Madras High Court
A.Arunachalam vs The Tamil Nadu Electricity ... on 8 June, 2022
WP No.5976 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08.06.2022
CORAM:
THE HON'BLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.5976 of 2014
A.Arunachalam ... Petitioner
Vs
1. The Tamil Nadu Electricity Generation &
Distribution Corporation Ltd.,
Represented by the Chairman,
No.144, Annasalai,
Chennai - 2.
2. The Chief Engineer (Personnel)
The Tamil Nadu Electricity Generation &
Distribution Corporation Ltd.,
No.144, Annasalai,
Chennai - 2.
3. The Superintending Engineer,
The Tamil Nadu Electricity Generation &
Distribution Corporation Ltd.,
Dharmapuri-5.
4. The Inspector of Labour,
Krishnagiri District. .. Respondents
[R4-dismissed vide Court order dated 17.03.2020]
PRAYER: This Writ Petition is filed under Article 226 of the
Constitution of India, praying for issuance of Writ of Mandamus,
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directing the respondents 1 to 3 to implement the order of the 4th
respondent made in A/ 444/2009 dated 22.10.2010 under the provisions
of the Tamilnadu Industrial Establishments (Conferment of permanent
status to workmen) Act 1981 and thereby direct the respondents 1 to 3 to
absorb the petitioner in the 1st respondent corporation as permanent
employee.
For Petitioner : Mr.M.Jayachandran
For Respondents : Mr.Anand Gopalan (for R1 to R3)
for M/s.T.S.Gopalan & Co
ORDER
The relief sought for in the present writ petition is to direct the
respondents 1 to 3 to implement the order of the fourth respondent made
in A/ 444/2009 dated 22.10.2010 under the provisions of the Tamil Nadu
Industrial Establishments (Conferment of Permanent Status to Workmen)
Act, 1981 and thereby direct the respondents 1 to 3 to absorb the
petitioner in the first respondent-Corporation as permanent employee.
2. The petitioner states that he was working as a Contract
Labourer in the 1st respondent Electricity Board for several years. The
petitioner claims that he had completed 480 days of service within a
continuous period of service. Accordingly, the petitioner made a
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representation to the third respondent to grant permanent status on par
with other similarly placed persons. The petitioner states that Justice
Khalid Commission submitted a report recommending permanent
absorption in respect of contract labourers, who served 480 days in 24
months. Pursuant to the report, the Committee short listed the eligible
persons and accordingly, the benefit of permanent absorption was
granted. The petitioner, based on the services rendered by him as a
Contract Labourer, filed a petition before the Inspector of Labour under
the Tamilnadu Industrial Establishments (Conferment of Permanent
Status to Workmen) Act, 1981, and the Inspector of Labour passed an
order on 08.08.1998, granting the benefit of permanent status in favour
of the writ petitioner. However, the said order has not been implemented
by the first respondent. Thus, the petitioner is constrained to move the
present writ petition for a direction to implement the orders of the
Inspector of Labour.
3. The first respondent Electricity Board disputed the
contentions on the ground that the name of the writ petitioner did not
figure in the list of Contract Labourers by Hon'ble Justice Khalid
Commission and therefore, the benefit of permanent absorption cannot be
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granted. The first respondent Electricity Board in respect of certain
persons is unable to secure the records with reference to the work details
and in fact, these contract labourers were engaged by the private contract
labourers with whom, the Tamil Nadu Electricity Board entered into an
agreement to execute the works on behalf of the Electricity Board.
4. Learned counsel for respondents 1 to 3 reiterated that on
verification of records, eligible contract labourers were identified and
accordingly, the benefit of permanent absorption was granted as per
12(3) Settlement dated 10.08.2007, and the consequential Board
Proceedings in B.P.(Chairman)No.9, Administrative Branch, dated
09.01.2008.
5. The learned counsel appearing on behalf of the
respondent/Board stated that for grant of permanent absorption, the
Tamil Nadu Electricity Board is bound by their own service regulations,
which will prevail over the general laws. The legal principle to be
followed is that, whenever there is a special enactment regarding the
service regulations or rules of a “State”, then the said service regulations
will prevail over the general laws. The service regulations of the Tamil
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Nadu Electricity Board confirmed under Section 79 of the Electricity
Supply Act, 1948 will hold good in respect of the grant of benefits to the
employees of the Tamil Nadu Electricity Board and the said regulations
will prevail over all other general laws. Thus, the very application of the
Conferment of Permanent Status Act, made by the workman is untenable.
The provisions of the Conferment of Permanent Status Act would not be
applicable in such cases, where the special enactments are in force.
6. In the present case, service conditions were formulated by
the Board by virtue of the powers conferred under Section 79 of the
Electricity Supply Act, 1948. Therefore, the service regulations framed
under the special statute will prevail over the general laws and therefore,
this Court is of the considered opinion that the provisions of the Tamil
Nadu Industrial Establishments (Conferment of Permanent Status to
workman) Act, 1981, is not applicable in respect of the employees, who
all are claiming to be the servants of the Tamil Nadu Electricity Board.
7. The scheme of the service regulations issued by the Tamil
Nadu Electricity Board is akin to that of the service condition formulated
by the Government of Tamil Nadu to its employees. It is pertinent to
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note that the reservation in appointments are provided in the service
regulation, which is a constitutional mandate. The mode of recruitment
and the communal rotations, rosters are also contemplated under the
service regulations. In the event of granting such permanent absorption
without reference to the Rules & Regulations, the same would be in
violation of the constitutional mandates and its provisions. The benefits
of regularization or permanent absorption are ought to be granted strictly
in accordance with the recruitment Rules in force. The Regulations are
constituted by virtue of the powers conferred to the Competent
Authorities under the Electricity Act. The service regulations, which all
are in force, are akin to that of the service rules as applicable to the
Government employees in the Government of Tamil Nadu. The Tamil
Nadu Electricity Board, being an instrumentality of a State, is following
the service regulations framed under the statute and therefore, the said
service regulations will prevail over the general laws and regulations are
to be applied for the purpose of grant of regularization or permanent
absorption.
8. It is relevant to cite a judgement of the Division Bench of
this Court in the case of L.Justine Vs. Registrar of Co-operative
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Societies reported in 2003 (1) L.L.N. 315, wherein the Division Bench
framed Issue No. (ii) as follows :-
“13. The Permanency Act of 1981 is also an Act
enacted by the State and received the President's assent.
Section 3 of the Act contains non obstante clause and provides
protection to workmen, who are in continuous service for a
continuous period of 480 days in a period of 24 calendar months
in an industrial establishment, thus conferring a status of
permanency. 'Industrial establishment' is defined in
subSection (3) of Section 2 of the Act and in clause (e) thereof,
an ' establishment' as defined in clause 2 (6) of the Tamil
Nadu Shops and Establishments Act, 1947, is defined to be an
industrial establishment. If we go to Section 2 (6) of the Tamil
Nadu Shops and Establishments Act, it is clear that the word
'establishment' therein takes in cooperative society also. As
such, there cannot be any doubt regarding the applicability
of the Permanency Act of 1981. The word, 'industry' defined
in Section 2 (j) (q) under the Industrial Disputes Act, 1947
also makes the cooperative societies susceptible to the Act of
1947. Thus, all such workmen belonging to a class and are
afforded protection, are entitled for the benefits of the
Permanency Act of 1981 as also the Industrial Disputes Act of
1947.”
9. With reference to the above issue, the Division Bench
made an observation that “The provisions of either the Permanency Act
of 1981 or of the Industrial Disputes Act, 1947, cannot also be pressed
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into service when the appointments are ipso facto illegal and
unauthorized. We cannot accede to the contention that even if the
appointment is illegal and unauthorized, merely on the passage of time
and completion of the stipulated period of 480 days under the
Permanency Act, 1981 or 240 days under the Industrial Disputes Act,
1947, an indefeasible right accrues to an employee. Such an argument
is clearly untenable.
10. In paragraph No.16 of the said judgement, the Division
Bench made an observation that “There is a lot of difference between the
irregularity and illegality. The appointments here are not irregular but
illegal. Irregular is something which is done in an authorized manner
but while doing so, there is some procedural irregularity. Illegality is
altogether different. An action is illegal if it is contrary to law. The law
in the instant case is so clear that the appointments cannot be beyond the
permissible cadre strength.”
11. This Court would like to consider the legal principles
settled by the Constitution Bench of the Hon'ble Supreme Court in the
case of Secretary, State of Karnataka and others Vs. Umadevi and
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others reported in (2006) 4 SCC 1. The Constitution Bench also
reiterated that the benefit of regularization or permanent absorption
cannot be granted in violation of the recruitment Rules in force.
12. Let us look into the spirit of the judgement little later.
Coming back to the judgement of the Division Bench, in the case of
L.Justine Vs. Registrar of Co-operative Societies, which was the matter
went to the Apex Court and in the case of Uma Rani Vs. Registrar of
Co-operative Societies reported in (2004) 7 SCC 112, the Apex Court
also confirmed the views of the Division Bench in the case of L.Justine
Vs. Registrar of Co-operative Societies and for better appreciation,
paragraph Nos.24 to 41 are extracted hereunder :-
“24. Let us now consider the extent to which the provisions
of the 1981 Act would apply to the fact of the present case.
25. The 1981 Act applies only to industrial establishments.
Industrial Establishment has inter alia been defined to mean "an
establishment as defined in clause (6) of Section 2 of the Tamil
Nadu Shops and Establishments Act, 1947 (Tamil Nadu Act 36 of
1947)".
26. Establishment has been defined in Section 2(6) of the
Tamil Nadu Shops and Establishments Act, 1947 as under:
"2. (6) 'Establishment' means a shop, commercial
establishment, restaurant, eating house, residential hotel, theater
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or any place of public amusement or entertainment and includes
such establishment as the State Government may by notification
declare to be an establishment for the purpose of this Act."
27. Mr. Balakrishnan urged that the cooperative societies
are Commercial Establishments.
28. Whether a Cooperative Society would be a commercial
establishment or not would essentially be a question of fact. It
cannot be said keeping in view the legislative intent that all
cooperative societies would be 'commercial establishments' within
the meaning of the Tamil Nadu Shops and Establishments Act,
1947. It, therefore, appears that the impugned Government Order
has been issued by the State without proper application of mind. It
has furthermore not been stated in the impugned Government
Order that all the cooperative societies are commercial
establishments within the meaning of Section 2(6) of the Tamil
Nadu Shops and Establishments Act, 1947.
29. The Cooperative Societies and the Land Development
Banks are governed by the statutes under which they have been
created as also the Rules and bye laws framed thereunder. The
cooperative societies are obligated to follow the cooperative
principles as laid down in the Act and the Rules framed
thereunder.
30. The State had framed rules in exercise of its power
conferred upon it under Section 180 of the 1983 Act in the year
1988. Rule 149 of the 1988 Rules provides for a complete code as
regard the mode and manner in which appointments were
required to be made and the process of appointments is required
to be carried out. In terms of the said Rule, requirements to
possess educational qualification and other qualifications had
been laid down. One of the essential qualifications laid down for
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holding certain posts is 'undergoing cooperative training and
previous experience'.
31. At this juncture, we may notice some of the provisions
contained in Rule 149 of the 1988 Rules.
32. Sub-rule (3) of Rule 149 read as under:
"149. (3)(a) No appointment by direct recruitment to any
post shall be made except by calling for from the societies
applications from their employees who possess the qualifications
for the post and unless the Government have accorded special
sanction for recruitment by advertisement in dailies, by also
calling for a list of eligible candidates from the Employment
Exchange.
(b) Where the Employment Exchange issues a non-
availability certificate or the Government have accorded special
sanction for recruitment by advertisement in dailies, the society
shall invite applications from candidates including those working
in other societies by advertisements in one English daily and two
Tamil dailies having circulation within the area of operations of
the society approved by the Government for the purposes of issue
of Government advertisements.
(c) Every appointment by direct recruitment shall be made
by holding written examination and interview or by holding only
interview as decided by the board and on the basis of the rank
given with reference to the marks obtained in the written
examination, if any, and the marks awarded in the interview:
Provided that nothing contained in this sub-rule shall
apply to any of the posts for the recruitment of which a
Recruitment Bureau has been constituted under section 74 or in
respect of which common cadre of service has been constituted
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under section 75;
Provided further that nothing contained in this sub- rule
shall apply to appointments of dependents of the employees of any
society who died or medically invalidated while in service."
33. Sub-rule (4) of Rule 149 mandates that no person shall
be appointed to the service of a society if he has on the date on
which he joins the post, attained the age of thirty years and in the
case of persons belonging to Scheduled Castes and Scheduled
Tribes thirty-five years.
34. Sub-rule (25) of Rule 149 provides that the principle of
reservation of appointment for Scheduled Castes/ Scheduled
Tribes and Backward Classes followed by the Government of
Tamil Nadu for recruitment to the State shall apply.
35. No appointment, therefore, can be made in deviation of
or departure from the procedures laid down in the said statutory
rules.
36. The terms and conditions of services are also laid
down in the said rules.
37. The 1983 Act was furthermore amended in the year
1995 providing for cadre strength which is directly relatable to
the income of the cooperative societies.
38. Provisions of the Act and the Rules framed thereunder
reflect the legislative recruitment policy. The said provisions are,
thus, mandatory in nature.
39. Regularisation, in our considered opinion, is not and
cannot be the mode of recruitment by any "State" within the
meaning of Article 12 of the Constitution of India or any body or
authority governed by a Statutory Act or the Rules framed
thereunder. It is also now well-settled that an appointment made
in violation of the mandatory provisions of the Statute and in
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particular ignoring the minimum educational qualification and
other essential qualification would be wholly illegal. Such
illegality cannot be cured by taking recourse to regularisation.
(See State of H.P. Vs. Suresh Kumar Verma and Another, (1996) 7
SCC 562).
40. It is equally well-settled that those who come by
backdoor should go through that door. (See State of U.P. and
Others Vs. U.P. State Law Officers Association & Others, (1994) 2
SCC 204).
41. Regularisation furthermore cannot give permanence to
an employee whose services are ad-hoc in nature.”
13. In the case of Secretary, State of Karnataka and others
Vs. Umadevi and others [Appeal (Civil) 3595-3612 of 1999: Dated
10.04.2006] (hereinafter referred to as “Umadevi case”), the Constitution
Bench also reiterated by holding that equal opportunity, being a
constitutional mandate, the irregular or illegal appointments cannot be
confirmed. The persons entered into public services through back door,
must be allowed to go from the door through which they have entered
into. Contrarily, mere length of service cannot be taken as a ground for
granting the benefit of regularization or permanent absorption. Thus,
engaging an employee in an illegal or irregular manner by some
authorities or if the engagement is through some contractors, then they
cannot claim permanent status in service by virtue of the general Act viz.,
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the Conferment of Permanent Status to workman Act, 1981 and such a
claim cannot be considered by the authorities concerned as well as by the
High Courts. In such circumstances, the entire constitutional scheme is
violated.
14. The Constitutional scheme of appointments are ought to
be followed scrupulously by the authorities competent, while undertaking
the process of selection and appointment. In the event of engaging
persons on temporary or casual basis, thereafter, granting the benefit of
confirmation in violation of the service regulation, undoubtedly is in
violation of the Constitutional scheme of appointments and such a
situation would amount to an unconstitutional act and therefore, Courts
cannot consider such benefit of regularization or permanent absorption,
merely on the ground that they have completed 480 days of service or
served for a considerable length of time.
15. The learned counsel appearing on behalf of the
respondent / Board contended that the Tamil Nadu Electricity Board is
not an Industrial Establishment defined under the provisions of the Act
itself. Section 3 of the Tamil Nadu Industrial Establishments
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(Conferment of Permanent Status to Workmen) Act, 1981 states that the
Act applies to every industrial establishment. The word 'Industrial
Establishment' is defined in Section 2(3) of the Act which reads as under:
“(a) a factory as defined in clause (m) of section 2 of the
Factories Act, 1948 (Central Act LXIII of 1948) or any place which
is deemed to be a factory under sub-section (2) of section 85 of that
Act; or
(b) a plantation as defined in clause (f) of section 2 of the
Plantations Labour Act, 1951 (Central Act LXIX of 1951); or
(c) a motor transport undertaking as defined in clause (g) of
section 2 of the Motor Transport Workers Act, 1961 (Central Act
27 of 1961); or
(d) a beedi industrial premises as defined in clause (i) of
section 2 of the Beedi and Cigar Workers (Conditions of
Employment) Act, 1966 (Central Act 32 of 1966); or
(e) an establishment as defined in clause (6) of section of
the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu
Act XXXVI of 1947); or
(f) a catering establishment as defined in clause (1) of
section 2 of the Tamil Nadu Catering Establishments Act, 1958
(Tamil Nadu Act XIII of 1958); or
(g) any other establishment which the Government may, by
notification, declare to be an industrial establishment for the
purpose of this Act.”
16. Relying on the above provisions, learned counsel for the
respondent / Board states that the Act itself is not applicable in respect of
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the employees of the Tamil Nadu Electricity Board. If they are working
in an Industrial Establishment, as defined under Section 2(3) of the Act,
then alone the Act would be applicable.
17. The benefit of regularization of these contract labourers
were earlier granted by the Tamil Nadu Electricity Board, pursuant to the
recommendations of Justice Khalid Commission long back and
subsequently, such confirmations are granted strictly in accordance with
the terms and conditions of the 12(3) Settlement and not otherwise.
18. All appointments by the 'State' must be made only under
the Constitutional scheme and by providing equal opportunity to all the
eligible candidates, who all are aspiring to secure public employment
through open competitive process. It is not as if, the authorities can
recruit the persons at their whims and fancies or of their choice and after
allowing such employees to work for a considerable length of time, then
provide confirmation, regularization or permanent absorption, which is
otherwise in violation of the service Rules of the Tamil Nadu Electricity
Board. Such a practice would amount to unconstitutionality and further,
the equality clause enunciated in the Constitution is defeated. Lakhs and
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lakhs of youth of this great Nation are burning their midnight lamp for
securing public employment by participating in the open competitive
process. The constitutional right of all these eligible candidates cannot be
denied or deprived by the State or its authorities. In the event of denial
of such constitutional rights of all eligible candidates, the entire
appointment becomes unconstitutional and in violation of the
Constitutional mandate.
19. This being the view to be adopted, this Court is of an
opinion that it is not as if the employees can claim confirmation merely
on the ground that they have served for 480 days, which is otherwise in
violation of the service regulation constituted by virtue of the powers
conferred under the Electricity Act, which would prevail over the general
laws. The service regulations are constituted under the Constitutional
scheme more specifically by providing Rules of reservation, communal
rotations and other reservations for the priority categories. In the event of
granting confirmation in the routine manner in respect of these
employees, the Constitutional Right of all other eligible candidates to
participate in the recruitment process is not only defeated, but their rights
are infringed. Thus, the order of the Inspector of Labour is in violation of
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the constitutional scheme of appointment as well as in violation of the
service regulations issued by the Tamil Nadu Electricity Board by virtue
of the powers conferred under the Electricity Act and such service
regulations are apparently on par with the service regulations of the
Government employees of the Government of Tamil Nadu.
20. The practice now prevailing in respect of grant of
permanent absorption in Government Departments as well as in the
Boards and Corporations are that the Contract Labourers / Temporary
employees / Daily Wage employees, on completion of 240 days of
services or 480 days of services, approaching the Inspectors of Labour,
under the provisions of the Conferment of Permanent Status Act. The
Inspector of Labour is also not considering the legal implications and the
principles settled by the Constitutional Courts. They are routinely
passing orders, granting Conferment of Permanent Status by verification
of certain service certificate or the Attendance Registers. Few set of
employees are directly filing writ petitions before the High Court under
Article 226 of the Constitution of India. The High Courts also on some
occasions, issued directions to consider their representations. Such
directions would do no service to the cause of justice. Those litigants are
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back again before the Court by way of another writ petition. Ultimately,
these back door appointees were attempting to get regularization and
permanent absorption, one way or other in an irregular manner by
abusing the process of law or on extraneous considerations before the
authorities competent. Such a practice undoubtedly would amount to
violation of the Constitutional mandates and further, infringe the rights
of all other eligible citizens, who all are aspiring to secure public
employment through open competitive process in accordance with the
recruitment rules in force.
21. Uniformity in appointments, more specifically, in public
services are to be scrupulously maintained by the authorities competent.
The prevailing situation is that the authorities, at their whims and fancies
and by way of Favouritism and Nepotism, engaging such Contract
Labourers / Temporary employees and allowing them to continue even
after the expiry of the project or for a considerable length of time by
providing a false hope and those labourers are approaching the Inspector
of Labour or the High Courts or the Government for regularization and
permanent absorption.
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22. The Courts have repeatedly held that the terms and
conditions of the appointments as far as the Government departments,
Boards and Corporations are concerned, it must be unambiguous and
clear. Ambiguity would create unnecessary issues and would result in
unconstitutionality. Thus, terms and conditions of appointment, even if a
temporary appointment or a Contract appointment to fulfill the needs of
the project or the scheme, must be specific and the employee must
understand that he cannot claim any right over and above the terms and
conditions, which he had accepted at the time of appointment. This
exactly is the reason why the Constitution Bench also reiterated that the
Back door appointments must be stopped at once.
23. In paragraph 54 of the Umadevi Case, the Constitution
Bench in unequivocal terms, held that any other judgment running
counter to the principles laid down in 'Umadevi Case' are denuded to
loose its status as a precedent. Thus, those judgments rendered
subsequently can have no binding effect for the purpose of granting the
relief of regularization or permanent absorption.
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24. Large number of writ petitions are filed even before the
High Courts based on the orders passed by the Inspectors of Labour
under the provisions of the Conferment of Permanent Status Act. Perusal
of those orders reveal that none of the legal grounds as well as the
judgments of the Constitutional Courts were considered by the Inspectors
of Labour. Contrarily, they are passing orders in a mechanical manner
and based on which, the Contract Labourers are claiming permanent
absorption. No doubt, the Courts sometimes, may take a lenient view,
considering the plight of these Contract Labourers. Equally, the Courts
are bound to consider the Constitutional rights of all other young people
of this great Nation, whose rights are infringed. Those young people of
this great Nation will get frustrated. If the appointments to the public
services are not regulated and, if the back door appointments are allowed
to be continued, then the very constitutional scheme of appointments are
diluted and thereby, we are creating an unconstitutionality in perpetuity,
where young minds will lose their hope for their future.
25. Thus, this Court is of an opinion that such a practice of
granting confirmation of services must be stopped. All appointments are
to be regulated. Appointments are to be made only under the
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constitutional schemes. Equal opportunity in public employment is the
Constitutional mandate. All eligible persons must be provided with an
opportunity to secure employment through recruitment process. The
appointments are to be made by following the Rule of Reservations. As
per the rules, all these aspects are to be scrupulously followed, then only
the system of Constitutional scheme of appointments can be restored in
its entirety and all such irregularities, illegalities in appointments can be
stopped at once.
26. In the present writ petition on hand, the contract labourer
was engaged by the Private Contractors and the Tamil Nadu Electricity
Board entered into an agreement with those Private Contractors.
However, a one time measure was taken to confirm the services of the
Contract labourers, who were engaged by Private Contractors. However,
there is no possibility of merit assessment. There is no possibility of
implementation of Rule of Reservation or other recruitment rules. If such
appointments are made in a large scale, then Rule of Reservation is
violated. Constitutional provisions are violated and most importantly, the
efficiency level in public administration is compromised. Neutralizing
the effective public administration is unconstitutional. The Constitution
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itself contemplates that efficiency level in public administration must be
maintained. Only if the appointments are regulated in accordance with
the constitutional schemes, then alone, the efficiency level in public
administration can be maintained. Therefore, all such back door
appointments are to be stopped and grant of Conferment or Permanent
absorption now cannot be granted in violation of the legal principles
settled by the Constitution Bench of the Apex Court of India.
27. This Court also reiterated in many number of judgments
that all such back door entries must not be considered for the purpose of
granting confirmation. However, in respect of the Contract labourers of
the Electricity Board, Justice Khalid Commission has made certain
recommendations 28 years back. Those recommendations were
implemented and the eligible Contract Labourers were granted with the
benefit of Confirmation. Now, after a lapse of more than 28 years, the
same recommendations cannot be continued for the purpose of granting
confirmation of services. Eligible candidates during the relevant point of
time were shortlisted and the benefit of confirmation was extended and
therefore, the said benefit cannot be extended indefinitely even after a
lapse of three Decades. That apart, the petitioner has filed the present
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writ petition after a lapse of four years from the date of passing of the
order by the Inspector of Labour in Proceedings dated 22.10.2010. Thus,
this Court is not inclined to grant any such relief of regularization,
permanent absorption or confirmation of services as the same is in
violation of the Constitutional principles as well as the legal Precedent
settled by the Constitution Bench of the Hon'ble Supreme Court of India.
28. In the present case, the application is filed before the
Inspector of Labour and the grounds raised by the writ petitioner in
respect of the application of the Act as well as the service regulations in
force in the Tamil Nadu Electricity Board were not considered and the
Inspector of Labour has passed the order without considering all these
legal grounds and thus, this Court has no hesitation in coming to the
conclusion that the order of the Inspector of Labour is perverse and not
in consonance with the legal principles settled by the constitutional
Courts across the country as well as by the Apex Court of India.
29. However, it is made clear that the case of the writ
petitioner is also to be considered with reference to the judgment of the
Hon'ble Division Bench of this Court rendered in the case of
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Superintending Engineer, Nagapattinam Electricity Distribution
Circle Vs. Inspector of Labour, Pedari Koil Street, Thiruvarur,
reported in 2009 (4) MLJ 472 and the 12(3) Settlement dated 10.08.2007
and also in the light of B.P.(Chairman)No.9, Administrative Branch,
dated 09.01.2008. If the petitioner are otherwise eligible and qualified
with reference to the terms and conditions of the 12(3) Settlement as well
as the Board proceedings, their cases are to be considered by verifying
the eligibility criteria and other requisite qualifications as prescribed in
the above orders.
30. Under these circumstances, it is made clear that so far as
the order passed by the Inspector of Labour is concerned, the same
cannot be insisted upon and the petitioner cannot seek permanent
absorption based on any such order passed by the Inspector of Labour, as
the Inspector of Labour has no authority to issue any such direction as
discussed above. However, the case of the writ petitioner is to be
considered with reference to the 12(3) Settlement arrived between the
Tamil Nadu Electricity Board and the Trade Unions on 10.08.2007 and
the consequential Boar Proceedings issued in this regard in
B.P.(Chairman)No.9, Administrative Branch, dated 09.01.2008.
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WP No.5976 of 2014
31. Accordingly, the case of the writ petitioner is directed to
be considered by the third respondent with reference to the terms and
conditions of the 12(3) Settlement as well as the Board Proceedings in
B.P.(Chairman)No.9, Administrative Branch within a period twelve
weeks from the date of receipt of a copy of this order. The petitioner is
directed to enclose a copy of the representation or submit a fresh
representation and other relevant documents to establish his services with
the Tamil Nadu Electricity Board along with a copy of this order
enabling the third respondent to consider his case with reference to the
terms and conditions.
32. With the above observations and directions, this writ
petition stands disposed of. However, there shall be no order as to costs.
08.06.2022
Speaking/Non-speaking order
Index: Yes/No
Internet: Yes
ars
https://www.mhc.tn.gov.in/judis
WP No.5976 of 2014
To
1. The Tamil Nadu Electricity Generation &
Distribution Corporation Ltd.,
Represented by the Chairman,
No.144, Annasalai,
Chennai - 2.
2. The Chief Engineer (Personnel)
The Tamil Nadu Electricity Generation &
Distribution Corporation Ltd.,
No.144, Annasalai,
Chennai - 2.
3. The Superintending Engineer,
The Tamil Nadu Electricity Generation &
Distribution Corporation Ltd.,
Dharmapuri-5.
https://www.mhc.tn.gov.in/judis
WP No.5976 of 2014
S.M.SUBRAMANIAM, J.,
ars
WP No.5976 of 2014
08.06.2022
https://www.mhc.tn.gov.in/judis
