Madras High Court
Tamil Nadu Pollution Control ... vs The Presiding Officer on 28 July, 2021
W.P.No.32175 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
W.P. No.32175 of 2013
and
MP. No.1 of 2013
Tamil Nadu Pollution Control Board
Rep.by its Member Secretary
No.76, Mount Salai,
Chennai 600 032. ... Petitioner
..Vs..
1. The Presiding Officer
I Additional Labour Court,
Chennai 600 104.
2. D.Murugan ... Respondents
Prayer:- This Writ Petition is filed under Article 226 of the Constitution
of India praying to issue a Writ of Certiorari calling for the records
pertaining to the award dated 12.03.2013 passed by the first respondent
herein in I.D.No.701 of 2001 and quash the same.
For Petitioner : Mr.Kasirajan
For Respondent : Mr.Balan Haridas for R2
1/12
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
ORDER
The petitioner/Tamil Nadu Pollution Control Board has come
forward with the present writ petition challenging the award of the labour
Court dated 12.03.2013 in I.D.No.701 of 2001.
2. According to the employee/second respondent he joined the
services of the Tamil Nadu Pollution Control Board as a cleaner on
11.07.1996 in the mobile Environmental Laboratory at Manali and had
been working continuously from 11.07.1996. Even though, he has
completed more than 240 days of continuous service in a period of 12
calendar months without complying with the mandatory provision of
Section 25-F of the Industrial Disputes Act, 1947, he has been
disengaged from service with effect from 12.07.1997. As the non-
employment is not justified, the employee raised a dispute, which
culminated into an award in the aforesaid Industrial Dispute and the
Labour Court has granted the relief of reinstatement without back wages
but with continuity of service and other benefits. According to the
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
employee, he is aggrieved as to the denial of back wages. However a
Memo has been filed stating that he is willing to give up back wages till
31.07.2001, if he is provided with employment with effect from
01.08.2021.
3. The petitioner/Management has denied the said averment before
the labour Court contending that the employee has worked for only 145
days and that his name has not been sponsored by the Employment
Exchange. He was engaged as a Casual Labour. On and off and he has
not rendered 240 days of continuous service, and hence, the question of
compliance with Section 25-F of the Industrial Disputes Act, 1947 does
not arise. He was not appointed by the Board and there was no order of
termination. According to the petitioner/Management, the question of
denial of employment and violation of principles of natural justice cannot
be canvassed in this case as the employee has no right of employment
and that, there was no written order of termination. Since it has been
reiterated that, as the employee has worked for 140 days only during the
year 1996-1997, he will not be entitled to any benefits. A detailed counter
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
has been filed by the Management before the Labour Court, wherein it
has been stated that the employee has worked for 14 days in July 1996
and various dates in other months and that he has worked for 14 days in
April 1997, totaling 145 days.
4. In reply, it has been contended by the learned counsel for the
second respondent that national holidays, Saturdays and Sundays, which
are paid holidays are not taken into account for the purpose of computing
240 days, even assuming for the sake of argument that the number of
days stated by the Management in the counter is correct. Hence the
learned counsel appearing for the workman/second respondent prays that,
the award of the Labour Court may be confirmed.
5. Heard both sides.
6. It is not in dispute that the employee was a casual labour
engaged on various dates and he has completed the actual number of
working days from July 1996 to April 1997, totaling 145 days. The actual
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
number of working days will have to be looked into in terms of Section
25-B of the Industrial Disputes Act, 1947. In this regard, the Apex Court
in the case of Workmen of American Express International Banking
Corporation Vs Management of American Express International
Banking Corporation reported in (1985) 2 LLJ 539, has held as
follows:-
“We may straightaway say that the present question whether
Sundays and paid holidays should be taken into account for the
purpose of reckoning the number of days on which an employee
actually worked, never arose there. The claim was under the Payment
of Gratuity Act. All permanent employees of the employer claimed that
they were entitled to payment of gratuity for the entire period of their
service, that is, in respect of every year during which they were in
permanent employment irrespective of the fact whether they had
actually worked for 240 days in a year or not. The question there was
not how the 240 days were to be reckoned; the question was not
whether Sundays and paid holidays were to be included in reckoning
the number of days on which the workmen actually worked; but the
question was whether a workman could be said to have been actually
employed for 240 days by the mere fact that he was in service for the
whole year whether or not he actually worked for 240 days. On the
language employed in Section 2(c) of the Payment of Gratuity Act, the
court came to the conclusion that the expression 'actually employed'
occurring in Explanation I meant the same thing as the expression
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
'actually worked' occurring in Explanation II and that as the workmen
concerned had not actually worked for 240 days or more in the year
they were not entitled to payment of gratuity for that year. They further
question as to what was meant by the expression 'actually worked' was
not considered as apparently it did not arise for consideration.
Therefore, the question whether Sundays and other paid holidays
should be taken into account for the purpose of reckoning the total
number of days on which the workmen could be said to have actually
worked was not considered in that case”.
7. Since Saturdays and Sundays are paid holidays, that has got to
be taken into account for the purpose of computing 240 days and that, in
a calendar year, there are 52 weeks which made the number of paid
holidays as 104 in the present case on hand.
8. It is seen that M.W.1 has admitted that the employee has worked
continuously from 11.07.1996 to 11.07.1997 without any break, which
has been observed by the Labour Court. The Labour Court has also
further held that, some other employees viz., Balakumar, Manivannan
and Aruldoss have been regularised as per Ex.W.21 to Ex.W.23.
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
9. Dr.Selvam, Member Secretary was also present to assist the
Court and submitted that there are similar number of employees like that
of the employee herein. He further stated that while other employees
have been recruited through Employment Exchange, by-passing the
procedures contemplated, the employee in the case on hand cannot be
granted the relief sought for by him, as it would amount to encouraging
back door entry.
10. It is worth referring to the decision in the case of Excise
Superintendent Malkapatnam, Krishna District, Andhara Pradesh Vs
K.B.N.Visweshwara Rao and others reported in (1996) 6 SCC 216,
wherein the Apex Court has held that the Employment Exchange cannot
be the only source of recruitment. Paper advertisement and other methods
of informing all the candidates have got to be followed. Relevant
paragraph of the said judgment is extracted below.
“Having regard to the respective contentions, we are of the
view that contention of the respondents is more acceptable which
would be consistent with the principles of fair play, justice and equal
opportunity. It is common knowledge that many a candidates are
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
unable to have the names sponsored, though their names are either
registered or are waiting to be registered in the employment
exchange, with the result that the choice of selection is restricted to
only such of the candidates whose names come to be sponsored by the
employment exchange. Under these circumstances, many a deserving
candidate are deprived of the right to be considered for appointment
to a post under the State. Better view appears to be that it should be
mandatory for the requisitioning authority/establishment to intimate
the employment exchange, and employment exchange should sponsor
the names of the candidates to the requisitioning Departments for
selection strictly according to seniority and reservation, as per
requisition. In addition, the appropriate Department or undertaking
or establishment, should call for the names by publication in the
newspapers having wider circulation and also display on their office
notice boards or announce on radio, television and employment
news-bulletins; and then consider the cases of all the candidates who
have applied. If this procedure is adopted, fair play would be
subserved. The equality of opportunity in the matter of employment
would be available to all eligible candidates”.
11. In view of the above, this Court opines that, recruitment only
through Employment Exchange cannot be the correct procedure, when
sponsorship through Employment Exchange is only directory in nature
and not a mandatory one. Since the award of the labour Court is based on
the finding of fact, even if there is another view possible, this Court
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
cannot substitute its view in the place of the one taken by the labour
Court. Hence this Court finds that there is no perversity in the award as
the Labour Court has held that the 2nd respondent/employee, more so in
view of the admission by M.W.1, has completed twelve months of
service under the employer and that, in terms of the judgment of the
Apex Court in the case of Mohan Lal Vs Management of Bharat
Electronics Ltd., reported in (1981) 1 LLJ 70 (SC), the total number of
240 days have to be counted moving backward to a period of 12 months
just preceding the date of termination and then ascertain as to whether
within 12 months the workman has rendered 240 days of service. In the
case on hand, the second respondent/employee has completed 240 days
and there is a violation of Section 25-F of the I.D.Act, 1947 and that,
sponsorship through Employment Exchange is not mandatory.
12. The relief sought for by the second respondent/employee
before the labour Court is perfectly justified. The learned counsel for the
employee submitted that the employee is giving up back wages till
31.07.2021. Hence, the second respondent/employee shall be reinstated
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
into service with effect from 16.08.2021 with all other benefits with
continuity of service, consequential and other benefits. The award passed
by the labour Court is modified accordingly. In case the modified award
is not implemented, it is open to the employee to initiate steps under
Section 29 of I.D.Act, 1947 and the Government must sanction
prosecution to punish person falling under Section 32 of the said Act.
The undertaking given by the employee as regards giving up back wages
vide memo dated 28.07.2021 is taken on record.
13. This Court appreciates the assistance given by Dr.Selvam,
Member Secretary of the Tamil Nadu Pollution Control Board.
14. With the above observation the writ petition is disposed of. No
costs. Consequently connected miscellaneous petition is also closed.
28.07.2021
dpq
Index: Yes/No
Speaking order: Yes/No
Issue order copy on 06.08.2021
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
To
1. The Presiding Officer
I Additional Labour Court,
Chennai 600 104.
https://www.mhc.tn.gov.in/judis/
W.P.No.32175 of 2013
S.VAIDYANATHAN, J.
dpq
W.P. No.32175 of 2013
and
MP. No.1 of 2013
28.07.2021
https://www.mhc.tn.gov.in/judis/
