Madras High Court

The Management vs 2 S. Manavalan on 7 August, 2023

W.A. No.1959 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.08.2023

CORAM:

THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR

W.A. No.1959 of 2023 & C.M.P. No.16695 of 2023

The Management
Tamil Nadu State Transport Corporation
(Villupuram-III) Ltd.
Kancheepuram Region Appellant
v
1 The Presiding Officer
Principal Labour Court
Chennai 600 104

2 S. Manavalan Respondents

Writ Appeal filed under Clause 15 of the Letters Patent challenging the
order dated 19.09.2022 passed in W.P. No.25340 of 2009.
For appellant Mrs. S. Pavithra
R1 Court
For R2 Mr. V. Ajay Khose

JUDGMENT

(delivered by S. VAIDYANATHAN, J.)

For the sake of clarity and convenience, the appellant, the first respondent

and the second respondent will be referred to as the Corporation, Labour Court

and workman, respectively.

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W.A. No.1959 of 2023

2 The facts leading to the filing of this writ appeal could succinctly be

stated thus:

2.1 The workman, who was born in 1974, joined at the age of 14, as a

Cleaner in the canteen attached to Thanthai Periyar Transport Corporation (for

short “TPTC”) on 16.04.1987. After the formation of MGR Transport Corporation

(for short “MGRTC”) on 01.04.1992, the employees of TPTC were shifted to

different Transport Corporations. Out of 26 employees whose names were

recommended to be made permanent, 23 were directed to be made permanent in

TPTC and 3, including the workman, were sent to MGRTC. Though the other 2

workers were made permanent, the workman was not, which resulted in his non-

employment.

2.2 Hence, seeking reinstatement in service with continuity of service

and backwages, he raised an industrial dispute under Section 2-A(2) of the

Industrial Disputes Act, 1947, (for short “the ID Act”) in I.D. No.678 of 2003. In

the said industrial dispute, the Corporation filed an affidavit stating that the

MGRTC was formed on 01.04.1992 and that as and when services of workmen

were required, casual workmen were taken in service and they were employed on

piece-rate wages; as they were only casual labourers and they were not sponsored https://www.mhc.tn.gov.in/judis

W.A. No.1959 of 2023

by the employment exchange, they have no right to seek

employment/reinstatement/permanent status/absorption; the Corporation being a

State Government undertaking, will have to follow the rules and regulations

prescribed and there is no question of non-employment or termination of the

workman and hence, the dispute raised under Section 2-A(2) of the ID Act has got

to be dismissed.

2.3 Before the Labour Court, the workman examined himself as W.W.1

and marked 24 exhibits. On the side of the Corporation, no evidence, either oral or

documentary, was let in.

2.4 The Labour Court, while considering the evidence on record, by

taking note of Ex.W.5 dated 15.05.1990, viz., letter of the Corporation to the

Government about its decision to bring the canteen workers who have completed

two years of service as on 01.10.1986 in the appropriate time scale and to initially

place them on consolidated wage basis, and also considering that the Managing

Director of TPTC further felt that approval for regularisation of the services of the

canteen workers needs to be obtained from the Government, observed that a trend

has been set by TPTC to make permanent such of those workers who had

completed two years, but, without being sponsored by Employment Exchange. https://www.mhc.tn.gov.in/judis

W.A. No.1959 of 2023

2.5 The Labour Court further found that in the said exhibit viz., Ex.W.5,

the name of the workman, viz., Manavalan, was found at Serial No.11; a request

was made by the workman vide Ex.W.6, which was forwarded by the Branch

Manager to the General Manager vide Ex.W.7; thereafter, several requests were

made by the workman and those requests were forwarded by the Corporation to

the Government vide Ex.W.11 dated 27.05.1995.

2.6 The Labour Court, by referring, inter alia, to the letter of the TPTC

to the Government vide Ex.W.13, wherein, the details of 19 workers who were

employed by TPTC and were not terminated, out of whom, the workman is one,

rendered a finding that out of 26 workmen mentioned, 23 were employed in TPTC

and 3 were recommended to be taken by MGRTC, of whom, the workman was

also one.

2.7 Further, the Labour Court came to the conclusion that though the

name of the workman was not sponsored by employment exchange, given the

length of his service, viz., 7 years, he should not have been deprived of his

employment.

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W.A. No.1959 of 2023

2.8 The Labour Court, observing that Section 2(oo) of the ID Act is a

comprehensive one intended to cover any action of the Management to put an end

to the employment of an employee for any reason whatsoever and considering that

the denial of employment amounts to retrenchment and noncompliance of Section

25-F of the ID Act, would vitiate the order of termination, came to the further

conclusion that the Corporation has violated the mandatory provisions of the ID

Act and directed the Corporation to reinstate the workman in service with all other

attendant benefits, but, without backwages, which award was assailed by the

Corporation before the Single Bench. However, for his part, the workman did not

file any writ petition against deprivation of backwages.

2.9 The Single Bench, vide order dated 19.09.2022, referring to Ex.W.16,

letter dated 16.11.1995 addressed by MGRTC to the Joint Secretary to

Government, Transport Department, wherein, there is a categorical mention about

the names of three persons, including the workman and that there are three

vacancies to accommodate the workman and also Ex.W.17, note of circulation,

wherein, it is stated that the workman had been working for years together, held

that noncompliance of the statutory provisions would vitiate the order of

termination and as such, the finding of the Labour Court does not suffer from any https://www.mhc.tn.gov.in/judis

W.A. No.1959 of 2023

infirmity, illegality or perversity, requiring interference by exercise of

extraordinary jurisdiction under Article 226 of the Constitution of India.

2.10 The said order passed by the Single Judge is under assail in this writ

appeal.

3 At the outset, be it noted, the Labour Court has rendered a finding of

fact. There is a categorical admission that the workman was working as a Cleaner.

It is true that he was 14 years old at the time of appointment. The Motor

Transport Workers Act enables the employer to employ any person who is 14

years of age and an adult is one who has completed 18 years of age. What is

required under the terms of the Motor Transport Workers Act is that the employee

who is less than 18 years of age and above 14 years of age, must be required to

work for lesser hours. In the instant case, though it has been the stand of the

Corporation that the workman was required to work only for one or two hours a

day, there is no evidence let in by the Corporation before the Labour Court in

support of the said stand. It is an admitted fact that other similarly placed

workmen have been taken in service and their services regularised. Hence, there

is a clear discrimination on the ground that the name of the workman has not been

sponsored by employment exchange. At this juncture, it is apropos to point out https://www.mhc.tn.gov.in/judis

W.A. No.1959 of 2023

that the Supreme Court, in Excise Superintendent, Malkapatnam Krishna

District, Andhra Pradesh v K.B.N. Visweshwara Rao [(1996) 6 SCC 216],

has held that employment exchange alone cannot be the source of recruitment and

there should be a paper advertisement and other methodologies will have to be

followed to avoid backdoor entry.

4 As adverted to above, in this case, the workmen who had worked

with the workman have already been regularised and made permanent. In the

light of the judgment of the Supreme Court in Padma Sundara Rao and others v

State of Tamil Nadu and others [(2002) 3 SCC 533], even the Constitution

Bench judgment of the Supreme Court in State of Karnataka v Umadevi [(2006

4 SCC 1)] cannot be made applicable to the facts of this case, as the present case

is against the award of the Labour Court and there is a finding rendered by the

Labour Court with regard to the number of days of work rendered by the

workman.

5 Be that as it may, the workman is now aged around 50 years and he

has filed an affidavit dated 07.08.2023 expressing his willingness to give up

certain benefits, as could be seen from paragraph 7 therein, which is extracted

below for ready reference:

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W.A. No.1959 of 2023

“I do hereby state and declare that I am willing to forego the balance wages payable to me from the date of award upto 31.07.2023, after the adjustment of the 17B wages which I have already received and after the adjustment of the entire employer and employee PF contributions for the entire non-employment period from Marcy 1998 to 31.07.2023, if the Management does not reinstate me with continuity of service and all other attendant benefits and if the Management gives me notional fixation of pay on par with my colleagues who were originally working like me in Thanthai Periyar Transport Corporation and who were regularised in the year 1996 and by taking as if I continued in service without termination. I am prepared to join duty from the date as may be fixed by this Hon'ble Court.” 6 Since the act of the Corporation is in violation of Section 25-F of the

ID Act, and taking note of a catena of judgments which go to hold that in case of

reinstatement, the employee would be entitled to full backwages and that in all

cases, full backwages is not automatic and also in view of the affidavit filed by the

workman to the effect that he gives up certain benefits which have been in

extracted in the preceding paragraph, we direct the Corporation to reinstate the

workman within a period of one month from the date of receipt of a copy of this

judgment by depriving him of the benefits given up by him vide his affidavit of

undertaking dated 07.08.2023. It is made clear that on reinstatement, the workman

shall be paid on par with his counterparts.

This writ appeal stands disposed of in the above terms, sans costs.

Connected C.M.P. stands closed.

(S.V.N., J.) (K.R.S., J.) 07.08.2023 cad https://www.mhc.tn.gov.in/judis