Madras High Court
D.Kathirvel vs The Management Of on 22 February, 2021
W.P.NOS.26479 & 31327 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
WP NOS.26479 AND 31327 OF 2017
WP NO.26479 / 2017
D.Kathirvel .. Petitioner
Versus
1.The Management of
Chairman,
Tamil Nadu Electricity Board
800, Anna Salai,
Chennai - 600 002.
2.The Presiding Officer
Industrial Tribunal, Tamil Nadu,
High Court Buildings,
Chennai - 600 104.
3.The President
Anna Thozhir Sanga Peravai
275, Avvai Shanmugam Salai,
Royapettai, Chennai - 600 014.
4.Tr.Sankaralingam .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
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praying to issue a Writ of Certiorari, to call for the records and papers from
the file of the 2nd respondent Tribunal in I.D.No.36 of 2007 and quash the
Award made therein dated 18.08.2017 insofar as the 2nd respondent
Tribunal has rejected the claim made by the petitioner Union in I.D.No.36 of
2007.
For Petitioner : Mr.K.M.Ramesh
For Respondent-1 : Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co.
For Respondent-4 : Mr.Praveen Sethia
WP NO.31327 / 2017
K.S.Sankaralingam .. Petitioner
Versus
1.The Management of Tamil Nadu Electricity Board
Rep. by its Chairman
No.800, Anna Salai,
Chennai - 600 002.
2.The Presiding Officer
Industrial Tribunal Tamil Nadu
High Court Buildings,
Chennai - 600 104.
3.The President
Anna Thozhir Sanga Peravai
275, Avvai Shanmugam Salai,
Royapettai, Chennai - 600 014.
4.D.Kathirvel .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
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praying to issue a Writ of Certiorari, to call for the records pertaining to the
I.D.No.36 of 2007 from the second respondent Tribunal and quash the
award made therein dated 18.08.2017.
For Petitioner : Mr.Praveen Sethia
For Respondent-1 : Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co.
For Respondent-4 : Mr.K.M.Ramesh
COMMON ORDER
The above writ petitions are directed against the Award dated
18.08.2017 passed by the Industrial Tribunal, Tamil Nadu, Chennai, in
I.D.No.36 of 2007.
2.The writ petitions are filed by two individuals claiming
themselves as the President of Tamil Nadu Electricity Board Anna Podhu
Tholizhalar Sangam.
3.Instead of delving into the issue as to who is the elected
President of the Union and who is entitled to maintain the writ petition, this
Court is inclined to discuss the main issue as to whether the Award passed
by the Tribunal is sustainable or not.
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4.The admitted facts are that the Tamil Nadu Electricity Board
at its initial period engaged Contract Labourers for the purpose of executing
the projects. At one point of time, the volume of the Casual Labourers,
Temporary Workers, Contract Labourers exceeded limit and therefore, the
Electricity Board decided to stop the recruitment. Thereafter,
G.O.Ms.No.1177 dated 28.11.1980 was issued for the purpose of fixing the
pre-requisite qualification for appointment to the lowest post. Accordingly,
the first respondent issued proceedings in B.P.MS (FB) No.38 dated
23.05.1986 amending the service regulations by prescribing qualification for
the post of Helper. It was decided to fill up 7000 vacancies of Helper by
direct recruitment with prescribed qualification. This was challenged by the
Contract Labourers and the Unions and also writ petitions were filed for
regularisation of the Contract Labourers. On 10.04.1990, the Hon'ble
Supreme Court in SLP No.1820 of 1990 appointed Hon'ble Mr.Justice
V.Khalid to go into that issue. Justice V.Khalid's commission finding it as
human problem rather than deciding on the validity of the prescription of the
qualification and non-regularisation, submitted a report on 11.02.1991. In
that report, it was observed that 18006 Contract Labourers, as per the list
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submitted by the Unions participated shall be regularised along with fresh
candidates possessing qualification in the ratio of 1:1.
5.Accepting the report, 18006 Labourers as well as 7000 fresh
candidates were recruited in a phased manner in the ratio of 1:1. This
process was completed during March 1998. The report also observed that
once the regularisation / appointment of the members in the list submitted by
3 Unions was completed, liberty was granted to the Board to recruit
candidates with prescribed qualification.
6.In the interregnum period, during 1997-1998, there was a
demand for Bonus, which was resisted by the Management and the Unions
requested at least for ex-gratia payment. Thereafter, the Board decided to
pay ex-gratia to those Contract Labourers who were in continuous
engagement for five years or more as on 31.03.1997. A Committee was
constituted to identify those people who have completed five years or more
as on 31.03.1997. Accordingly, 8400 Labourers were identified as eligible
for receiving ex-gratia payment.
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7.It is also noted that there were certain anomalies in
regularising the Contract Labourers, for, there was a post of Mazdoor
Trainee, which was abolished. Thus, Mazdoors, who does not require any
qualification were also not regularised. Thereafter, in the year 2005, the post
of Mazdoor Grade - II was revived to accommodate those Mazdoor Grade-II
(Trainee) appointed for two years and thereafter, absorbed as Mazdoor. Out
of 8500 Contract Labourers, 2500 were appointed as Mazdoor Grade-II
during October 2005.
8.In the meanwhile, on 28.06.2005, there was a demand made
by the Unions for further absorption of Contract Labourers. Thereafter,
negotiations were held between the Management and the Unions and during
the conciliation in front of the Commissioner of Labour, a settlement was
arrived at. Accordingly, a Settlement under Section 12(3) of the Industrial
Disputes Act, 1947, was entered into on 10.08.2007 and the respondent
Electricity Board agreed to absorb 21,600 Contract Labourers, which
includes those 6,000 Labourers, who were identified by the Committee to
receive ex-gratia payment in a phased manner. Accordingly, on 06.09.2007,
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B.P.(CH) No.44, Admin Branch was issued absorbing the 21,600 Contract
Labourers including the 6,000 identified Labourers, who have completed
five years of service as on 31.03.1997. It is pertinent to note that the
petitioners' Union had also participated in the negotiations, but refused to
sign the agreement. However, other Unions have signed the agreement and
the Settlement was finalised. Thereafter, on 09.01.2008, a Committee was
constituted to examine the claims of Contract Labourers not covered by the
Settlement under Section 12(3) of the Act.
9.It is also pertinent to note that the respondent Electricity
Board engaged some Contract Labourers on need basis even prior to
05.01.1998 and continuously engaged them. Thereafter, orders were issued
by the Board on 20.02.2008 and 04.03.2008 to absorb them. Accordingly,
in the year 2012, 4037 Contract Labourers were absorbed as Mazdoor
(Trainee).
10.While the matter stood thus, the Contract Labourers
working in the Distribution Circle have approached the Commissioner for
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Workmen Compensation for conferment of permanent status and claimed
permanency. The Commissioner for Workmen Compensation has also
granted the relief in favour of them. When the prescribed qualification under
the Settlement dated 10.08.2007 was insisted by the respondents, writ
petitions were filed challenging the 12(3) settlement as well as for further
regularisation of the Contract Labourers. Ultimately, the issue was decided
by a Division Bench of this Court on 24.10.2008 in W.A.Nos.1302 of 2003
etc., batch, wherein the Division Bench has upheld the 12(3) settlement
entered between the parties and the Contract Labourers, who obtained
orders from the Commissioner of Workmen Compensation for permanency,
were directed to work out their remedies in the light of the 12(3) Settlement
dated 10.08.2007.
11.The members of the writ petitioners' Union have raised the
dispute and the conciliation ended in failure. On the basis of the failure
report, a reference was made by the Government of Tamil Nadu in G.O.(D)
No.389, Labour and Employment Department, dated 23.05.2007 to the
Tribunal.
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W.P.NOS.26479 & 31327 OF 2017
12.The main contention of the writ petitioners is that the
Settlement reached between the other Unions will not bind the petitioners'
Union. The learned counsel for the petitioners would contend that the
Hon'ble Supreme Court in G.M. ONGC, SHILCHAR VS. ONGC
CONTRACTUAL WORKERS UNION [2008 (12) SCC 275] has held that
applying Uma Devi's case in all cases mechanically is not correct. The
precedential value of a decision depends of facts and circumstances of each
and every case. It cannot take away the rights of workers indiscriminately
based on sham and nominal contracts. Further, in the judgment of the
Hon'ble Supreme Court in STEEL AUTHORITY OF INDIA LTD. AND
OTHERS VS. NATIONAL UNION WATER FRONT WORKERS AND
OTHERS [2001 (7) SCC 1] it has been held that after introduction of
Contract Labour Regulation and Abolition Act (CLRA) no automatic
absorption of the Contract Labourers working in the establishment was
ordered, but after finding the contract to be sham and nominal error as
camouflage, the absorption was ordered.
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13.The Hon'ble Supreme Court in MAHARASHTRA STATE
ROAD TRANSPORT CORPORATION AND ANOTHER VS.
CASTERIBE RAJYA P. KARMACHARI SANGHATANA AND OTHERS
[2009 (8) SCC 556] has categorically held that the judgment in Uma Devi's
case will not denude the Industrial and Labour Courts of their statutory
power under Section 30 read with Section 32 of MRTU & PULP Act to
order permanency of the workers, who have been the victim of unfair labour
practice on the part of the employer under item 6 of Schedule IV where the
posts on which they have been working exists.
14.Relying on the rationale laid down by the Hon'ble Supreme
Court in the above judgments, learned counsel for the petitioners would
contend that the engagement of Contract Labourers is sham and nominal
and all the members of the petitioners' union were working directly under
the principal employer. Therefore, they are entitled to absorption. The so-
called Settlement dated 10.08.2007 will not bind them as they were refused
to sign the agreement. According to the learned counsel, the Tribunal has
not applied its mind to the oral and documentary evidence in proper
perspective.
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15.On the other hand, it is noted that from the contention of the
learned counsel for the respondents, 19 witnesses were examined on the side
of the workers and Exs.W1 to W99 were marked, particularly Exs.W12,
W22, W23, W24 and W31 and exhibits marked on the side of the
Management Ex.M9 and M10 inter alia admits the criteria fixed for
absorption. The Settlement reached by the Unions and the Management
under Section 12(3) of the Act, dated 10.08.2007 is binding on all aspects
viz., number of Contract Labourers to be absorbed, their qualification among
other things. Once the prescription of the qualification is admitted and that
the Settlement dated 10.08.2007 was upheld by the Division Bench, the
petitioners are not entitled to seek any relief contrary to the judgment of this
Court and the Settlement dated 10.08.2007.
16.This Court has perused the Award passed by the Tribunal. It
has to be seen as to whether the Tribunal has exercised its power in proper
perspective, applied its mind, adhered to the principles of natural justice and
given its finding based on the evidence placed before it, while passing the
impugned Award.
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17.It is noted that the Tribunal has considered the oral evidence
of 19 witnesses presented before it. It is also observed that most of the
witnesses have stated that they have not at any point of time received any ex-
gratia payment. It is pertinent to note that at the first instance, by virtue of
the report submitted by Justice V.Khalid's Commission, 18006 Contract
Labourers were absorbed in a phased manner till 1998. During the
interregnum period, 8500 Labourers were identified as having put in five
years of service as on 31.03.1997 and were paid ex-gratia payment. Later,
on 10.08.2007, a Settlement was reached pursuant to the conciliation in
front of the Commissioner of Labour under Section 12(3) of the Act. Even
though the petitioners' Union states that they have refused to sign the
agreement and it was signed by all other Unions and further contend that it
is not binding on them, the legal position is that the said agreement reached
between the parties and signed by majority Unions under Section 12 (3) of
the Act, it is a binding Settlement on all the workmen of the establishment
and also the future employees.
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18.Clause-I of the terms of settlement prescribes certain
qualifications for appointment to the posts of Assessor Grade - II, Helper,
Meter Reader and Mazdoor. This settlement was signed by the Board and
majority of the Unions.
19.The Hon'ble Supreme Court in P.VIRUDHACHALAM
AND OTHERS VS. MANAGEMENT OF LOTUS MILLS AND
ANOTHER [1998 (1) SCC 650] has categorically distinguished the
agreements under Section 18(1), 18(3) and 12(3) of the Industrial Disputes
Act, 1947. Para 8 of the said judgment reads as under:
"8. The aforesaid relevant provisions of the Act,
therefore, leave no room for doubt that once a written
settlement is arrived at during the conciliation proceedings
such settlement under Section 12(3) has a binding effect
not only on the signatories to the settlement but also on all
parties to the industrial dispute which would cover the
entire body of workmen, not only existing workmen but
also future workmen. Such a settlement during
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conciliation proceedings has the same legal effect as an
award of Labour Court, or Tribunal or National Tribunal
or an arbitration award. They all stand on a par. It is easy
to visualise that settlement contemplated by Section 12(3)
necessarily means a written settlement which would be
based on a written agreement where signatories to such
settlement sign the agreement. Therefore, settlement under
Section 12(3) during conciliation proceedings and all other
settlements contemplated by Section 2(p) outside
conciliation proceedings must be based on written
agreements. Written agreements would become
settlements contemplated by Section 2(p) read with
Section 12(3) of the Act when arrived at during
conciliation proceedings or even outside conciliation
proceedings. Thus, written agreements would become
settlements after relevant procedural provisions for
arriving at such settlements are followed. Thus, all
settlements necessarily are based on written agreements
between the parties. It is impossible to accept the
submission of learned counsel for the appellants that
settlements between the parties are different from
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agreements between the parties. It is trite to observe that
all settlements must be based on written agreements and
such written agreements get embedded in settlements. But
all agreements may not necessarily be settlements till the
aforesaid procedure giving them status of such settlements
gets followed. In other words, under the scheme of the
Act, all settlements are necessarily to be treated as binding
agreements between the parties but all agreements may
not be settlements so as to have binding effect as provided
under Section 18(1) or (3) if the necessary procedure for
giving them such status is not followed in given cases. On
the aforesaid scheme of the Act, therefore, it must be held
that the settlement arrived at during conciliation
proceedings on 5-5-1980 between Respondent 1-
management on the one hand and the four out of five
unions of workmen on the other, had a binding effect
under Section 18(3) of the Act not only on the members of
the signatory unions but also on the remaining workmen
who were represented by the fifth union which, though
having taken part in conciliation proceedings, refused to
sign the settlement. It is axiomatic that if such settlement
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arrived at during the conciliation proceedings is binding on
even future workmen as laid down by Section 18(3)(d), it
would ipso facto bind all the existing workmen who are
all parties to the industrial dispute and who may not be
members of unions that are signatories to such settlement
under Section 12(3) of the Act."
20.Even the Labourers who were represented by the petitioners'
Union though having taken part in the conciliation proceedings, refused to
sign the Settlement, still it will be binding on them. It cannot be denied that
it will not be binding on minority Union.
21.The Hon'ble Supreme Court has also laid down the ratio in
the above judgments that all agreements may not actually be the settlement
till the procedure laid down for the purpose is followed. But all the
settlements are necessarily to be treated as binding agreements between the
parties, particularly, the agreements reached between the parties under
Section 12(3) of the Act and also the agreements reached between the
parties, written agreements would become settlement contemplated by
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W.P.NOS.26479 & 31327 OF 2017
Section 2(p) read with Section 12(3) of the Act when arrived at during
conciliation proceedings or even outside conciliation proceedings. Thus,
written agreements would become settlement after relevant procedural
requirements for arriving at such settlements are followed.
22.In the instant case, it is admitted that a 12(3) settlement was
arrived at between the parties before the Commissioner of Labour on
10.08.2007. Therefore, it is binding on all the parties including those
appointed in the future also. It is also relevant to note that the above said
Settlement dated 10.08.2007 has been upheld by a Division Bench and a
direction was issued to the Contract Labourers to work out their remedies in
terms of 12(3) Settlement. As found by the Tribunal, except WW17, all
other candidates did not receive ex-gratia payment and they would affirm the
same in their oral evidence. Admittedly, all these Contract Labourers were
not qualified as prescribed under the 12(3) Settlement dated 10.08.2007.
Therefore, it goes without saying that the petitioners are not entitled to claim
absorption outside the scope of 12(3) Settlement.
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23.As observed above, at the risk of repetition, I reiterate that
the 12(3) Settlement is binding upon all the workmen including the writ
petitioners. Therefore, the claim for absorption shall be within the terms of
Settlement dated 10.08.2007.
24.In the instant case, the petitioners failed to prove that they
are qualified and eligible to get absorption. The petitioners' Union has not
come out with a clear case that as to how many members of their Union had
completed five years of service as identified by the Committee constituted by
the respondent Board. It is also not specified as to how many number of
Contract Labourers engaged on need basis prior to 06.01.1998 and
continued in service. Even WW1 would state that he was engaged till 1998
after that he did not work. The Union could give exact details as to the
number of workmen who were engaged on need basis prior to 06.01.1998.
Further, the Tribunal has gone into the representation made by the Union,
wherein at the first instance, vide Ex.W3 dated 29.01.2001, it was
mentioned as 10,442 Contract Labourers / Mazdoors. In Ex.W4 dated
16.02.2001, it was mentioned as 10,489 Contract Labourers / Mazdoors. In
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Ex.W5 dated 09.03.2001 it was mentioned as 10,551 Contract Labourers /
Mazdoors, in Ex.W6 dated 05.04.2001, it was mentioned as 10,586
Contract Labourers / Mazdoors, in Ex.W7 dated 12.04.2001 it was
mentioned as 10,592 Contract Labourers / Mazdoors. But the petitioners'
Union could not specifically state out of this 10,592 Contract Labourers /
Mazdoors, how many of them were absorbed as per the Settlement dated
10.08.2007 possessing the prescribed qualification and how many of them
were absorbed as Mazdoors and how many of them were not engaged for
want of prescribed qualification. Without there being any clear picture, the
Union claims absorption of all the workmen.
25.The Tribunal has categorically applied its mind to the above
factum and held that the judgments relied on by the petitioners in ONGC's
case (cited supra), Steel Authority's case (cited supra) and Maharashtra
State Road Transport Corporation's case (cited supra) will not apply to
the instant case.
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26.It is important to note that the absorption is not made in
violation of labour laws. In fact, the agreement was reached between the
parties under Section 12(3) of the Act and as per the agreement, the
absorption / regularisation / appointments are made. It is also important to
note that the said 12(3) Settlement has been upheld by a Division Bench of
this Court. In that event, it cannot be said that there is unfair labour practice
and the Management is acting upon sham and nominal contracts. Since the
petitioners' Union has failed to prove that they are eligible to get absorption
as per the Settlement and / or otherwise, it is not entitled to the relief sought
for. The Award of the Tribunal does not suffer any illegality or discrepancy
and thereby, it is confirmed.
27.However, the learned counsel for the petitioners would
contend that many of the members of the Union fulfilled the criteria laid
down by the respondent Board. Many of them are qualified to hold the posts
and they have put in more than five years of service and received ex-gratia
payment. They have material documents to prove their eligibility to get
absorption even otherwise.
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28.Considering the submissions made, liberty is granted to the
Members of the petitioners' Union to submit the relevant materials to the
first respondent within a period of four weeks from the date of receipt of a
copy of this order and a further direction is given to the first respondent to
consider and dispose of the same, on merits and in accordance with law,
within a period of six weeks from the date of receipt of such representations.
29.With these observations and directions, the writ petitions are
disposed of. No costs.
22.02.2021
Index : Yes / No
Internet : Yes / No
TK
To
1.The Chairman
Management of Tamil Nadu Electricity Board
800, Anna Salai, Chennai - 600 002.
2.The Presiding Officer
Industrial Tribunal, Tamil Nadu,
High Court Buildings, Chennai - 600 104.
M.GOVINDARAJ, J.
TK
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WP NOS.26479 AND 31327 OF 2017
22.02.2021
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