Telangana High Court

Maturi Venkata Subba Rao College ... vs Labour Courtii, Hyd. And Ano. on 17 October, 2023

Bench: J Sreenivas Rao

  THE HONOURABLE SRI JUSTICE J SREENIVAS RAO

             WRIT PETITION No.291 of 2016

O R D E R:

In this Writ Petition the petitioners are filed seeking

Writ of Certiorari to quash the Award of the 1st respondent

in I.D.No.123 of 2012 dated 06.04.2015, published in

G.O.Rt.No.227 dated 20.05.2015 to the extent of the 2nd

petitioner and to issue consequential direction to the 2nd

respondent to regularise the service of the 2nd petitioner

with all consequential benefits.

02. Heard Sri Vedula Srinivas, learned Senior

Counsel appearing on behalf of the petitioners, Sri D.Jagan

Mohan Reddy, learned counsel for the respondent No.2 and

learned Assistant Government Pleader for Labour

appearing on behalf of respondent No.1.

03. Learned counsel for the petitioner as well as

learned counsel for respondent No.2 requested this Court

to hear the main Writ Petition instead of deciding the

vacate stay petition. With the consent of both parties,

main Writ Petition is being taken up for hearing under the

caption of Interlocutory Stage.

3.1. Learned Senior Counsel for the petitioners

submits that petitioner No.1's registered trade union is

formed by the non-teaching staff of the respondent No.2-

Engineering College and it was espousing the cause of the

non-teaching employees of the college before the Labour

Department authorities. Petitioner No.2 worked as

Assistant under the Maintenance Supervisor in the said

College since 2007. Initially, he was appointed as a Casual

Assistant in the college by Order dated 10.01.2006 on daily

wage basis and thereafter appointed as Assistant under the

Maintenance Supervisor and he was paid with a

consolidated salary of Rs.4,500/- per month and the

appointment was for a period of one year. Subsequently,

respondent No.2 had issued appointment orders to the

petitioner on yearly basis dated 31.10.2007, 19.11.2008,

01.10.2009 and 01.11.2011 and given 10% hike every

year. Though no separate order was passed after the order

dated 01.11.2011, the petitioner No.2 continued in service

as Assistant in the Maintenance Cell of the College without

any other benefits like scale of pay, leave encashment,

annual leaves, pay revision etc. However, his pay revision

was done from time to time by the respondent No.2-College

Management in respect of its employees.

3.2. He further submits that the petitioner No.1-

union referred demand for regularization of all those

persons and payment of salaries to them vide

G.O.Ms.No.153, dated 16.05.1994 and provide employment

to Smt.Anuradha, wife of deceased regular employee of the

respondent No.2-college on compassionate grounds. When

conciliation failed, the Government referred dispute

invoking the provisions under Section 10 (1) of the

Industrial Dispute Act, 1947 (for short 'the Act') to the

Labour Court and the same was numbered as I.D.No.123

of 2012 wherein specifically raised a dispute regarding

implementation of Memorandum of Understanding dated

25.03.2004 with regard to regularization of service with

regular scales on par with the Government Scales in

compliance of Memo No.E4/21545/05 dated 29.10.2005

issued by the Director Technical Education and seeking

compassionate appointment of Mrs.Anuradha as regular

employee since her husband died during the service and

also payment of wages to 11 persons as mentioned in the

claim statement and also raised dispute of non-payment of

minimum wages to 11 workers as mentioned in the claim

statement and also they are entitled for regularization on

par with others.

3.3. He vehemently contended that the impugned

Award passed by the Labour Court dismissing the

reference is contrary to the provisions of the 'Act' and also

contrary to G.O.Ms.No.153, dated 16.05.1994 issued by

the Government. He further contended that during the

course of cross-examination MW1 specifically admitted

that pursuant to G.O.Ms.No.153 dated 16.05.1994 the

respondent-college regularized the services of other

employees who are juniors than the petitioners. Labour

Court without properly considering the evidence on record,

passed the impugned Award and the same is contrary to

law.

3.4. He further contended that the Labour Court

erroneously came to conclusion that the claim statement

was not signed by the proper person and the ID is liable to

be dismissed, in the absence of any basis and evidence.

Admittedly, at the instance of recognized Union only

Government referred the dispute/reference to the Labour

Court and the Competent Person i.e., General Secretary

signed claim statement, merely because the said person

was removed subsequent to filing of claim statement will

not have any impact.

04. Per contra, learned counsel appearing for

respondent No.1 contended that the petitioner No.1 union

is claiming benefits as per G.O.Ms.No.153 and the same is

not applicable to the members of the petitioner's union. As

per Memorandum of Understanding dated 25.03.2004 only

few persons completed five years of service and their

services were regularized and as on the date of entering

Memorandum of Understanding dated 25.03.2004 the

members of the petitioner's union have not completed

requisite years of service and they are not entitled to claim

the very same benefit of regularization of services and

further contended that the disciplinary proceedings were

pending against petitioner No.2 and he is not entitled to

claim regularization.

4.1 The Labour Court after considering the

contentions of respective parties, the oral and documentary

evidence on record and also after hearing both parties

passed the impugned Award by giving cogent findings and

there is no illegality or irregularity in the said Award, and

the scope of judicial review under Article 226 of the

Constitution of India is very limited and the same is liable

to be dismissed.

05. In support of his contentions, he relied upon

following decisions:

i. State of Rajasthan and others v. Dayalal and others 1.

ii. Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare and another 2.

iii. Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and others 3.

iv. Yogesh Mahajan v. Professor R.C. Deka, Director, All India Institute of Medical Sciences 4.

(2011) 2 SCC 429

(2016) 1 SCC 521

(2014) 4 SCC 769

(2018) 3 SCC 218

06. Having considered the rival submissions made

by respective parties and upon perusal of the material

available on record, including the impugned Award passed

by the Labour Court, it is undisputed fact that the

petitioner's union had approached the Joint Commissioner

of Labour as well as Deputy Commissioner of Rangareddy

District requesting to direct the respondent No.2 to

implement Memorandum of Understanding dated

25.03.2004 with regard to regularization of 11 employees

services, with regular scale of pay on par with Government

scales in terms of Memo No.E4/21545/2005, dated

29.10.2008, issued by the Director of Technical Education,

and to provide compassionate appointment to

Mrs.Anuradha, as and also other claims. When

conciliation procedures failed between the petitioner No.1-

union and respondent No.2, the Joint Commissioner of

Labour after following due procedure of law issued

proceedings No.B/3419/2012, dated 12.12.2012,

submitted report to government and thereafter,

government referred the dispute invoking the provisions of

the Act to the Labour Court to decide the '4' points. It is

very much relevant to extract the said four points which

reads as under:

(i). Whether the management is justified in not regularizing (11) employees as shown in the Annexure-I, in accordance with G.O.Ms.No.153 Edn. (EC) Department dated 16.05.1994 and also in compliance of Memorandum of Understanding dated 25.03.2004 between Management and Employees representatives.

(ii). Whether the management is justified in not paying salaries on par with Government scales to 12 employees in question, in compliance of Government Scales to 12 employees in question, in compliance of G.O.Ms.No.153, Edn (EC) Dept. dated 16.05.1994 and also Memo No.E4/21545/2005 dated 29.10.2005 of Director of Technical Education, A.P., Hyderabad.

(iii). Whether the Management is justified in not appointing Mrs.Anuradha as a Regular employee on compassionate grounds since her husband died during the service as it was done in similar cases earlier.

(iv). If not, to what is the relief the workmen are entitled to ?

The Labour Court numbered the said reference as

I.D.No.123 of 2012.

07. It is revealed from the impugned Award that the

petitioner No.1 filed claim statement on 27.06.2013 and

the respondent No.2 filed counter denying the claim

statement filed by the petitioner. On behalf of the

petitioner No.1-union, WW1 was examined and Ex.W1 to

W32 documents were marked, and on behalf of respondent

No.2, MW1 was examined and Exs.M1 to M8 documents

were marked. Labour Court after taking into consideration

the pleadings of the respective parties, oral and

documentary evidence on record, and also after hearing

both sides, passed impugned Award on 06.04.2015 and the

reference is dismissed.

08. It is very much relevant to mention here that

the petitioners are claiming regularization of services of 11

employees pursuant to the MOU dated 25.03.2004 on par

with other employees, though they have not completed five

years of services and they are not entitled to claim the said

benefit of regularization of services. The MOU entered

between the petitioner's union and respondent No.2-

Management under the provisions of the Act and the same

is binding upon the parties and the petitioners are not

entitled to claim regularization of services as per

G.O.Ms.No.153 and MOU dated 25.03.2004. In such

circumstances, the petitioners are not entitled to deny the

MOU.

09. In State of Rajasthan (supra1), Vice

Chancellor, Lucknow University (supra2), Secretary to

Government, School Education Department, Chennai

(supra3), Yogesh Mahajan (supra4), the Hon'ble Apex

Court held that though the part-employees put on long

services, they are not entitled for regularization of services

as they were not working against sanctioned posts. In the

case on hand also petitioners are claiming regularization

basing upon their long service, though they are not

appointed in sanctioned posts and there are only daily

wage workers. The decisions and principles laid down in

the above Judgments are squarely applicable to the facts

and circumstances of the present.

10. It is very much relevant to place on record that

the scope of judicial review under Article 226 of the

Constitution of India is very limited to interfere with the

impugned Award passed by the Labour Court. In Union of

India and others v. Ilmo Devi and another 5 it was held

that:

"8.4.......The High Court cannot, in exercise of the power under Article 226 of the Constitution of India, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.

8.5 Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so. In the case of State of Maharashtra & Anr. Vs. R.S.Bhonde & Ors., (2005) 6 SCC 751, it is observed and held by this Court that the

Civil Appeals Nos.5689-5690 of 2021 decided on 07.10.2021.

status of permanency cannot be granted when there is no post. It is further observed that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.

11. This Court does not find any illegality or

irregularity in the impugned Award passed by Labour

Court to invoke extraordinary jurisdiction of this Court

under Article 226 of the Constitution of India.

12. However, it is brought to the notice of this

Court by the learned counsel for the petitioner that

petitioner No.2 is appointed in the year 2006 and by virtue

of interim order granted by this Court on 06.01.2016 in

W.P.M.P.No.351 of 2016, petitioner No.2 is continuing in

service on the same terms and conditions till date. Taking

into consideration the length of service rendered by the

petitioner No.2, respondent No.2 is directed to consider his