Madras High Court
S.Sivaraja vs The Superintending Engineer on 5 September, 2024
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P(MD)No.23503 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.09.2024
CORAM :
THE HON'BLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.23503 of 2015
1. S.Sivaraja
2. P.Jeba Juliet
3. S.Subbulakshmi
4. S.Rajkumar,
5. P.Esakkiammal
6. C.Stephen Selvakumar
7. L.Jeyapoornakala
8. S.Jesuraja ... Petitioners
Vs
1. The Superintending Engineer,
Tirunelveli Electricity Distribution Circle,
TANGEDCO,
Maharajanagar,
Tirunelveli 627 011.
2. S.P.Construction,,
28 A, Sundaravinayagar Koil Street,
Palaya Pettai, Tirunelveli 627 008.
1/13
https://www.mhc.tn.gov.in/judis
W.P(MD)No.23503 of 2015
3. The Presiding Officer,
Labour Court, Tirunelveli. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus
calling for the records pertaining to the Common Award passed in
I.D.Nos.7,8,9,10,11,12,19 and 20 of 2015 by the third respondent, dated
07.10.2015, quash the same and consequently direct the first respondent
to reinstate the petitioners in service with back wages, continuity of
service and all other attendant benefits.
For Petitioners : Mrs.S.Iswarya
For Mrs.D.Geetha
For R1 : Mrs.P.Malini
For T.S.Gopalan & Co.
For R2 : Mr.M.Jerin Mathew
For R3 & R4 : No Appearance
ORDER
This writ petition is filed by the workmen as against the common
award passed by the Labour Court, Tirunelveli in I.D.Nos.7, 8, 9, 10, 11,
12, 19 and 20 of 2015, dated 07.10.2015.
https://www.mhc.tn.gov.in/judis
2.These industrial disputes were raised under Section 2(A)2 of the
Industrial Disputes Act as against the order of the second respondent
discontinuing their services in the call center. The petitioners were
employed as operators in the fuse of call center at Samathanapuram of
the first respondent Corporation from 21.03.2008. The petitioners claim
that they have been continuously doing the service, however, in the name
of the second respondent. They have been provided a daily wage of Rs.
250/-. The petitioners were employed in the fuse of call center of the
first respondent and this center will receive the complaints from the
customers over phone. The petitioners are expected to register the same
in a computer, which is maintained for this purpose and to intimate the
same to the concerned wireman. Accordingly, the wireman would attend
the complaints of the customer and this report will be sent to the fuse call
centre. The petitioners are also expected to inform the compliance to the
customers. Thus, according to the petitioners, the nature of work done
by the petitioners is the process of attending the fuse call for the first
respondent Corporation/Electricity Board. Some of the petitioners have
been inducted from the year 2011. However, they have been engaged in
the services in the name of the second respondent. The second
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respondent contractor was changed, however, they continued as the call
attendants in the fuse call centre of the first respondent. When the
petitioners raised the issue for regularization and for increase of wages,
they have been removed by the second respondent and therefore, they
have raised these industrial disputes before the Labour Court,
Tirunelveli.
3.The learned Counsel for the petitioners submits that they have
been working continuously in the fuse call center of the first respondent
for more than seven years, however, in the name of the second
respondent. Since they have attended the duty of the first respondent,
they have to be treated as the workers of the first respondent. The
Labour Court, Tirunelveli, has failed to consider that the second
respondent is not a registered contractor under the Contract Labour
(Regulation and Abolition) Act. However, in different names of the
contractors, the services of the petitioners were availed by the first
respondent and then, they have been terminated from service without any
notice and without conducting any enquiry. Therefore, the petitioners
have to be reinstated by the first respondent, since the contract between
the first and second respondents was not a registered contract under the
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said Act and it is non-est in law.
4.The learned Counsel for the petitioners has also referred to the
Government Order in G,O.(Ms).No.950, Labour and Employment
Department, dated 08.08.1990 and submits that the Government of Tamil
Nadu has abolished the contractor labour system in Tamil Nadu
Electricity Board with effect from 08.08.1990 and the process of
attending the fuse call is also one of the works, which has been abolished
for engaging the contract labours. Therefore, in view of this Government
order, the first respondent cannot engage any contract labour for
attending fuse calls and it is the first respondent, who has engaged the
services for attending the fuse calls. Therefore, they need to be
addressed. Though they have been registered in the name of contractors
and the contractors have been changed, the petitioners have been in
continuous service in the fuse call centre for more than seven years and
therefore, they need to be regularized. However, the Labour Court
without considering the same has erroneously passed the award which
needs to be interfered .
5.The learned Counsel for the petitioner also referred to the
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judgment rendered by the Hon'ble Supreme Court in the case of Gujarat
Electricity Board reported in 1995 II LLN 59 and submitted that in the
event, if the Government abolishes the contract labour system in respect
of an establishment, the industrial adjudicator shall decide the issue after
giving opportunity to the parties to place materials before it, whether the
work can be observed by the Principal employer or not and therefore, the
industrial disputes are maintainable before the Labour Court.
6.The learned Counsel for the first respondent submits that the first
respondent has never engaged the petitioners for the services. It is only a
contract for attending the calls from the customers and they have been
engaged by the second respondent. The second respondent is a call
centre, which has rendered the services of attending the calls of the
customers and intimating the same to the Department about any repair
works and therefore, according to the learned Counsel for the first
respondent, these petitioners have never been engaged by the first
respondent. She further submits that the first respondent is a
Government Undertaking Institution, which is guided by certain
regulations and any employment even as a daily wage, can only be made
by following the regulations and therefore, the contention of the
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petitioners is wrong and it cannot be considered for regularization of
service.
7.The learned Counsel for the first respondent has also raised a
preliminary objection that the Labour Court, Tirunelveli is not supposed
to have entertained the applications filed by the petitioners under Section
2(A)2 of the ID Act that there is no privity of contract between the
petitioners and the first respondent and therefore, there is no workman
and employer relationship between them. Hence, this application filed
by the the petitioners is not maintainable. The learned Counsel also
referred to the G.O.(MS). No.950, dated 08.08.1990 submits that the
engagement of a contract labour for fuse of call was already prohibited
by the Government w.e.f 1990 and therefore, even assuming that the
petitioners have been engaged for the purpose of attending fuse calls,
then, it must be an illegality committed by the concerned officer, which
cannot be ratified by regularization and therefore, the petitioners' claim is
not maintainable. She further submits that admittedly, even according to
the petitioners, they have been engaged for the services not only by the
second respondent and also by some other contractors and therefore, they
cannot claim that they have been continuously engaged by the second
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respondent or by the other contractors.
8.The second respondent is a call centre and the services of the
second respondent were availed for receiving the complaints from the
customers over phone and to inform the same to the Board and there is
no prohibition for engaging this service of call centres as per G.O.
(MS).No.1990.
9.The learned Counsel for the second respondent submits that the
second respondent had been given contract from 21.03.2013 to
22.03.2014 and thereafter, from 22.03.2014 to 21.03.2015 and thereafter,
the contract was not extended. The second respondent had discharged
the services of the petitioners and the same was also held to be valid by
the Labour Court. The Labour Court had further held that the petitioners
had not completed 240 days and as such, they cannot have the protection
under Section 25F of ID Act, 1947. By observing the same, the Labour
Court has held the discharge of the petitioners as valid.
10.This Court has considered the rival submissions made.
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11.The petitioners are the employees of the second respondent in a
call centre. They have raised these industrial disputes under Section
2(A)2 of the ID Act. The Labour Court has dismissed their claim as
under:
"20) Summarizing all the above discussions the
following posts emerged.
i) Admittedly the petitioners employed by the 2nd respondent
?) The contract entered between the 1st respondent and the
2nd respondent is true, genuine contract but against the G.O.
(iii)The Government already abolished contract labour
system in the Ist respondent establishment and in
contravention of the G.O. the 1st respondent employed
contract labours through 2nd respondent.
iy) As the employment itself is illegal. The services of the
petitioners cannot be regularized.
(V) The petitioners claimed relief of reinstatement with the
1st respondent and they did not seek any relief with the 2nd
respondent.
vi) The petitioners worked with the 2nd respondent only for
limited period during the second term of contract and the
contract period already expired.
As such considering all the above facts this court found that
the petitioners are not entitled to any relief much less the
relief of reinstatement with 1st respondent as claimed by them
in the written argument. Hence this court found all the
petitions are liable to be dismissed."
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12.Admittedly, the petitioners are not having any records that they
have ever served with the first respondent. Even according to them, their
services have been engaged for the purpose of call centres in the name of
one AG Engineering Works from the period 21.01.2009 to 20.01.2012
and thereafter, in the name of Mary construction from 21.01.2012 to
20.03.2013 and so on. The main contention of the petitioners is that the
process of attending the fuse call is a service to the first respondent and
the first respondent was prohibited from engaging any contract labour
pursuant to the Government Order G.O.(MS).No.950, Labour and
Employment Department, dated 08.08.1990.
13.The learned Counsel for the contractor has also pointed out that
these contractors, namely, AG Engineering Works and Mery construction
are not the registered contractors under the Contract Labour (Regulation
and Abolition) Act. They also claim that they have continuously worked
for more than 240 days and therefore, they are entitled for regularization.
He has taken a specific stand that the petitioners have never been
engaged by the first respondent and they have worked for some time in a
call centre conducted by the second respondent. There was an agreement
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between the second respondent with the first respondent for receiving the
calls from the customers to communicate the same to the first respondent,
which does not mean that they have access with the first respondent.
Moreover, the Government vide G.O.(Ms).No.950, dated 08.08.1990 has
specifically abolished the engagement of contract labour system in the
process of fuse call. Fuse call has been defined in the Government Order
is for engaging the wireman or line man and therefore, even if there is
any contract engaged by a particular officer, then, it is an illegal act as
against the Government Order, which prescribed the contract labour as
illegal as early as in the year 1980. Therefore, the petitioners cannot be
regularized for the mischief, if any, played by the concerned officer.
14.In view of the above, this Court is not inclined to interfere with
the orders of the Labour court. Accordingly, this writ petition is
dismissed. No costs.
05.09.2024
Internet :Yes
Index :Yes/No
NCC :Yes/No
LR
https://www.mhc.tn.gov.in/judis
To
1. The Superintending Engineer,
Tirunelveli Electricity Distribution Circle,
TANGEDCO,
Maharajanagar,
Tirunelveli 627 011.
2. The Presiding Officer,
Labour Court, Tirunelveli.
https://www.mhc.tn.gov.in/judis
B.PUGALENDHI, J.
LR
05.09.2024
https://www.mhc.tn.gov.in/judis
