Madras High Court
The Senior Administrative ... vs The Presiding Officer on 2 July, 2021
W.A.No.1510/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.1510 of 2012
The Senior Administrative Officer,
Sugarcane Breeding Institute,
Coimbatore-641 007. ... Appellant
-vs-
1. The Presiding Officer,
Central Government Industrial Tribunal-
cum-Labour Court,
Sashtiri Bhavan,
Chennai-600 006.
2. The General Secretary,
Sugarcane Breeding Institute,
Employees Union, Coimbatore.
3. The Secretary,
Sugarcane Breeding Institute,
Farm Labour Union,
Coimbatore.
4. The Union of India
rep. by the Secretary,
Ministry of Agriculture,
Department of Agriculture Research &
Education, Krishi Bhavan,
New Delhi-110 001.
1/18
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W.A.No.1510/2012
5. The Secretary,
Indian Council of Agricultural Research,
Krishi Bhavan, New Delhi.
(R4 and 5 were impleaded vide order
dated 29.11.2016 in M.P.1/2015 in
W.A.No.1510/2012)
6. K.Jeyaraman
7. N.Thangavelu
8. Vasanthamani
9. G.Pakiyam
10.T.Manikkam
11.A.Arukani
12.V.Chinnakannu
13.Rajammal
14.A.Suandaraj
15.S.Sarasu
16.R.Subbammall
17.Jeyammal
18.T.Mani
19.Thottakkal
20.Savithri
21.Aaurchami
22.T.P.Shanta
23.S.Veeran
24.Bany
25.V.Prema
26.R.Devaraj
27.R.Nagarajan
28.R.Sugantha
29.P.Ponnammal
30.P.Rathna
31.K.Ponnammal
32.R.Maruthachalam
33.R.Lakshmi
34.N.Baladhandapani
35.Amuthavalli
36.R.Velumani
37.K.Rangasami
38.V.R.Palasami
39.S.Manikaraj
40.R.Sundarammal
2/18
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W.A.No.1510/2012
41.K.Papathi
42.T.Chinnakannu
43.V.Aravind Das
44.N.Murthy
45.N.Thagavelu
46.Saraswathy
47.Rajalakshmi
48.M.Velan
49.K.Chinnasami
50.B.Ayyasami
51.P.K.Pappannan
52.Rathinammal
53.M.Sundarambal
54.R.Deivathal
55.Thulasiyammal
56.P.Ranganathan
57.K.Shanmugaraj
58.P.Mayilathal
59.Valli
60.Balan
61.Kalamani
62.P.Manian
63.Eeswari
64.Chinnamani
65.P.Kanakaraj
66.K.Saraswathi
67.Nanchappa Ponnammal
68.M.Nagarajan
69.P.Singaraj
70.P.Gopalakrishnan
71.K.Karupasami
72.Rajammal
73.M.Devaraj
74.Pathumavathi
75.Rukmani ... Respondents
(R6 to 75 impleaded vide order dated
06.02.2017 in M.P.No.2/2015 in WA.No.1510/2012)
3/18
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W.A.No.1510/2012
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent
against the order dated 26.04.2011 made in W.P.No.10489/2006 by a
learned Single Judge of this Court.
For Appellant : Mr.S.Yashwath
For Respondents : M/s.D.Bharathy for R2
Mr.V.Ajoy Khose
for Mr.R.Krishnasamy for R3
Mr.Madhanagopal Rao, SPC
for R4
Mr.P.Sathish for R5
Ms.Meera Gunasekar for
R6 to 75
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
This Writ Appeal has been directed against the order dated
26.04.2011 made in W.P.No.10489/2006 by a learned Single Judge of
this Court.
2. This Writ Appeal has brought up an interesting issue that
when 258 employees were working for the past 30 to 40 years in the
Sugarcane Breeding Institute, Veera Keralam, Coimbatore, which is a
Premier World Renowned Institution conducting valuable,
fundamental and applied research on sugarcane crop for the benefit
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W.A.No.1510/2012
and betterment of the farming community, ignoring the fact that all
these persons are working in the Agricultural University for more than
30 years as casual labourers, their services were not regularized,
even on completion of 240 days of their work. Therefore, the
Respondent Unions/respondents 2 and 3, finding no response to their
representation dated 02.04.1999, raised an Industrial Dispute on
07.08.2000 and the conciliation proceedings ended in failure.
Therefore, the matter was referred to the Central Government
Industrial Tribunal-cum-Labour Court, Chennai. It is also an admitted
fact that the Indian Council of Agriculture Research has passed an
order to the effect that the services of the casual labourers who have
put in atleast 240 days as Casual Labour during the period of two
years can be appointed to regular establishment. It is also yet
another fact that the Ministry of Personnel, Government of India,
under O.M.No.49014/286/Estt. Dated 7.6.88 has reviewed the policy
of recruitment of Casual Labour and persons on daily wages and has
passed orders justifying the absorption of casual labourers against
regular posts. Subsequently, 44 workmen were made as Casual
Labourers eligible for higher wages. In the meanwhile, on
10.09.1993, the Department of Personnel & Training, New Delhi has
framed a scheme for grant of temporary status and regularisation of
Casual Labourers following the judgment of the Principal Bench of
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Central Administrative Tribunal, New Delhi in the case of S.Rajkamal
and others vs. Union of India.
3. When the matter stood as above, opposing the same,
several objections were raised by the Appellant Management
contending that the dispute is not at all maintainable and therefore,
liable to be dismissed for the reason that the appellant Management
imparts post-graduate training in sugarcane research and
development and this Institute functions under the administrative
control of the Indian Council of Agricultural Research, which is a
Central Government Autonomous Institute working under the
Department of Agricultural Research and Education. Further, this
Institute is engaged purely in agricultural research activities
pertaining to sugarcane crops and does not have any profit motive.
Although the appellant management has engaged casual labourers in
various field operations from time to time, as and when required,
presently 117 temporary status casual labourers and 133 casual
labourers are engaged in various field operations. Since there was a
ban imposed, it was pleaded that the appellant Management would
consider the plea of regularization after lifting of the ban on
recruitment and creation of additional posts by the Government and
ICAR because the Senior Administrative Officer has no power to
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W.A.No.1510/2012
appoint, regularise and to grant relief to the employees. On this
basis, it was pleaded that the demand for regularization was sought
to be repealed.
4. Learned Industrial Tribunal-the 1st respondent herein
framed the following three points for consideration:
a. Whether the demand of the 1st party/1st petitioner Union to
regularize 120 workmen as per Annexure I is legal and justified?
ii. Whether the demand of the 1st party/2nd petitioner Union to
regularize 138 workmen as per Annexure II is legal and justified?
iii. To what relief the concerned workmen are entitled?
5. On considering the rival contentions made by both
parties, the learned Central Government Industrial Tribunal passed an
award dated 24.06.2005 holding that the members of the 1st party/1st
petitioner Union and 2nd petitioner Union-the respondents 2 and 3
herein are entitled to be regularized on completion of 240 days
service from the date of their joining in appellant Management and
they are entitled to all the monetary benefits with consequential
reliefs. It was also specifically mentioned that with regard to the 2nd
and 3rd respondents Union Members, their regularization will be
subject to the result of the W.P.No.17847/1997. The said Writ
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Petition was also partly allowed in respect of back wages alone and
the order directing the appellant Management to reinstate 153
workmen into service and continuity of the service as ordered are
confirmed and the direction in respect of payment of back wages is
set aside with a direction that the workmen are not entitled for any
back wages.
6. Admittedly, from 01.09.1993, temporary status was
conferred to the members of the 2nd respondent Union and from
14.07.2011 temporary status was conferred to the members of the 3rd
respondent Union by the Tribunal. Aggrieved thereby, the matter
was taken up to the Single Judge by the appellant herein taking
several grounds, namely, (a) the appellant institute is not having
power to regularize the members of the 2nd and 3rd respondent Unions
even on completion of 240 days in service and (b) that the appellant
institution, which functions under the administrative control of the
Indian Council of Agricultural Research, cannot go beyond the rules
provided for the service of the Labourers. Therefore, the award
passed by the 1st respondent, without taking into account these legal
aspects cannot be implemented by the appellant. However, the
learned Single Judge finding the sole stand taken by the appellant
herein before the Tribunal that the appellant is not having power to
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create any additional post as the power to regularize the service of
the casual labourers and the creation of the additional posts and the
consequential aspect of regularization of services are all falling on the
4th respondent, while confirming the findings and conclusions reached
by the learned Industrial Tribunal for the sole reason that the
members of the 2nd and 3rd respondent Unions were working
continuously for more than 30 to 40 long years, directed the
appellant to create additional posts and then to regularize their
services. Aggrieved thereby, again the present appeal has been
brought up before this Court.
7. Learned Counsel for the 5th respondent placed three fold
submissions before us. Firstly, it was argued that when the appellant
is a premier world renowned institution conducting valuable,
fundamental and applied research on sugarcane crop for the benefit
and betterment of the farming community for the past 30 years,
accepting the need for regularizing the services of the casual
labourers, on two occasions, details proposals have been sent to the
4th respondent. The 1st proposal was sent on 02.12.1999 The
Directory of the appellant Institute in his proposal dated 2.12.1999
addressing to the Deputy Director General (C.S.), I.A. III Section,
Indian Council of Agricultural Research, New Delhi-110 001 requested
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that 60 posts may please be created as Supporting Staff Grade-I to
regularize the Temporary Status Casual Labourers working in the
Institute. Again, yet another proposal has been sent on 05.01.2019
renewing the request to create additional 182 posts of Skilled
Support Staff for regularization of temporary status Casual Labourers.
In the said request for regularization, it has been specifically
mentioned that there will be no substantial financial implication for
regularization of TSCLs as they are already drawing the wages
equivalent to the salary of Skilled Support Staff. Again, they
mentioned that unless the 4th respondent comes forward to regularize
the service of the aforementioned workers, it would lead to several
complications even in continuing the research work of the appellant
institution.
8. However, learned Counsel appearing for the appellant
stated that when the appellant institute has repeatedly brought to the
notice of the 4th respondent, the need for regularization of the service
of the workers, the 4th respondent was facing the ban imposed for
regularization of the workmen. In view of the above aspect,
regularization of the services of the workers belonging to the 2nd
respondent union before the Industrial Tribunal could not be fulfilled.
If the 4th respondent comes forward to create the requisite number of
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posts and consequentially, grants the permanent status, the appellant
institute will not have any problem. Now the 4th respondent alone
has to take final decision. Therefore, the direction issued by both the
Learned Industrial Tribunal and the further direction given by the
learned Single Judge confirming the award of the Tribunal directing
the appellant to regularize the services of the workmen belonging to
the 2nd and 3rd respondent Unions is unsustainable as they do not
have the power to sanction the posts and consequential regularization
of their services.
9. Mr.Ajoy Khose, learned Counsel for Mr.R.Krishnasamy,
learned Counsel for the 3rd respondent Union submitted that when the
very same objection was raised before the learned Tribunal that in
view of the ban imposed, the request for regularization cannot be
considered, the learned Tribunal has rightly over-ruled the said
objection, making it clear that all these employees were working for
decades even before the ban was imposed. As a matter of fact, the
ban came into picture only in the year 2000. Therefore, the present
appeal deserves no merit, he pleaded.
10. We are also able to see from the Claim Petition and also
the counter affidavit filed before the learned Tribunal that all these
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employees were working in the appellant institute from 1976
onwards. In support of this submission, the learned Counsels for the
2nd and 3rd respondent Unions have also drawn our notice to the latest
typed set dated 30.06.2021 filed by the learned Counsel for the
appellant wherein at page No.22 we are able to see that the members
of the 2nd and 3rd respondents Unions were appointed starting from
the year 1970 onwards, i.e. 1970, 1972, 1976, 1977, 1980. 1981,
1982, 1983, 1985, 1986, 1988. Therefore, the learned Tribunal has
rightly come to the conclusion that when the members belonging to
the 2nd respondent Union have been working from 1970 onwards, the
so called ban imposed not to fill up any posts in the appellant
institute in the year 2001 cannot be made applicable with
retrospective effect to the workers appointed prior to the said ban
imposed. Even the communication dated 05.06.2018 issued by the
Section Officer, Indian Council of Agricultural Research, Krishi
Bhavan, Dr.Rajendra Prasad Road, New Delhi, shows that there was a
general ban on creation of posts by the Ministry of Finance vide
OM.No.7(1)/E.Coord.2014 dated 29.10.2014. But the same
proceedings clearly shows that despite the ban, the posts are created
once these have been sanctioned in the EFC/SFC of the Institute
because of the necessity to employ in the appellant Institute.
Therefore, when there was no ban imposed by the 4 th respondent on
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the date the employees working in the 2nd and 3rd respondent Unions
completed 240 days, the learned Tribunal in its award has rightly
held that the objections raised by the appellant that since there was a
ban imposed by the 4th respondent, the request for regularization
could not be completed was without any substance. This finding was
also once again gone into by the learned Single Judge of this Court.
11. We are also able to see that when the appellant Institute
is a premier world renowned institution conducting valuable,
fundamental and applied research on sugarcane crop for the benefit
and betterment of the farming community and carrying on the
agricultural activities continuously for more than 30 years, it is solely
depending continuous essential and important works being carried
out by the members belonging to the respondent Unions 2 and 3.
Although the members of the respondent Unions 4 and 5 were
fighting before the learned Industrial Tribunal and subsequently
before the learned Single Judge saying one aspect that in view of the
general ban imposed by the 4th respondent, their services have not
been regularised on completion of 240 days by the appellant
Management, now the entire gamut of the matter has undergone a
complete transformation.
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12. Learned Counsel for the appellant also, as we mentioned
earlier has brought to the notice of this Court that two proposals were
sent to the 4th respondent, requesting repeatedly to sanction and
subsequently regularise the services of the employees working even
now as some of them reached the age of superannuation. Therefore,
when more than 30 to 40 years of their prime life time has been
spent working for the appellant agricultural institute which is a
premier world renowned institution conducting valuable, fundamental
and applied research on sugarcane crop for the benefit and
betterment of the farming community, the argument of ban that came
into picture in the year 2000 is nothing to do with the regularization
of the workmen who are working from 1976 onwards. Secondly as
mentioned above, since the appellant institute has made repeated
requests to the 4th respondent, namely, the Secretary, Ministry of
Agriculture, Union of India, Department of Agriculture Research and
Education, New Delhi, to sanction the requisite posts for the
regularization of the presently working employees, a direction has
been given by the learned Industrial Tribunal to regularise their
services only as against the appellant.
13. At this juncture, we are also able to see that the appellant
is not having any power to create the posts for regularization and the
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only competent authority to create and sanction the requisite number
of posts is only with the 4th respondent. While considering the similar
issue in Nihal Singh and Others vs. State of Punjab and others
reported in 2013 (14) SCC 65, the Hon'ble Apex Court has held that
there is no justification on the part of the State to take a defence that
after permitting the utilisation of the services of a large number of
people like the employees belonging to the respondent 2 and 3
Unions for decades to say that there are no sanctioned posts to
absorb the appellants. The relevant paragraph is extracted here
under:
''20. But we do not see any justification for the State
to take a defence that after permitting the utilisation of
the services of a large number of people like the
appellants for decades to say that there are no sanctioned
posts to absorb the appellants. Sanctioned posts do not
fall from heaven. The State has to create them by a
conscious choice on the basis of some rational assessment
of the need.''
Therefore, we are being fully satisfied with the argument advanced by
the learned Counsel for the appellant, hereby shift the direction given
by the learned Industrial Tribunal as well as the learned Single Judge
of this Court from the appellant to the 4th respondent.
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14. Accordingly, a direction is issued to the 4th respondent,
namely, the Secretary, Union of India, Ministry of Agriculture,
Department of Agricultural Research & Education, Krishi Bhavan, New
Delhi, to consider the proposal sent by the appellant institute on two
occasions, on the first occasion on 02.12.1999 requesting the 4 th
respondent to sanction 182 posts and the 2nd proposal on 05.01.2019
requesting to sanction 66 posts, taking into account that the appellant
being a premier world renowned institution conducting valuable,
fundamental and applied research on sugarcane crop for the benefit
and betterment of the farming community and pass appropriate
orders, within a period of four weeks from the date of receipt of a
copy of this Order. Thereafter, the appellant Institute shall create
additional posts and consequently regularise the services of the
employees who are working for the past 4 decades.
15. At this stage, it is relevant to mention that since it is not
in dispute that the members of the 2nd and 3rd respondent Unions
were all sponsored through the employment exchange, the hurdle
imposed in the Uma Devi's Case also will not come against the
sanction and creation of the posts by the 4th respondent and the
appellant herein.
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16. With the above observations and directions, the Writ
Appeal is partly allowed. No costs.
15. Post the matter after five weeks for 'reporting
compliance'.
(T.R.J.,) (V.S.G.J.,)
02.07.2021
Note : Issue Order copy on 17.12.2021
tsi
To
1. The Presiding Officer,
Central Government Industrial Tribunal-
cum-Labour Court,
Sashtiri Bhavan,
Chennai-600 006.
2. The General Secretary,
Sugarcane Breeding Institute,
Employees Union, Coimbatore.
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W.A.No.1510/2012
3. The Secretary,
Sugarcane Breeding Institute,
Farm Labour Union,
Coimbatore.
4. The Secretary,
Union of India,
Ministry of Agriculture,
Department of Agriculture Research &
Education, Krishi Bhavan,
New Delhi-110 001.
5. The Secretary,
Indian Council of Agricultural Research,
Krishi Bhavan, New Delhi.
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W.A.No.1510/2012
T.RAJA, J.
and
V.SIVAGNANAM, J.
tsi
W.A.No.1510/2012
02.07.2021
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W.A.No.1510/2012
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