on behalf of the petitioners, Sri D.Jagan Mohan Reddy, learned counsel for the respondent No.2 and learned Assistant Government Pleader for Labour appearing on behalf of respondent No.1.
03. Learned counsel for the petitioner as well as learned counsel for respondent No.2 requested this Court to hear the main Writ Petition instead of deciding the vacate stay petition. With the consent of both parties, 2 main Writ Petition is being taken up for hearing under the caption of Interlocutory Stage.
3.1. Learned Senior Counsel for the petitioners submits that petitioner No.1's registered trade union is formed by the non-teaching staff of the respondent No.2- Engineering College and it was espousing the cause of the non-teaching employees of the college before the Labour Department authorities. Petitioner No.2 worked as Assistant under the Maintenance Supervisor in the said College since 2007. Initially, he was appointed as a Casual Assistant in the college by Order dated 10.01.2006 on daily wage basis and thereafter appointed as Assistant under the Maintenance Supervisor and he was paid with a consolidated salary of Rs.4,500/- per month and the appointment was for a period of one year. Subsequently, respondent No.2 had issued appointment orders to the petitioner on yearly basis dated 31.10.2007, 19.11.2008, 01.10.2009 and 01.11.2011 and given 10% hike every year. Though no separate order was passed after the order dated 01.11.2011, the petitioner No.2 continued in service as Assistant in the Maintenance Cell of the College without 3 any other benefits like scale of pay, leave encashment, annual leaves, pay revision etc. However, his pay revision was done from time to time by the respondent No.2-College Management in respect of its employees.
3.2. He further submits that the petitioner No.1- union referred demand for regularization of all those persons and payment of salaries to them vide G.O.Ms.No.153, dated 16.05.1994 and provide employment to Smt.Anuradha, wife of deceased regular employee of the respondent No.2-college on compassionate grounds. When conciliation failed, the Government referred dispute invoking the provisions under Section 10 (1) of the Industrial Dispute Act, 1947 (for short 'the Act') to the Labour Court and the same was numbered as I.D.No.123 of 2012 wherein specifically raised a dispute regarding implementation of Memorandum of Understanding dated 25.03.2004 with regard to regularization of service with regular scales on par with the Government Scales in compliance of Memo No.E4/21545/05 dated 29.10.2005 issued by the Director Technical Education and seeking compassionate appointment of Mrs.Anuradha as regular 4 employee since her husband died during the service and also payment of wages to 11 persons as mentioned in the claim statement and also raised dispute of non-payment of minimum wages to 11 workers as mentioned in the claim statement and also they are entitled for regularization on par with others.
3.3. He vehemently contended that the impugned Award passed by the Labour Court dismissing the reference is contrary to the provisions of the 'Act' and also contrary to G.O.Ms.No.153, dated 16.05.1994 issued by the Government. He further contended that during the course of cross-examination MW1 specifically admitted that pursuant to G.O.Ms.No.153 dated 16.05.1994 the respondent-college regularized the services of other employees who are juniors than the petitioners. Labour Court without properly considering the evidence on record, passed the impugned Award and the same is contrary to law.
3.4. He further contended that the Labour Court erroneously came to conclusion that the claim statement 5 was not signed by the proper person and the ID is liable to be dismissed, in the absence of any basis and evidence. Admittedly, at the instance of recognized Union only Government referred the dispute/reference to the Labour Court and the Competent Person i.e., General Secretary signed claim statement, merely because the said person was removed subsequent to filing of claim statement will not have any impact.
04. Per contra, learned counsel appearing for respondent No.1 contended that the petitioner No.1 union is claiming benefits as per G.O.Ms.No.153 and the same is not applicable to the members of the petitioner's union. As per Memorandum of Understanding dated 25.03.2004 only few persons completed five years of service and their services were regularized and as on the date of entering Memorandum of Understanding dated 25.03.2004 the members of the petitioner's union have not completed requisite years of service and they are not entitled to claim the very same benefit of regularization of services and further contended that the disciplinary proceedings were 6 pending against petitioner No.2 and he is not entitled to claim regularization.
4.1 The Labour Court after considering the contentions of respective parties, the oral and documentary evidence on record and also after hearing both parties passed the impugned Award by giving cogent findings and there is no illegality or irregularity in the said Award, and the scope of judicial review under Article 226 of the Constitution of India is very limited and the same is liable to be dismissed.
05. In support of his contentions, he relied upon following decisions:
i. State of Rajasthan and others v. Dayalal and others 1.
ii. Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare and another 2.
iii. Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and others 3.
iv. Yogesh Mahajan v. Professor R.C. Deka, Director, All India Institute of Medical Sciences 4. 1 (2011) 2 SCC 429 2 (2016) 1 SCC 521 3 (2014) 4 SCC 769 4 (2018) 3 SCC 218 7
06. Having considered the rival submissions made by respective parties and upon perusal of the material available on record, including the impugned Award passed by the Labour Court, it is undisputed fact that the petitioner's union had approached the Joint Commissioner of Labour as well as Deputy Commissioner of Rangareddy District requesting to direct the respondent No.2 to implement Memorandum of Understanding dated 25.03.2004 with regard to regularization of 11 employees services, with regular scale of pay on par with Government scales in terms of Memo No.E4/21545/2005, dated 29.10.2008, issued by the Director of Technical Education, and to provide compassionate appointment to Mrs.Anuradha, as and also other claims. When conciliation procedures failed between the petitioner No.1- union and respondent No.2, the Joint Commissioner of Labour after following due procedure of law issued proceedings No.B/3419/2012, dated 12.12.2012, submitted report to government and thereafter, government referred the dispute invoking the provisions of the Act to the Labour Court to decide the '4' points. It is 8 very much relevant to extract the said four points which reads as under:
(i). Whether the management is justified in not regularizing (11) employees as shown in the Annexure-I, in accordance with G.O.Ms.No.153 Edn. (EC) Department dated 16.05.1994 and also in compliance of Memorandum of Understanding dated 25.03.2004 between Management and Employees representatives.
(ii). Whether the management is justified in not paying salaries on par with Government scales to 12 employees in question, in compliance of Government Scales to 12 employees in question, in compliance of G.O.Ms.No.153, Edn (EC) Dept. dated 16.05.1994 and also Memo No.E4/21545/2005 dated 29.10.2005 of Director of Technical Education, A.P., Hyderabad.
(iii). Whether the Management is justified in not appointing Mrs.Anuradha as a Regular employee on compassionate grounds since her husband died during the service as it was done in similar cases earlier.
(iv). If not, to what is the relief the workmen are entitled to ?
9 The Labour Court numbered the said reference as I.D.No.123 of 2012.
07. It is revealed from the impugned Award that the petitioner No.1 filed claim statement on 27.06.2013 and the respondent No.2 filed counter denying the claim statement filed by the petitioner. On behalf of the petitioner No.1-union, WW1 was examined and Ex.W1 to W32 documents were marked, and on behalf of respondent No.2, MW1 was examined and Exs.M1 to M8 documents were marked. Labour Court after taking into consideration the pleadings of the respective parties, oral and documentary evidence on record, and also after hearing both sides, passed impugned Award on 06.04.2015 and the reference is dismissed.
08. It is very much relevant to mention here that the petitioners are claiming regularization of services of 11 employees pursuant to the MOU dated 25.03.2004 on par with other employees, though they have not completed five years of services and they are not entitled to claim the said benefit of regularization of services. The MOU entered 10 between the petitioner's union and respondent No.2- Management under the provisions of the Act and the same is binding upon the parties and the petitioners are not entitled to claim regularization of services as per G.O.Ms.No.153 and MOU dated 25.03.2004. In such circumstances, the petitioners are not entitled to deny the MOU.
09. In State of Rajasthan (supra1), Vice Chancellor, Lucknow University (supra2), Secretary to Government, School Education Department, Chennai (supra3), Yogesh Mahajan (supra4), the Hon'ble Apex Court held that though the part-employees put on long services, they are not entitled for regularization of services as they were not working against sanctioned posts. In the case on hand also petitioners are claiming regularization basing upon their long service, though they are not appointed in sanctioned posts and there are only daily wage workers. The decisions and principles laid down in the above Judgments are squarely applicable to the facts and circumstances of the present.
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10. It is very much relevant to place on record that the scope of judicial review under Article 226 of the Constitution of India is very limited to interfere with the impugned Award passed by the Labour Court. In Union of India and others v. Ilmo Devi and another 5 it was held that:
"8.4.......The High Court cannot, in exercise of the power under Article 226 of the Constitution of India, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.
8.5 Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. In the case of State of Maharashtra & Anr. Vs. R.S.Bhonde & Ors., (2005) 6 SCC 751, it is observed and held by this Court that the 5 Civil Appeals Nos.5689-5690 of 2021 decided on 07.10.2021.12
status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.
11. This Court does not find any illegality or irregularity in the impugned Award passed by Labour Court to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
12. However, it is brought to the notice of this Court by the learned counsel for the petitioner that petitioner No.2 is appointed in the year 2006 and by virtue of interim order granted by this Court on 06.01.2016 in W.P.M.P.No.351 of 2016, petitioner No.2 is continuing in service on the same terms and conditions till date. Taking into consideration the length of service rendered by the petitioner No.2, respondent No.2 is directed to consider his claim for regularization, subject to fulfillment of conditions, and pass appropriate Orders, in accordance with law, within a period of two(2) months from the date of receipt of a copy of this order.
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13. With the above directions, the Writ Petition is disposed of accordingly. There shall be no order as to costs.
As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
______________________ J.SREENIVAS RAO, J Date: 17-OCT-2023 KHRM