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Judgment
N.V. Balasubramanian, J.—The petitioner in both the writ petitions is Cholan Pokkuvarathu Kazhaga Uzhiyargal Sangam and the said
Sangam is espousing the cause of 191 workers of whom 132 belong to the category of drivers and the rest of them belong to the category of
conductors. In W.P. No. 16926 of 1999 the same Sangam is fighting the cause of the other 49 workmen of whom 24 belong to the category of
drivers and the rest of them belong to the category of conductors. The prayer in both the writ petitions is similar and for the disposal of both the
writ petitions, it would suffice to notice the facts averred in W.P. No. 15447 of 1999.
It is necessary to mention here when several writ miscellaneous petitions filed in both the writ petitions came up for consideration and with the
consent of the counsel for both the parties, the main writ petitions themselves were taken up for hearing.
The case of the petitioner union is that the second respondent is a Government of Tamil Nadu undertaking and the petitioner union is a service
trade union. The complaint of the petitioner union is that the second respondent instead of filling up the vacancies to the posts of drivers and
conductors on permanent basis have been engaging drivers and conductors on daily rated basis and a dispute arose as to the regularisation of the
persons employed under daily rated basis. Accordingly a settlement was arrived at in the year 1995 between all the Transport Corporations
owned by the Government of Tamil Nadu and the Unions for avoiding employing persons on casual daily rated basis. According to the petitioner
union, the workmen concerned have put in more than 240 days of service in a period of 12 months, if rest days and national and festival holidays
are taken into account. It is the definite case of the petitioner union that the workmen concerned were called for interview through the District
Employment Exchange and the interview took place in the months of July, 1997 to February, 1998. The petitioner has stated that the employees
whose names are given in the writ petitions were selected on permanent basis and they have been taken as permanent employees from September,
1998. The petitioner has stated that the persons employed prior to August, 1998 were absorbed in permanent cadre, but the second respondent,
for the reasons best known to it, has not confirmed the services of the conductors and drivers covered in the writ petitions. It is the case of the
petitioner union that the second respondent has been denying work and employment after they completed 200 days of work. The petitioner has
stated that there is an agreement to the effect that workmen who have completed 240 days of continuous work would be confirmed in service and
to avoid conferment of permanent status, the second respondent has committed unfair labour practice by denying work to the workmen concerned
so as not to enable them to complete 240 days of continuous service. It is the case of the petitioner that the employees have put in more than 240
days of service, if the rest days, national and festival holidays are taken into account and hence, all the persons who are covered in the writ
petitions should have been confirmed in service as they have completed more than 240 days as per law. It is also stated that cash security has also
been demanded and collected from the workers which also gives an indication that the workers were not employed on casual basis but selected
for permanent vacancies. It is the case of the petitioner union that the respondent should have confirmed the workmen concerned in service and the
action of the second respondent is in violation of the settlement arrived at between the parties. It is the case of the petitioner that all the employees
got employment through the Employment Exchange and their names might have been removed from the rolls and they lost seniority and some of
them crossed the age limit also. It is the case of the petitioner that the denial of work to the workmen concerned is arbitrary, unreasonable, unfair
and discriminatory and also violative of the provisions of Arts. 14, 16 and 21 of the Constitution of India. After referring to the representation, it is
stated that there is no positive response from the second respondent. It is also stated that Arivoli and one Panneer who were recruited along with
the persons covered in the writ petitions were confirmed and the action of the second respondent is not only mala fide, but also discriminatory. It is
stated that the second respondent has no jurisdiction whatsoever not to provide work to the workers concerned, and engaging outsiders in their
place and the action of the second respondent is done in violation of the provisions of Section 25-H of the Industrial Disputes Act, 1947. Hence,
the petitioner has approached this Court for the issue of a writ of mandamus directing the respondents to regularise the services of the workmen
concerned.
The second respondent has filed a counter affidavit wherein the statistical particulars as to the number of buses operated by the second
respondent as well as the number of drivers and conductors required by the second respondent are given. According to the second respondent the
second respondent has 2392 drivers and 2396 conductors on permanent rolls. It is stated that there is no vacancy in the second respondent
Corporation. The second respondent has also given particulars regarding drivers and conductors appointed in the past three years against
permanent vacancies that arose by death, retirement, resignation and dismissal. The second respondent has also stated that for regular vacancies
for the post of drivers and conductors, the names of candidates who were sponsored by the Employment Exchange were selected. It is stated that
employees were appointed on daily wage basis for one year and their services were taken into consideration for confirmation after they have
worked for 240 days. It is stated that the union has agreed in the wage settlement held in September, 1995 and it is open to the second respondent
to regularise the services of workmen after they have completed 240 days of actual working in a continuous period of one year. It is the case of the
second respondent that drivers and conductors were recruited through the Employment Exchange for permanent vacancies and there is no case
pending for confirmation of service after completion of 240 days of actual work in a continuous period of one year in respect of drivers and
conductors. It is the case of the second respondent that it is incorrect to allege that the employees covered in the writ petitions were interviewed
and selected for permanent posts. It is stated that during September, 1998, a lightning strike was resorted to by some trade unions regarding wage
revision and 96 drivers and 105 conductors who participated in the strike were arrested by the police and they were placed under suspension, and
since number of drivers and conductors were suspended and in order to overcome the requirement of drivers and conductors for annual festivals,
like Velanganni Festival, the second respondent was forced to engage drivers and conductors on casual basis during the said period. It is the case
of the second respondent that after revocation of suspension, the second respondent has stopped engaging drivers and conductors on casual basis.
The second respondent has denied that the persons covered in the writ petitions were in continuous employment and it was also denied that they
completed 240 days of work. The second respondent has stated that the second respondent has to follow the settlement and there is no deviation
from following the settlement. It is the case of the second respondent that the persons whose services were confirmed had completed 240 days of
actual work within the continuous period of one year. According to the second respondent, the persons covered in the writ petitions have been
engaged on casual basis and they have not been recruited for permanent vacancies.
A reply affidavit has also been filed by the petitioner wherein the petitioner union has reiterated the stand taken in the affidavit filed in support of
the writ petition.
Mr. N.G.R. Prasad, learned counsel appearing for the petitioner submitted that the second respondent has acted arbitrarily in not making
permanent the workers covered in the writ petitions. According to the learned counsel, the second respondent has acted in a discriminatory
manner and the employees selected up to August, 1998 were absorbed in permanent posts, but the drivers and conductors who were selected
after September, 1998 were not absorbed. Learned counsel also referred to the letters issued to the employees covered in the writ petitions and
submitted that the call letters are in no way different from the call letters issued to the employees absorbed in permanent posts before August,
1998. Learned counsel further submitted that the second respondent has acted in a discriminatory manner and few employees have been absorbed
on permanent basis whereas the persons covered in the writ petitions have not been confirmed. Learned counsel further submitted that the second
respondent has acted in a mala fide manner and the employees covered in the writ petitions were not permitted to continue in service after a period
of 200 days so that they may not fulfil the requirement of 240 days of work. Learned counsel further submitted that the action of the second
respondent is arbitrary and vindictive and as the second respondent has failed to see that the employees covered in the writ petitions were
appointed for permanent posts and they were required to deposit security deposit and they possess the necessary educational qualifications of
permanent employees and they underwent tests which are done only in the case of selection of permanent employees. Learned counsel further
submitted that the second respondent is having the records and if the records are produced, it would show that the employees covered in the writ
petitions have put in more than 240 days of work. Learned counsel therefore submitted that there should be a direction to the second respondent
to the effect that the employees covered in the writ petitions should be made permanent. Learned counsel submitted that the second respondent
conducted interviews and selected persons for the posts of conductors and drivers and irrespective of the question whether the employees covered
in the writ petitions were casual employees or permanent employees, they are entitled to get preference in the matter of appointment. Learned
counsel referred to the provisions of Section 25H of the Industrial Disputes Act and submitted that irrespective of the fact that the employees
covered in the writ petitions are working on casual basis or permanent basis, the process of selection undertaken by the second respondent
overlooking the claim of the employees covered in the writ petitions is illegal. Learned counsel strongly placed reliance on the decision of the
Supreme Court in the case of Central Bank of India Vs. S. Satyam and others, . He also referred to the provisions of Section 2(oo) of the
Industrial Disputes Act and submitted that word, ''retrenchment'' has to be given a wide meaning and the case of the employees covered in the writ
petitions are not covered in the exception clause found in Clause (bb) to Section 2(oo) of the Industrial Disputes Act. According to the learned
counsel, Section 2(oo)(bb) is not applicable to the facts of the case as the work subsists even now and since the work subsists, the provisions of
Section 2(oo)(bb) do not apply. Learned counsel also submitted that the second respondent has committed unfair labour practice in terminating the
services of the employees covered in the writ petitions. Learned counsel relied upon the following decisions in support of his case:
(i) Central Bank of India v. S. Satyam (supra), (ii) K. Rajendran v. Project & Equipment Corporation of India 1995 III LLJ (Suppl) 240 (iii) Chief
Conservator of Forests and another, Vs. Jagannath Maruti Kondhare, etc. etc., .
Learned counsel also submitted that in almost similar, factual situation in the case of another transport corporation, a Division Bench of this Court in
W. A. Nos. 1294 To 1299 of 1997, etc., by judgment dated December 8, 1997, directed the corporation to undertake an exercise whether the
workers had completed 240 days of work and the provisions of Section 25-F have been complied with or not. Learned counsel also relied upon
the said unreported decision in support of his contention that the employer should comply with the provisions of Section 25H of the Industrial
Disputes Act irrespective of the fact that workers were engaged on permanent basis or temporary basis. Learned counsel also referred to the
decision of this Court in W.A. No. 1061 of 1990 dated January 3, 1991 wherein this Court directed the management to consider the case of
temporary employees in filling up of the vacancies. Learned counsel also referred to the decision of the Supreme Court in the case of Keshav
Narayan Gupta and Others Vs. Jila Parishad, Shivpuri (MP) and Another, wherein the Supreme Court has held that until regular appointments
were made, the employees were directed to continue on ad hoc basis. Learned counsel therefore submitted that till the matter is decided, there
should be a direction for continuation of employment of the employees covered in the writ petitions at least on casual basis.
Mr. Sanjay Mohan, learned counsel appearing for the second respondent, on the other hand, submitted that it is incorrect to state that
employees covered in the writ petitions were employed on permanent basis. He referred to the affidavit filed in support of the writ petition and
submitted that even according to the writ petitioner, they were appointed only on casual basis and as per the settlement arrived at u/s 12(3) of the
Industrial Disputes Act, the workers who have completed 240 days of continuous service would be considered for permanency. According to him,
the employees covered in the writ petitions were working on daily wages depending upon the requirement of the Corporation. Learned counsel
also submitted that there was a large scale suspension of work by the drivers and conductors which necessitated the Corporation to engage the
employees covered in the writ petitions on temporary basis and under the terms of the settlement, the persons who were recruited against
permanent quota, on their completion of 240 days of actual work, are eligible to be considered for permanency. Learned counsel submitted that
this Court, in exercising writ jurisdiction, will not go into the question of fact and the writ petitions are not maintainable. In so far as the employees,
Arivoli and Panneer are concerned, he submitted that they were taken against permanent vacancies and after they had put in 240 days of work,
they were absorbed as permanent employees. In so far as Section 25H of the Industrial Disputes Act is concerned, there was no retrenchment
within the meaning of Section 2(oo) of the said Act and hence, the petitioner cannot claim that the employees covered in the writ petitions are
entitled to the benefit of Section 25H of the Industrial Disputes Act.
I have carefully considered the submissions of Mr. N.G.R. Prasad, learned counsel appearing for the petitioner and Mr. Sanjay Mohan, learned
counsel appearing for the second respondent. I am of the view that the issues raised in the writ petitions are all questions of fact. The questions
whether the employees covered in the writ petitions were employed against permanent vacancies or they were employed against temporary
vacancies and how many days they have actually worked are all questions of fact which need investigation into the materials that may be produced
by either of the parties. There are two options, one is to direct the employees concerned to claim benefit under the provisions of the Tamil Nadu
Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, and direct the authority constituted under the Act to consider
the question, and the second option is to refer the matter to the Industrial Tribunal. I am of the view that the Industrial Tribunal would be the better
forum to decide the question as it could be open to the petitioner as well as the respondents to let in evidence before the Industrial Tribunal on the
questions whether the employees covered in the writ petitions were employed by the second respondent on permanent basis and whether they
have put in 240 days of service and whether they have completed 240 days of actual work within the continuous period of one year for conferment
of permanency as provided in the memorandum of settlement entered into u/s 12(3) of the Industrial Disputes Act between the State Transport
Corporations and the Federation of Central Trade Unions and whether holidays, festival holidays and rest days should also be taken into account
in determining the question of 240 days. I am of the view, taking into consideration that the interest of large number of employees covered in both
the writ petitions is involved, I direct the first respondent herein, the Government of Tamil Nadu, to refer the dispute u/s 10 of the Industrial
Disputes Act to the Industrial Tribunal within a period of one month from the date of receipt of the order and the Industrial Tribunal, on receipt of
the reference from the Government of Tamil Nadu, is directed to consider the questions that arise in the reference within a period of three months
from the date of receipt of the reference. The writ petitioner and the second respondent are directed to extend their full co-operation before the
Industrial Tribunal so that the Industrial Tribunal may go into the questions and determine whether the employees covered in the writ petitions are
casual employees or temporary employees and whether they were taken against permanent vacancies and whether the termination of their services
is legal or illegal and whether there was retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. The Industrial Tribunal is
directed to consider all the aspects of the matter arising in the writ petitions including the question whether the employees covered in the writ
petitions have put in 240 days of work and whether they are eligible to be regularised. The Industrial Tribunal is also directed to consider the
question, in considering the issue whether the employees covered in the writ petitions have completed 240 days of work, whether holidays, festival
holidays and rest days should also be taken into account and whether those periods can also be regarded as actual days of work within the
meaning of actual work contemplated in the memorandum of settlement.
In so far as the unreported decision rendered by a Division Bench of this Court in a batch of writ appeals, namely, W.A. Nos. 1294 to 1299 of
1997, etc., relied upon by Mr. N.G.R. Prasad, learned counsel for the petitioner is concerned, I am of the view that some adjudicating authority
should go into the question on the factual aspects whether the employees covered in the writ petitions have put in 240 days of work or not.
In the unreported decision rendered in W.A. No. 2055 of 1999 by another Division Bench of this Court consisting of My Lord the Hon''ble
Chief Justice and myself, by judgment dated December 1, 1999, we have held that this Court cannot go into the question of fact as to whether the
employees have completed 240 days in a calender year or not, particularly when the same fact has been denied by the respondent. The Bench has
also taken the view that this Court cannot issue any direction as to regularisation as it depends upon the availability of clear vacancies, substantive
posts and longevity of service as per the existing rules.
In so far as the decision of the Supreme Court in the case of Chief Conservator of Forests v. Jagannath Maruti Kondhare (supra) is
concerned, the applicability of the decision would depend upon the question whether the employees covered in the writ petitions have been
continuously working for long years and the termination of their services would deprive them of the status of permanent employees. Since I have
directed the Industrial Tribunal to go into the said question, the above decision of the Supreme Court is not applicable.
As far as tbe decision of this Court in the case of K. Rajendran v. Project & Equipment Corporation of India (supra) is concerned the
applicability of the decision would depend upon the examination of question of fact whether the work for which the employees covered in the writ
petitions were employed subsist and whether the termination would amount to retrenchment within the meaning of Section 2(oo) of the Industrial
Disputes Act. Hence, the decision in K. Rajendran case (supra) is not applicable.
I am unable to accept the submission of Mr. N.G.R. Prasad, learned counsel for the petitioner that during the pendency of the adjudication
before the Industrial Tribunal, the employees concerned should be allowed to work at least on casual basis. Learned counsel for the petitioner as
already noticed, relied upon two decisions, (1) the decision of the Supreme Court in Keshav Narayan Gupta v. Jila Parishad (supra), and (2) the
unreported decision of this Court in W.A. No. 1061 of 1990, dated January 3, 1991. I am of the view, on the facts of the case, if this Court
directs that the employees covered in the writ petitions should be taken in employment on casual basis during the pendency of the adjudication
proceedings before the Industrial Tribunal, the employees will gain an advantage over others and claim that on the completion of 240 days of actual
work, they should be absorbed as permanent employees under the terms of the settlement. I am therefore of the view that any order of this Court
directing the employees covered in the writ petitions to be employed on ad hoc basis during the pendency of the adjudication proceedings before
the Industrial Tribunal would operate in a disadvantageous manner in respect of others who are not before this Court and the employees covered
in the writ petitions cannot be allowed to gain advantage by an order of this Court.
The next submission of Mr. N.G.R. Prasad, learned counsel for the petitioner is that u/s 25H of the Industrial Disputes Act, the employees
covered in the writ petitions should be given preference when permanent vacancies arise and even assuming that they were casual employees is
immaterial. Learned counsel, in this connection, referred to the decision of the Supreme Court in the case of Central Bank of India v. S. Satyam
(supra), and also the unreported decision of this Court in W.A. Nos. 1294 to 1299 of 1997, etc. dated December 8, 1997. The question whether
the employees covered in the writ petitions were retrenched within the meaning of Section 2(oo) of the Industrial Disputes Act has to be examined
by the Industrial Tribunal and unless there is a definite finding on that question, it is not possible to give a direction to the effect that the employees
covered in the writ petitions are entitled to the benefits of Section 25H of the Industrial Disputes Act. If the employees covered in the writ petitions
are entitled to the benefits of Section 25H of the Industrial Disputes Act, it is always open to them to seek redressal under that Section. Moreover,
the question whether the refusal to employ the employees covered in the writ petitions is a retrenchment or not has also to be decided.
Mr. N.G.R. Prasad, learned counsel for the petitioner submitted that during the pendency of the adjudication proceedings before the Industrial
Tribunal, if the second respondent is allowed to fill up the vacancies that may arise, the employees covered in the writ petitions would suffer greatly
as their case may be rejected on the ground that there is no vacancy. I find that the submission of the learned counsel is reasonable, though I am
not inclined to issue an order of injunction restraining the second respondent from employing any person during the pendency of the adjudication
proceedings, as the issuance of such an order would result in a position that the second respondent may not be in a position to employ any
additional hands it requires to run the public utility service, and at the same time, the interest of the employees covered in the writ petitions should
be suitably protected. I have already directed that the Industrial Tribunal should adjudicate the matter within three months from the date of receipt
of reference referred by the Government of Tamil Nadu. I therefore direct the second respondent to employ drivers and conductors whenever
vacancies arise and the second respondent is also directed that at the time of such employment, persons to be appointed should be made known
that their order of appointment would be subject to the result of the adjudication proceedings pending before the Industrial Tribunal. I also clarify
that the above direction will operate only for a period of four months from the date the adjudication proceedings begin and I restrict the period of
operation of the direction with a view to induce both the parties, the workers and the management, to extend their assistance and cooperation
before the Industrial Tribunal to conclude the hearing so that the Tribunal can pass an award within the period stipulated.
In the result, both the writ petitions are disposed of with the above directions directing the Government of Tamil Nadu to make a reference
within a period of one month from the date of receipt of the order and the Industrial Tribunal to dispose of the reference within a period of three
months from the date of reference. The State Government is also directed to constitute a Special Tribunal presided over by an Officer who has
been a Judge of this High Court and refer the matter to the learned Judge as interest of large number of workmen is involved. However, in the
circumstances, there will be no order as to costs.