Madras High Court
The Deputy General Manager ... vs The Presiding Officer on 7 April, 2021
W.A.No.903/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.A.No.903 of 2016 and
CMP.No.11588 of 2016
The Deputy General Manager (H.R.D.),
Air India, Unity Complex,
Anna International Airport,
Chennai-600 043. ... Appellant
-vs-
1. The Presiding Officer,
Central Government Industrial Tribunal-
Cum-Labour Court,
I Floor, 'B' Wing, Shastri Bhavan,
26, Haddows Road,
Chennai-600 006.
2. The Regional Secretary-Kerala,
Air India Employees' Guild,
Museum Road, Vellayambalam,
Trivandrum-695 003. ... Respondents
Writ Appeal filed under Clause 15 of the Letters Pattent against
the order dated 05.06.2012 passed in W.P.No.22966/2007 by a
learned Single Judge of this Court.
For Appellant : Mr.K.Srinivasamoorthy
For 2nd Respondent : Mr.K.M.Ramesh
1/14
W.A.No.903/2016
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
This Writ Appeal has been preferred against the order dated
05.06.2012 passed in W.P.No.22966/2007 by a learned Single Judge
of this Court, thereby declining to interfere with the award dated
04.12.2006 passed by the Presiding Officer, Central Government
Industrial Tribunal-cum-Labour Court, Chennai in I.D.No.46/2005.
2. The case of the appellant in brief is as follows:
(a) One Mr.J.N.Gopakumar was employed as a Welder in the ground
service of the Air India at Tiruvanandapuram. The trade union, i.e., the second
respondent had raised an industrial dispute regarding his absorption. The
dispute was conciliated by the Assistant Labour Commissioner (Central),
Tiruvanandapuram on 11.9.2000. A settlement under Section 12(3) was reached
between the union and the management. The concerned workman Gopakumar
was also a signatory to the said settlement. In the settlement, the following terms
were agreed between the parties :
“1.It is agreed by the management of Air India that Shri
Gopakumar, Contract Labour, will be employed on casual
basis in the Ground Services Department of Air India,
Trivandrum, without any artificial break in service, with
immediate effect.
2.Shri Gopakumar will undergo medical examination
and will be subjected to character antecedent verification from
the duly constituted authority.
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3.It is further agreed that the employment of Shri
Gopakumar as a casual worker in Air India will continue
subject to the result of medical examination and character
antecedent verification.
4.It is also agreed that if and when Air India resorts to
recruit people on permanent basis, Shri Gopakumar will be
given preference.
5.The Guild agrees that the demands in respect of the
workman Shri Gopakumar is settled fully and completely and
will not have any claim against Air India either by way of
monetary or otherwise.
6.Parties will submit the report on implementation of
this settlement to the ALC(C), Trivandrum by 20.9.2000.”
(b) In the meanwhile, Hon'ble Apex Court vide its judgment in Air India
Statutory Corporation Vs. United Labour Union and others reported in (1997)
9 SCC 377 directed regularization of all contract labours in processes where the
engagement of contract labour were abolished. The Air India had implemented
the said judgment only in respect of Mumbai and Delhi. But they ignored the
employees in South India who were on rolls on 6.12.1996 and that
J.N.Gopakumar is one such employee who denied permanency. Subsequently,
the Air India had agreed to conduct verification of antecedents and also medical
examination. Subsequent to the said exercise, the workman J.N.Gopakumar was
continued as a permanent casual labour without granting any artificial break in
his service. Even the Regional Manager at Tiruvanandapuram by his letter dated
16.2.2000 had commented the sincerity and quality of work of J.N.Gopakumar
and had recommended to the competent authority for his absorption in the
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services of the Air India. It was also mentioned in that letter that the said
Gopakumar was rendering services since the Air India started self handling
services from the year 1991. The payment of the said Gopakumar was settled
through cash vouchers.
( c) On 4.7.2001, the General Manager, Mumbai had also recommended
to the Director, HRD for approval to fill up the standard force vacancy at
Tiruvanandapuram, so as to regularize the services of Gopakumar in order to
comply with the memorandum of settlement arrived at before the Assistant
Labour Commissioner (Central), Tiruvanandapuram. It was also stated that the
said workman was engaged sufficiently for a long period for carrying out repair
works of Container dollies, pallet dollies and baggage trolleys. These works are
of permanent in nature. When a recruitment drive was made for the Engineering
department during May, 2002, the workman also applied for the same as he
possessed with required qualifications. He was called for a written examination.
Even though he had passed the written examination, he was not given any
preference for absorption as agreed in the settlement dated 11.9.2000.
Therefore, once again a dispute was raised before the conciliation officer at
Tiruvanandapuram demanding regularization of J.N.Gopakumar in the services
of the management. The conciliation proceedings ended in failure and a report
was sent to the Central Government. The Central Government through Ministry
of Labour by its order dated 2.6.2005 had referred the dispute for adjudication by
the CGIT.
W.A.No.903/2016
(d) The CGIT had registered the dispute as I.D.No.46 of 2005 and issued
notice to the management of Air India. The Air India had filed a counter
statement dated Nil (October, 2005). In the counter statement, it was stated that
the workman cannot demand regularization as a matter of right. While the Air
India case (cited supra) covered only the processes covered by the notification
dated 09.12.1976, the work done by the workman was not covered by the
notification. He was called for the written test, but he did not qualify in the said
test. Therefore, no preference can be given. It was further stated that there was
no fresh recruitment carried out for the post in which he is presently engaged.
Due to ban on recruitment for permanent post, the Air India was not in a position
to regularize his services. However, as per the terms of understanding, the
workman was continued in the work without any artificial break, but there was no
possibility of regularization of his services.
(e) The second respondent union filed a rejoinder statement dated
14.10.2005, for which the management filed an additional counter statement
dated Nil (December, 2005). The second respondent union had filed an
additional rejoinder dated 23.1.2006.
(f) In the additional counter filed by the Air India, they sought for transfer
of the case to the Tribunal at Tiruvanandapuram. The Union in its additional
rejoinder contended that it is not a case of the contract labour that there is no
W.A.No.903/2016
contract agreement between the Air India and M/s.J.N.Engineering Works and
Priya Engineering. The Air India was directed to produce contractual agreement
between the parties. Since the workman was working in the operational area,
there was no ban on recruitment in that area.
(g) Before the Tribunal, on behalf of the workman, the Regional Secretary
of the Air India Employees Guild, Kerala State was examined as W.W.1. On the
side of the management, one C.Mohandass was examined as M.W.1. While on
the workman side, 19 documents were filed and marked as Exs.W.1 to W.19, on
the side of the Air India, 7 documents were filed and marked as Exs.M.1 to M.7.
The Tribunal on the basis of the materials placed before it came to the
conclusion that the workman cannot get any regularization on the ground that the
management had agreed to give preference in his appointment. But at the same
time, it was not established before the Tribunal that the workman had failed to
qualify himself in the written examination. The management did not act as per
the terms of the settlement signed under Section 12(3) of the I.D. Act. The
management is bound to utilize the services of the workmen for the post.
Therefore, by the impugned Award dated 04.12.2006, the CGIT directed the Air
India to absorb the concerned employee into the services of the Air India from
the date of the demand, i.e., from the date of his application made before the
Assistant Labour Commissioner (Central), Tiruvanandapuram. When that award
was challenged by the Deputy General Manager, Air India, Unity Complex, Anna
International Airport, Chennai-43 before a learned Single Judge of this Court in
W.A.No.903/2016
W.P.No.22966/2007 dated 05.06.2012, the same was dismissed. Aggrieved
over the same, the present Writ Appeal has been filed.
3. Learned Counsel appearing for the appellant assailing the
impugned order argued that one of the members of the 2nd respondent Air India
Employees' Guild, Trivandrum, Kerala, namely, J.N.Gopakumar has made a
claim for regularisation with consequential monetary benefits from the date of his
absorption as casual worker at the Trivandrum Airport and the same was
allowed, without considering the legality of the claim made by the said
J.N.Gopakumar. Explaining further, the learned Counsel for the appellant
argued that J.N.Gopakumar was serving as a welder in Air India, Ground
Services Department, Trivandum since 1993. As his request for regularization
was ignored, the 2nd respondent herein, vide its letter dated 9.12.1999 raised an
industrial dispute before the Assistant Labour Commissioner (C), Trivandrum on
various dates. While so, on 11.09.2000, it was agreed by the Management of Air
India that when Air India resort to recruitment on permanent basis, the name of
Mr.J.N.Gopakumar would be given preference. In spite of the promise given for
regularization of the service of Gopakumar, again, it was ignored. Therefore,
finally, an Industrial Dispute in I.D.No.46/2005 was raised before the 1st
respondent, namely, Central Government Industrial Tribunal-cum-Labour Court,
Chennai, demanding regularization of J.N.Gopakumar in the service of the
appellant with a consequential direction to absorb him in its services w.e.f. the
date of demand with consequential monetary benefits from such date of
W.A.No.903/2016
absorption i.e. from 09.06.2004.
4. Learned Counsel for the appellant further argued that it is true that
12(3) agreement was reached between the appellant and the 2nd respondent to
give preference to Mr.J.N.Gopakumar as and when a new recruitment is
resorted. But in the present case, when there was a notification issued inviting
applications from the qualified persons to participate in the written examination to
be held on 25.08.2002 and the said Gopakumar also took part in the
examination, but he scored only 39 out of 150 marks and although he belongs
to OBC category for whom the minimum cut off mark has been fixed at 53
constituting 35% of mark, he failed to reach the zone of consideration. Since he
has secured only 39 marks out of 150 as it is far below the 53 marks, namely,
35% and in view of the fact that he has not come within the zone of
consideration, as promised by the appellant, the rule did not permit the appellant
to give such preference. The cut off per centage determined by the competent
authority, namely, the Director of Engineering was 40% for General Candidates
and 35% for SC/ST/OBC that means that out of 150 marks General Candidates
scoring 60 marks and SC/ST/OBC candidates scoring 53 marks became eligible
for personal interview. Therefore, when J.N.Gopakumar, has not even qualified
to enter into the personal interview, the question of giving preference to him will
not arise. But this factual aspect has not been placed by the appellant herein
and also by the 2nd respondent before the 1st respondent. Hence, without going
into the said aspect the learned Central Government Industrial Tribunal-cum-
W.A.No.903/2016
Labour Court, merely on the basis of the claim made by the 2nd respondent that
the appellant has given promise that preference should be given to
J.N.Gopakumar considering the fact that he has been working from 1993,
directed the appellant to give the benefit of regularization. The question of
granting the benefit of regularization would not arise since he has failed to qualify
himself for coming within the zone of consideration by securing minimum marks,
namely, 53 out of 150 marks, the award passed by the 1 st respondent herein is
liable to be set aside.
5. Adding further, the learned Counsel for the appellant argued that
even if this Court come forward to accept the case of the 2nd respondent that
Mr.J.N.Gopakumar is entitled to get regularization, he cannot get the benefit of
the said order. The reason being that he already left India and joined Qatar
Airways and drawing a salary of Rs.80,000/- p.m. Therefore, the question of
granting the benefit of regularization to the said Gopakumar is also legally
unsustainable.
6. On the other hand, learned Counsel for the 2nd respondent argued
that although the said J.N.Gopakumar left the appellant Airways and joined
Qatar Aviation Authority, his prayer is only limited and justified because he has
been making his claim for regularization only from 09.06.2004. But the said
J.N.Gopakumar had left India on 23.11.2006 and taken up employment in Qatar
Aviation Authority and was employing as an Aircraft Equipment Operator in Doha
W.A.No.903/2016
Airport. Therefore, the issue decided by the learned Central Government
Industrial Tribunal-cum-Labour Court, Chennai, which has been confirmed by
the learned Single Judge of this Court cannot be declined. The reason being
that it is only the Air India which is procrastinating the issue relating to
regularization of workman by raising all different pleas at different circumstances.
Therefore, firstly, Air India case would not apply. Secondly, though it was
contended that there was a ban on recruitment in the operational area there was
no such ban. Thirdly, the said Gopakumar having written the examination, he
has secured only 39 marks out of 150, therefore, some preference should be
given. Therefore, the present appeal is liable to be dismissed, it is argued.
7. Heard the learned Counsel on either side and we have also
perused the materials available on record carefully.
8. We find some merit on the submission of the learned Counsel for
the appellant. The reason being that when Mr.Gopakumar was working in the
appellant Air India from 1993, at the relevant point of time, he has raised
Industrial Dispute for his regularization. After raising the dispute, an agreement
was reached between the appellant and the 2nd respondent in which it was
agreed that as and when any new recruitment process is initiated, the said
J.N.Gopakumar would be given preference in giving employment. Since the
appellant has also invited applications from the eligible candidates for various
posts, it is not in dispute that the said Gopakumar has also applied for the post
W.A.No.903/2016
of Welder and took up the examination on 25.08.2002. Since the cut off mark
fixed by the competent authority was 40% for general category and 35% for
SC/ST/OBC category, ionically, out of 150 marks, 60 marks has been fixed as
cut off mark for General Category whereas 53 marks has been fixed for
SC/ST/OBC category. Therefore, the candidates, who secured 53 marks alone
is considered to be eligible for the personal interview so far as SC/ST/OBC
category is concerned. In the present case, the said Gopakumar has secured
only 35 marks out of 150 which is far below the 53 marks, namely, 35%. This
factual aspect has been completely overlooked by the learned Central
Government Industrial Tribunal-cum-Labour Court, Chennai and also the learned
Single Judge of this Court. That apart, since the said Gopakumar has already
taken up employment in Qatar Aviation by leaving Air India, no prejudice would
be caused to him by allowing the present appeal.
9. In Service Law, one of the pre-conditions seeking regularisation is
to show that the employee seeking regularization is in service continuously on
the date of passing of the regularization order which means employer and
employee relationship exists. If he is not in service prior to regularization, his
plea for regularization cannot be considered. It is well settled legal position that
an employee seeking regularization of his service should continue in the said
service on the date of his request for regularization to be considered. Applying
the same yardstick since in the present case, it appears that when
Mr.J.N.Gopakumar made a Claim Petition on 04.08.2005 before the Central
W.A.No.903/2016
Government Industrial Tribunal-cum-Labour Court, Chennai, he was in service of
the appellant Air India and during the pendency of the said Claim Petition in
I.D.No.46/2005, he had left the service of the appellant because he has taken
up employment in Qatar Aviation Authority and was drawing a salary of
Rs.80,000/- p.m. and when the writ petition was filed by the appellant herein
challenging the award dated 04.12.2006, he was not in service and even today
also, he was not in service of the appellant Air India. Therefore, this Court
cannot grant the benefit of regularization as the said J.N.Gopakumar is not in
service as on today. In this regard, the Hon'ble Supreme Court in U.P.Power
Corporation Limited and another vs.Bijli Mazdoor Sangh and others
reported in (2007) 5 Supreme Court Cases 755 has held that there cannot be a
case for regularisation without there being employee-employer relationship and
the concept of regularisation is clearly linked with Article 14 of the Constitution of
India. Secondly, when he was out of service, he appeared for the written
examination conducted on 25.08.2002 in which he became ineligible as
discussed above for personal interview as he secured only 35 marks out of 150
marks which falls below the cut off mark fixed for the candidates belonging to
SC/ST/OBC Category i.e. 53 marks.
10. In view of all the above, finding no merit in the impugned Award
dated 04.12.2006 passed in I.D.N o.46/2005 by the 1st respondent herein,
namely, Central Government Industrial Tribunal-cum-Labour Court, which was
confirmed by the learned Single Judge of this Court in W.P.No.22966/2007
W.A.No.903/2016
dated 05.06.2012, the present appeal stands allowed and the impugned order is
set aside. No costs. Consequently, connected Miscellaneous Petition is
also dismissed.
(T.R.J.,) (G.K.I.J.,)
07.04.2021
tsi
To
1. The Presiding Officer,
Central Government Industrial Tribunal-
Cum-Labour Court,
I Floor, 'B' Wing, Shastri Bhavan,
26, Haddows Road,
Chennai-600 006.
2. The Regional Secretary-Kerala,
Air India Employees' Guild,
Museum Road, Vellayambalam,
Trivandrum-695 003.
W.A.No.903/2016
T.RAJA, J.
and
G.K.ILANTHIRAIYAN, J.
tsi
W.A.No.903/2016
07.04.2021
