Madras High Court
V.Thangapandiyan vs The Chairman (Administration) on 9 March, 2022
W.P.(MD) No.4826 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.03.2022
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)Nos.4826, 4827, 4829, 4830, 4832
and 4833 & 4834 of 2020
In W.P.(MD)No.4826 of 2020
V.Thangapandiyan ... Petitioner
-Vs-
1.The Chairman (Administration)
TANGEDCO
(formerly Tamil Nadu Electricity Board),
No.800, Anna Salai,
Chennai – 600 002.
2.The Chief Engineer (Personnel),
TANGEDCO
Anna Salai,
Chennai.
3.The Superintending Engineer,
Theni Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Theni – 625 531.
4.The Assistant Executive Engineer,
Construction & Improvement
Tamil Nadu Electricity Board,
Periyakulam, Theni District. ... Respondents
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
Prayer: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, calling for
the records relating to the impugned order of the 3rd respondent in
Lr.No.1326/94/SE/TNI/Adm.O/Adm.II/ A.1/F./2020-6 dated
20.02.2020 quash the same and consequently direct the
respondents herein to approve the petitioner appointment from
1991 and regularize the petitioner employment as permanent
status on par with similarly placed persons and grant all
consequential benefits thereof as per conditions in paras 3 & 5 of
the proceedings in Per.B.P.(CHAIRMAN)No.9 dated 9.1.2008
issued by Chief Engineer / Personnel (I/C), Tamil Nadu Electricity
Board and in accordance with law within a reasonable time as may
be fixed by this Court.
For Petitioner : Mr.S.Alagarsamy
For Respondents : Mr.T.S.Gopalan
COMMON ORDER
The orders of rejection, rejecting the claim of the writ
petitioners for grant of permanency in proceedings dated
20.02.2020 and 19.02.2020 are under challenge in the present
writ petitions.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
2. The petitioners admittedly were engaged as a contract
labours in Periyakulam Division for Constructions and
Improvements of the TANGEDCO Scheme. The claim of the
petitioners was that they were continuously engaged for 480 days
and therefore, they are entitled for permanent status under the
Tamil Nadu Industrial Establishment (Conferment of Permanent
Status to Workmen) Act, 1981
3. The issue of similar nature in respect of contract
employees engaged by the TANGEDCO was considered by this
Court and this Court passed an order on 24.04.2018, directing the
authorities to verify the original service records of those contract
labourers and find out their eligibility for grant of permanent status
and pass appropriate orders. Pursuant to the said direction, the
TANGEDCO, undertook the process of verification and in the
present case also, the respondents have considered the service
records and rejected the claim of the writ petitioners.
4. In respect of the rejected claim, another set of writ
petitions were filed and this Court elaborately adjudicated the
issues involved on merits on the issues raised by the parties to the
writ petitions and the Judgment was delivered on 24.10.2019 in
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
W.P.Nos.18275 of 2019 etc., batch and the relevant portion of the
Judgment is extracted hereunder:-
“5.In the earlier writ petition filed for
implementation of the order of the Inspector of Labour,
this Court issued a direction to consider the claim of the
writ petitioners in the light of 12(3) Settlement as well
as the proceedings issued by the Electricity Board in
B.P.No.9, Administrative Branch, dated 09.01.2008.
Such a direction was given on the ground that individual
facts regarding the employment are to be verified with
reference to the original documents as well as the
evidences available. Such disputed errors cannot be
adjudicated in writ proceedings under Article 226 of the
Constitution of India. Under these circumstances, this
Court directed the competent Authorities of the
Electricity Board to receive the documents and
representations from the employees concerned, the
conduct an enquiry and pass a speaking order with
reference to claim for implementation of the orders of
the Inspector of Labour passed in favour of the
workman.
6.Such an exercise was done by the competent
Authorities and labour Court, and an order was passed
in proceedings dated 31.05.2019, which is impugned in
the present writ petition. Admittedly, the workman has
submitted their representations afresh along with the
documents to establish their employment or otherwise.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
7.The learned counsel appearing on behalf of the
respondent reiterated that the Electricity Board has
meticulously prepared questionnaire in order to provide
genuine hearing and opportunity to those affected
employees. Various questions were formulated and an
enquiry was conducted to find out whether these
workmen are entitled for the benefit of permanent
absorption or not. Accordingly, in para 9 of the
impugned order, the Authorities made a finding which is
extracted hereunder;
“9.Your representation has been
examined on the documents submitted by
you and the details given by the concerned
EDC in which you allege to have worked as
Contract Labour by the committee formed in
term of B.P.No.9 dated 09.01.2008. Based
on the records the Committee has found
that:
a. You claim to have worked as a
Contract labour from 2004. You have
submitted service certificates to show that
you have worked as contract labour. We
have verified our records. We find that you
have worked in some chit agreements in
2007 alone.
b. The certificates do not
establish the days or dates you had worked
in a year. Had you really worked
continuously as given in the the certificates,
you would have certainly been identified the
committee.
c. Admittedly you were not
identified by the committee constituted by
the Board for identification of Contract
Labourers on 08.08.1998 or by the
committee formed in terms of settlement
dated 10.08.2007.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
d. Admittedly you have not
received ex-gratia payment in any of the
years. If you worked continuously as stated
in the certificates, you would have certainly
received the exgratia payments which the
Board to paid to contract labourers.
e. You have worked only in the
year 2007 as per the available records.
f. A scrutiny of the records
indicate that at no point of time you have
worked for 240 days in a year or 480 days in
24 months.
g. Even going by the records
given by you had not worked continuously or
for 480 days in 24 calendar months. Even as
per your claim you have worked is 2 PCB's
in the year 2007. This is the maximum you
have worked in any year. Even going by you
own claim, you could not have worked for
240 days in a year or 480 days in 24
calendar months.
10.The above facts go to show that, you had
at best worked in an intermittent manner and not
continuously. Due to which you have not received ex-
gratia payment in any of the years. Had you been
engaged regularly you would have been identified by
the committee on 08.08.1998 or in 11/2007 and would
have been absorbed. Given that your engagement was
intermittent you are not eligible for absorption.
11.Further you last worked a Contact
Labour in the year 2007 you have not challenged your
disengagement. Given the limitation prescribed under
the Industrial Disputes Act, the disengagement has
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
become final. Therefore, you cannot be considered for
absorption on the ground that the alleged relationship
of master and servant snapped as early as 2007.”
8.Pursuant to the findings of the competent
authorities in the impugned order, this Court is of the
opinion that the eligibility criteria and the requisite
qualifications etc., considered for grant of permanent
absorption in the 12(3) Settlement as well as in the
proceedings No. B.P.No.9, Administrative Branch, dated
09.01.2008 were not met out in respect of the writ
petitioners in the present writ petitions. In other words,
the writ petitioners were found not eligible for
permanent absorption with reference to 12(3)
Settlement as well as the proceedings issued by the
Tamil Nadu Electricity Board in B.P.No.9 Administrative
Branch, dated 09.01.2008. The respondent found that
the writ petitioners were not identified by the
Committee constituted by the Board for identification of
contract labourers dated 08.08.1998, in terms of 12(3)
Settlement dated 10.08.2007. When the writ petitioners
were not identified either by the Committee constituted
or benefited by 12(3) Settlement, they are not identified
for benefit of permanent absorption. This apart, it is
held that the ex-gratia prescribed is not received by the
writ petitioners.
9.For all these reasons, the claim of the writ
petitioners is rejected. This Court does not find any
infirmity in the order passed by the Authorities of the
Tamil Nadu Electricity Board. The learned counsel
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
appearing on behalf of the respondent made a
submission that the writ petitioners were disengaged
from service in the year 2007 onwards, and in some
cases, 2008 onwards.
10.The writ petitioners were admittedly not in
employment or in service with effect from the year
2007-08. Therefore, they are not entitled to raise any
dispute in this regard. Such disengagement was of the
year 2007 and 2008, to substantiate his contention, the
learned counsel appearing on behalf of the respondent
cited the judgment of Oshiar Prasad & others Vs.
Sudamadih Coal Washery, reported in (2015) 4 SCC 71
and the relevant paragraphs of the said judgment are
extracted herein;
“23. Coming now to the facts of this case, it
is an admitted case that the services of the appellants
and those at whose instance the reference was made
were terminated long back prior to making of
the Oshiar Prasad & Ors vs Emp.In Rel.To Mgt.Of
S.C.Washery ... on 2 February, 2015. These workers
were, therefore, not in the services of either Contractor
or/and BCCL on the date of making the reference in
question. Therefore, there was no industrial dispute that
"existed" or "apprehended" in relation to appellants'
absorption in the services of the BCCL on the date of
making the reference.
24.Indeed a dispute regarding
the appellants' absorption was capable of
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
being referred to in reference for
adjudication, had the appellants been in
the services of Contractor or/and BCCL.
But as said above, since the appellants'
services were discontinued or/and
retrenched (whether rightly or wrongly)
long back, the question of their absorption
or regularization in the services of BCCL,
as claimed by them, did not arise and nor
this issue could have been gone into on its
merits for the reason that it was not
legally possible to give any direction to
absorb/regularize the appellants so long
as they were not in the employment.
25. It is a settled principle of
law that absorption and regularization in
the service can be claimed or/and granted
only when the contract of employment
subsists and is in force inter se employee
and employer. Once it comes to an end
either by efflux of time or as per the terms
of the Contract of employment or by its
termination by the employer, then in such
event, the relationship of employee and
employer comes to an end and no longer
subsists except for the limited purpose to
examine the legality and correctness of its
termination.
26. In our considered opinion,
the only industrial dispute, which existed
for being referred to the Industrial
Tribunal for adjudication was in relation
to termination of appellants' employment
and - whether it was legal or not? It is an
admitted fact that it was not referred to
the Tribunal and, therefore, it attained
finality against the appellants.
27. In our considered opinion,
therefore, the reference, even if made to
examine the issue of absorption of the
appellants in the services of BCCL, the
same was misconceived.”
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
11. In para 27 of the above judgment, the Hon'ble
Supreme Court held that the reference, even if made to
examine the issue of absorption of the appellants in the
services of BCCL, the same was misconceived. Thus, the
disengagement which was effected in the year 2007-08
would not provide any right for claiming right of
absorption after this length of time and after the
provisions of Section 2A of the I.D.Act was amended,
prescribing the limitation period for raising an
industrial dispute which also expired long back in the
present case.
12. This being the circumstances of the case, the
reasons stated in the impugned order are candid and
convincing. In the absence of establishing any right for
absorption within the prescribed time and with
reference to the criterias as fixed in the 12(3)
Settlement as well as in the Board Proceedings in
B.P.No.9 Administration Branch, dated 09.01.2008, this
Court cannot grant the benefit of permanent absorption
in violation of the recruitment rules and as per the one
time scheme issued pursuant to the recommendations of
Hon'ble Justice Khalid Committee. The writ petitions are
devoid of merits and the same are therefore dismissed.
No costs.”
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
5. In view of the said Judgment, the relief as such sought for
in the present writ petitions cannot be granted. Accordingly, the
writ petitions stand dismissed. No costs.
09.03.2022
Index : Yes/No
Internet: Yes/No
MPK
To
1.The Chairman (Administration)
TANGEDCO
(formerly Tamil Nadu Electricity Board),
No.800, Anna Salai,
Chennai – 600 002.
2.The Chief Engineer (Personnel),
TANGEDCO
Anna Salai,
Chennai.
3.The Superintending Engineer,
Theni Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Theni – 625 531.
4.The Assistant Executive Engineer,
Construction & Improvement
Tamil Nadu Electricity Board,
Periyakulam, Theni District.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.4826 of 2020
S.M.SUBRAMANIAM, J.
MPK
W.P.(MD)Nos.4826, 4827, 4829, 4830, 4832
and 4833 & 4834 of 2020
09.03.2022
https://www.mhc.tn.gov.in/judis
