Madras High Court
K.R.Kaliyaperumal … vs The Airport Authority Of India on 28 April, 2022
W.P. Nos. 10946 to 10961 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2022
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. Nos. 10946 to 10961 of 2018
and
W.M.P. Nos. 12855 to 12870 of 2018
and
W.M.P. Nos. 5808, 5809, 5811 to 5817, 5819 to 5824 of 2019
and
W.M.P. No. 27370 of 2021
W.P. No. 10946 of 2018:-
K.R.Kaliyaperumal … Petitioner
-vs-
1. The Airport Authority of India,
Rep. by its Director,
Chennai Airport,
Chennai – 600 027.
2. The Assistant General Manager (HR),
Airport Authority of India,
Chennai Airport,
Chennai – 600 027.
3. Union of India,
Rep. by its Secretary,
Ministry of Labour,
Shramsakthi Bhawan,
New Delhi. ...
Respondents
(R3 is impleaded vide order dated 13.04.2022
in W.M.P. No. 5440 of 2022)
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1/16
W.P. Nos. 10946 to 10961 of 2018
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorarified Mandamus, calling for the
records of the impugned order of the Second Respondent No. AAM/HRM/
102-G/2016-17/28568 dated 20.12.2017 and quash the same and directing the
First Respondent to absorb the Petitioner for regularization forthwith.
For Petitioner : Mrs. AL.Ganthimathi
(in all W.P.s)
For Respondents : Mr. S.Venkatesan (for R1 & R2)
(in all W.P.s)
Mr. C.Kulanthaivel,
Senior Panel Counsel (for R3)
ORDER
Heard Mrs. AL.Ganthimathi, Learned Counsel for the Petitioners,
Mr. S.Venkatesan, Learned Counsel for the First and Second Respondents and
Mr. C.Kulanthaivel, Learned Senior Panel Counsel appearing for the Third
Respondent and perused the materials placed on record, apart from the
pleadings of the parties.
2. The Petitioners in these of Writ Petitions claim to have worked as casual
labour from November 1985 to July 1986 in Air Cargo Complex in Chennai
Airport. Subsequently, on formation of Airport Industrial Co-operative Service
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Society Limited (hereinafter referred to as 'AICSSL' for short), an agreement
was entered by International Airport Authority of India (hereinafter referred to
as 'IAAI' for short) with AICSSL on 14.07.1986 to provide services of
manpower for unloading, shifting, stacking, marking, unpacking, packing,
stitching, strapping and counting of cargo and other miscellaneous operations
that are required to be maintained round the clock in Chennai Airport.
According to the Petitioners, they had became members of AICSSL through
whom their services were engaged in Chennai Airport and the conditions of
their employment were governed by the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the CLRA Act'
for short). At that stage, International Air Cargo Workers Union (hereinafter
referred to as 'IACWU' for short), which is a Trade Union said to be
representing the Petitioners, had raised an industrial dispute in I.D. No. 65 of
1991 before the Industrial Tribunal, Tamil Nadu, in which an award dated
23.12.1994 was passed for absorbing the Petitioners in service in Chennai
Airport. The Writ Petition in W.P. No. 6126 of 1995 was filed by IAAI
challenging the said award before this Court in which it has been held in the
order dated 15.12.1997 passed therein as follows:-
“47. Though the impugned award passed by the Tribunal is
required to be set aside, and is set aside nevertheless, having
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W.P. Nos. 10946 to 10961 of 2018
regard to the facts of this case and the fact that the workmen,
have been repeatedly knocked at the doors of this Court, the Writ
Petition as a public sector undertaking, is required to at least
approximate to be a model employer and also having regard to
the observations of the Supreme Court in the case of Gujarat
Electricity Board, UKAI -vs- Hindu Mazdoor Sabha (AIR 1995
SC 1893), Madhura Refinery Mazdoor Sangh -vs- Indian Oil
Corporation Ltd., [(1991) 2 SCC 176] and R.K.Panda -vs- Steel
Authority of India [(1994) 5 SCC 304], I consider the following
directions as being just and necessary:-
(i) The Central Government and the Advisory Board
constituted under the provisions of the Act 37/70 are
directed to consider the question of abolition of contract
labour in the task of packing and loading and works
incidental thereto if such question is not already engaging
their attention, the examination of the question and
appropriate decision thereon shall be taken within a period
of twelve months from today.
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W.P. Nos. 10946 to 10961 of 2018
(ii) Until such time of the Central Government takes a decision,
the workmen concerned in this dispute shall continue
notwithstanding the interruption and their employment as
contract labourers on the terms and conditions that were
part of the agreement between the society and I.A.A.I. prior
to 1994, subject to the further consideration that the wages
paid to the workmen shall not be less than what is paid to
the contract labourers who had been engaged between
1994 and 1997.
(iii) The engagement of the workmen as contract labourers will
be subject to their good behaviour conduct and discipline
and efficient performance of the duties which they are
required to discharge in the cargo complex.
(iv) The workmen shall be engaged in the cargo complex with
effect from week of January, 1998.
(v) In the event of Central Government issuing a notification
under Section 10 prohibiting contract labour in these
occupations, all who had worked as contract labourers
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under the contracts between the society and I.A.A.I. upto
the number specified in the contract, shall be absorbed by
the order of the Apex Court in the case of Air India
Statutory Corporation -vs- United Labour Union [(1997) 9
SCC 377].”
Though that order had been set aside in appeal by the Division Bench of this
Court by order dated 12.11.2001 in W.A. No. 544 of 1998, it was restored by
the Hon'ble Supreme Court of India by order dated 13.04.2009 in Civil Appeal
No. 2244 of 2002 with the following observations:-
“30. In the light of our findings on the two questions the order
of the Division Bench cannot be sustained and is liable to be set
aside and the order of the Learned Single Judge has to be
restored. We may however note that the last direction given by
the learned Single Judge that in the event of the Central
Government issuing a notification under section 10 of CLRA Act,
all those who had worked as contract labour under the contract
between IAAI and society should be absorbed in the same
manner as was directed by this Court in Air India Statutory
Corporation -vs- United Labour Union [(1997) 9 SCC 377] is a
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W.P. Nos. 10946 to 10961 of 2018
direction which is bad in law, as subsequent to the said decision
of the learned Single Judge, this Court in Steel Authority of
India Ltd., -vs- National Union Waterfront Workers [(2001) 7
SCC 1], reversed the decision in Air India Statutory
Corporation -vs- United Labour Union [(1997) 9 SCC 377].
IAAI did not challenge the said direction. Steel Authority of
India Ltd., -vs- National Union Waterfront Workers [(2001) 7
SCC 1] has also made it clear that the decision in Air India
Statutory Corporation -vs- United Labour Union [(1997) 9 SCC
377] is overruled prospectively and any declaration or direction
issued by industrial adjudicator or High Court for absorption of
contract labour following the judgment in Air India Statutory
Corporation -vs- United Labour Union [(1997) 9 SCC 377]
shall hold good and shall not be set aside, altered or modified
on the basis of the decision in Steel Authority of India Ltd., -vs-
National Union Waterfront Workers [(2001) 7 SCC 1].
Therefore, the said direction of the learned single Judge which
has attained finality, as IAAI did not challenge the same, is not
disturbed. In view of the above, the appeal is allowed in part, the
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W.P. Nos. 10946 to 10961 of 2018
order of the Division Bench is set aside and the order of the
Learned Single Judge is restored.
31. We are informed that during the pendency of the Writ
Petition, in pursuance of an interim order, the workers were
being paid Rs.1,000/- per month without extracting any work. In
the Writ Appeal, the Division Bench modified the said interim
order on 01.09.1998. While continuing the direction for the
monthly payment of Rs.1,000/-, it directed that the workers who
reported for work and worked under the current contractor
should be paid Rs. 1,281/- per month and those who did not
report to work, but awaited the result of litigation, should
continue to receive Rs. 1,000/- per month. In
pursuance of it, seven workers apparently reported to work and
worked up to 15.04.2002 and were paid Rs. 1,281 per month; the
remaining 70 chose not to report to work and continued to
receive Rs. 1,000/- per month. Apparently those 70 were
otherwise engaged or employed and therefore did not choose to
report to work. The judgment of the Division Bench dated
12.11.2001 which restored the award of the Tribunal, was stayed
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by this Court. When IAAI challenged the judgment of the
Division Bench restoring the award of the Tribunal, this Court
on 15.3.2002 directed that status quo as on the date of the
judgment of the High Court be maintained. By a subsequent
interim order dated 21.2.2003, this Court observed that it will be
difficult for this Court to issue any direction in terms of the
interim order granted by the High Court would be a bad
precedent in labour law, as that would mean directing payment
for not doing any work. This Court therefore directed IAAI to
extract appropriate work from the workers and to pay them Rs.
1,000/- to such of them who worked. It was clarified that
payment of Rs. 1,000/- would be without prejudice to the rights
of the parties as may be finally determined. In view of our final
decision, the only further direction we propose to make is that in
regard to the period subsequent to 21.02.2003, if any of the
workers had worked and had been paid only Rs. 1,000/- per
month, IAAI shall pay for the said period by way of monthly
salary a sum equivalent to the minimum wages. The difference
between the minimum wage and Rs. 1,000 shall be paid by the
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IAAI to the said workers who have worked, within 3 months from
today. Parties to bear their respective costs.”
Despite the aforesaid orders passed, IAAI by Order No. AAM/LA W/1C/2009
dated 30.04.2009 had attempted to disengage 77 ex-loaders in Chennai Airport,
which was challenged by IACWU in another Writ Petition in W.P. No. 10383
of 2009 before this Court. In view of the interim order dated 15.06.2009 in M.P.
No. 2 of 2009 passed in that Writ Petition, the members of IACWU, who were
working in Chennai Airport, were directed to be restored in service and the said
order was confirmed in appeal by order dated 26.06.2009 in W.A. No. 866 of
2009 passed by the Division Bench of this Court. The said Writ Petition in W.P.
No. 10383 of 2009 was disposed by the Court by order dated 16.06.2014
setting aside the Order No. AAM/LA W/1C/2009 dated 30.04.2009 passed by
IAAI, who was directed to continue to employ the contract labour who had
joined duty as per the said interim order and allow any other such contract
labour who have not joined as per the said interim order to join duty subject to
proof of their identity until a decision is taken by the Central Government in
terms of Section 10 of the CLRA Act as directed by this Court in W.P. No.
6126 of 1995 which has been confirmed by the Hon'ble Supreme Court of India
in Civil Appeal No. 2244 of 2002 and the Central Government was required to
comply with the directions issued in the said orders.
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3. It is evident from the aforesaid sequence of events that the Petitioners
have been continued to be employed in Chennai Airport in an interim
arrangement till a decision on abolition of contract labour is taken by the
Central Government under Section 10 of the CLRA Act. In that backdrop, each
of the Petitioner in these Writ Petitions had made individual representations
dated 30.12.2017 seeking permanent employment in Chennai Airport, but the
same was declined by the Second Respondent by separate orders dated
19.12.2017, 20.12.2017 and 16.04.2018 stating that such demand could not be
acceded till a decision is taken by the Central Government under Section 10 of
the CLRA Act in terms of the earlier orders passed by the Court. Aggrieved
thereby, the Petitioners have filed these Writ Petitions challenging the said
orders and have sought for consequential direction to the First Respondent to
absorb them in service.
4. As already noticed earlier, this Court by order 15.12.1997 in W.P.
No. 6126 of 1995 had required the Central Government and the Advisory Board
constituted under the provisions of the CLRA Act to consider the question of
abolition of the contract labour in the task of packing, loading and works
incidental thereto in Chennai Airport within a period of 12 months, which has
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been confirmed by the Hon'ble Supreme Court of India by order dated
13.04.2009 in Civil Appeal No. 2244 of 2002 and the same has attained
finality. Though the said order has been reiterated by this Court by another
order dated 16.06.2004 in W.P. No. 10383 of 2009, there is nothing to show
that the Central Government has so far taken any action in the matter as
required in the earlier orders passed by the Court. At the same time, it is borne
out from the record that the Central Government had not been made as party to
any of the earlier litigation and this Court by order dated 13.04.2022 in these
Writ Petitions has impleaded the Central Government as the Third Respondent
and is represented by Learned Central Government Standing Counsel who has
taken notice on its behalf in the matter. Inasmuch as it has been specifically held
in the earlier orders passed by the Court that the Petitioners would be entitled
for absorption in service only in the event of the Central Government issuing a
notification for abolition of contract labour in Chennai Airport under Section 10
of the CLRA Act, the First and Second Respondents cannot be faulted in
refusing to entertain the claim of the Petitioners for regularization in service till
a decision is taken by the Third Respondent in that regard. Learned Counsel for
the Petitioners has brought to notice that IACWU has now made a
representation dated 20.04.2022 to the Central Government and the Advisory
Board to abolish contract labour in Chennai Airport under the provisions of the
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CLRA Act and to regularize the services of the Petitioners by conferring
permanent status to them.
5. In view of the foregoing discussion, the following order is passed:-
(i) the Third Respondent in consultation with the Advisory Board
constituted under the CLRA Act shall consider the representation dated
20.04.2022 made by the IACWU and after affording opportunity of
personal hearing to all parties concerned following the prescribed
procedure shall take a decision in accordance with law on the demand for
abolition of contract labour for packing, loading and works incidental
thereto in Chennai Airport and communicate the same by 30.09.2022;
and
(ii) in the event of Third Respondent issuing the notification for abolition of
contract labour in Chennai Airport under Section 10 of the CLRA Act,
the First and Second Respondents shall examine the claim made by each
of the Petitioners for their regularization in service by conferment of
permanent status in terms of the order dated 15.12.1997 in W.P.
No. 6126 of 1995 passed by this Court, which has been confirmed by the
Hon'ble Supreme Court of India in Civil Appeal No. 2244 of 2002, within
a period of 30 days from the date of publication of such notification and
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inform its outcome to the Petitioners under written acknowledgment.
In the result, these Writ Petitions are disposed on the aforesaid terms.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
28.04.2022
vjt
Index: Yes/No
Note: Issue order copy by 09.05.2022.
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W.P. Nos. 10946 to 10961 of 2018
To
1. The Director,
Airport Authority of India,
Chennai Airport,
Chennai – 600 027.
2. The Assistant General Manager (HR),
Airport Authority of India,
Chennai Airport,
Chennai – 600 027.
3. The Secretary to Government of India,
Ministry of Labour,
Shramsakthi Bhawan,
New Delhi.
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W.P. Nos. 10946 to 10961 of 2018
P.D. AUDIKESAVALU, J.
vjt
W.P. Nos. 10946 to 10961 of 2018
28.04.2022
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