High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 05-07-2007CORAMTHE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWRIT APPEAL Nos.1720,1721 AND 1722 OF 1998W.A.No.1720 OF 1998 :1.Tamilnadu Electricity Board, rep.by its Chairman, Electricity Avenue, Anna Salai, Chennai -2.2.Ennore Thermal Power Station, rep.by its General Superintendent, Tamilnadu Electricity Board, Ennore, Chennai – 57....Appellants-vs-1.Tamil Manila Thozhilalar Sangam, rep.by its General Secretary, K.Nithyanandam.2.Githa Enterprises, 94, G.A.Road, Chennai-21, (Contractors).3.Govt.of Tamilnadu, rep.by its Commissioner & Secretary to Govt., Dept. of Labour, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

4.Minvaria Opanda Thozhilalar Sangam, rep.by its President, 142, Thambuchetty Street, Chennai-1....Respondents(R4 impleaded as per order dated 26.10.05made in WA 5331/04)W.A.No.1721 OF 1998 :The Chief Engineer,Operation,Mettur Thermal Power Station,Tamilnadu Electricity Board,Mettur Dam,Salem District....Appellant-vs-1.M.Krishnan2.E.Muthu3.L.Raman4.K.Annamalai5.C.Rajendran6.Siddan7.Paulraj8.C.Srirangan9.M.Moorthy10.E.Moorthy11.A.Kuppusamy12.P.Pethan @ Raju13.V.Ganesan14.Kannan15.Arumugam16.K.Krishnamoorthy17.Nallathambi18.P.Krishnamoorthy19.A.Arivzhan20.K.Sengotaiyan21.C.Palanisamy22.V.Rathakrishnan23.P.Perumal24.Rajamanickam25.M.Palanisamay26.B.Subhan27.M.Krishnan28.Selvaraj29.C.Mani30.Ramalingam https://hcservices.ecourts.gov.in/hcservices/

31.T.R.Kathiravan32.Ponnusamy33.Palaiyan34.Jayakumar35.Natarajan36.Rajendran37.Mahtappan38.Perumal39.Moorthy40.Murugan41.Shanmugam42.Raju43.Thomas44.Sathyamoorthy45.Veerappan46.Manickam47.The Government of Tamilnadu, rep.by its Secretary to Government, Labour & Employment Department, Chennai-9.48.A.Ponnusamy49.Ayyadurai50.Rajagopal....RespondentsW.A.No.1722 OF 1998 :The Superintending Engineer,Workshop Circle,Tamilnadu Electricity Board,Mettur Dam,Salem District....Appellant-vs-1.Central Organisation of Tamilnadu Electricity Board, Employees Mettur Branch, Regn.No.158, C.P.T. rep.by the Secretary Thiru M.Arthanari, Rajaganapathy Nagar, Mettur, Salem District.2.The Government of Tamilnadu, rep.by its Secretary, Labour & Employment Dept., Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

3.Natarajan4.Ammasi...RespondentsAppeals against the common order, dated 24.09.1998,made in W.P.Nos.4769 of 1989,3796 of 1990 and 3566 of 1990 onthe file of this Court.For appellants : Mr.M.VaidyanathanFor respondents 3 in W.A.No.1720 of 1998,respondent 47 in W.A.No.1721 of 1998 &respondent 2 in W.A.No.1722 of 1998 : Mr.C.Ramesh,Addl.Govt.Pleader.For respondent 4 in W.A.No.1720 of 1998 :Mr.V.Prakash, Senior Counsel for Mr.P.ChandrasekaranCOMMON JUDGMENTS.PALANIVELU,J.Since all these three Writ Appeals relate to anidentical issue, they are being disposed of by a commonjudgment.2. Writ Petitions, against the orders of which theseWrit appeals are filed, were : (i) for a declaration,declaring the workmen listed in Annexure I and II to the writpetition to be the workmen of respondents 1 and 2 therein,namely, Tamil Nadu Electricity Board, who is the appellantherein, and consequently to direct the Board to regularise andabsorb the workmen in service and pay them all past benefitsas was paid to the permanent workmen, who were doing the samework before, and (ii) for a mandamus, directing the Governmentof Tamil Nadu, to exercise its power under Section 10 of theContract Labour (Regulation and Abolition) Act,1970, and issuea Notification, abolishing the employment of contract labourin Coal Handling Plant Division and Central Stores in theworkshop of Tamil Nadu Electricity Board at Mettur Dam andconsequently direct the Board, to absorb theworkmen/petitioners.3. The case of the writ petitioners/workmen was thatthey are engaged by a contractor to work in the Tamil NaduElectricity Board and they have been in continuous servicefrom 1987 without any break; the contractor is not having any https://hcservices.ecourts.gov.in/hcservices/ valid licence required under the Contract Labour Act; thoughthey are engaged by a contractor, their work is completelysupervised, coordinated and controlled by the officials of theBoard; setting up of an intermediary as a contractor is merelya device to avoid statutory liabilities under Labour WelfareLegislation; as such, the said practice of the Board amountsto unfair labour practice; therefore, they are the workmen ofthe Board and, hence, their services are to be regularised inEnnore Thermal Power Station and Mettur Thermal PowerStation, as the case may be.4. Per contra, the stand of the Tamil NaduElectricity Board was that the writ petitioners/workmen areengaged by a contractor only for loading and unloading ofcoal; the nature of work of feeding of coal on contract is notpermanent; the contractor is having a valid licence;therefore, the petitioners are not the workmen of the Boardand, instead, they are the workmen of the contractor; theBoard has no connection with the contract labourers foremployment; as per the directions of the Government, thepossible vacancies should be filled up only through EmploymentExchange; the plea of the petitioners to absorb them in theBoard and regularise their services without followingEmployment Exchange criteria is not sustainable under law and,hence, the Writ Petitions are liable be dismissed.5. The learned single Judge, on going through thematerials available on record and considering the rivalcontentions made by the learned counsel for the parties andalso discussing the issue in detail as to whether the ContractLabour System has to be abolished in the areas where thepetitioners are working, in terms of Section 10 of theContract Labour (Abolition and Regulation) Act,1970, held thatbefore issuing any notification under sub-section (1) ofSection 10, the appropriate Government has to take note of theconditions of work and benefits provided for the contractlabour in that establishment and also other relevant factorsas enumerated in clauses (a) to (d) to sub-section (2) ofSection 10 of the Act. The learned single Judge also followedthe settled legal propositions, particularly the decision ofthe Hon'ble Supreme Court in Air India Statutory Corporationv. United Labour Union, AIR 1997 Supreme Court 645, anddirected the Government of Tamil Nadu to issue a Notification,abolishing the employment of contract labour system in CentralStores and Coal Handling Plant Division, in the workshop ofTamil Nadu Electricity Board at Mettur Dam, and to regulariseand absorb the writ petitioners/workmen within a period ofeight weeks thereafter. https://hcservices.ecourts.gov.in/hcservices/

6. It is not debated that the writ petitioners arein continuous service for years together and their servicesare very much essential and integral to the Board. 7. It is argued on behalf of the Board that theservices of the said workmen are required for a limited periodin a day and, therefore, they could not be made permanent.8. We are unable to accept the said argument for thereason that there is no material to show that the services ofthe workmen would not consume the entire day. It is to benoted that the processes in the units concerned are perennialin nature. The nature of work is concedingly a continuous oneand it is found that the workmen are working in shifts or byrotation. It is also seen from the averments that even onnational holidays and festival days, the shift method is beingobserved by the management. It is also to be noted that thoughthe contractors are changing once in six months, the workmenare employed continuously without any interruption.9. It is vehemently argued on behalf of the writpetitioners that the practice of engaging the workmen throughcontractors is an unfair labour practice, which is barredunder the provisions of the Contract Labour (Regulation andAbolition) Act as well as Article 23 (1) of the Constitutionof India, and that the services rendered by the workmen arebeing supervised and controlled by the officials of the Board.10. Earlier, when these appeals came up for hearingon 30.03.2007, learned counsel for the appellant Board wasdirected to file an affidavit and state as to how manyworkmen, who are entitled to derive the advantage of thejudgment in question, have been absorbed and how many of them,who could not be absorbed because of ineligibility or want ofvacancy or death or other reason. The Board was also directedto give the approximate age of such workmen, who could not beabsorbed on one or other grounds. Similarly, learned counselappearing for the respondent union was directed to address theCourt as to how the Board could absorb any workmen beyond itssanctioned strength and vacancy.11. Pursuant to the said direction, the appellantBoard filed an additional affidavit, setting out thesubsequent developments after the filing of Writ Petitionsbefore this Court. It is stated therein that at the time offiling of Writ Petitions, the Board had taken up theimplementation of Justice Khalid Commission report, dated11.02.1991, for absorption of contract labourers and thousands https://hcservices.ecourts.gov.in/hcservices/ of them were absorbed as Helpers in Tamil Nadu ElectricityBoard in a phased manner from 1991. It is also stated thereinthat in the course of absorption of contract labourers as perJustice Khalid Commission and as per the orders of the Board,in W.P.No.4769 of 1989, out of 46 writ petitioners, none wasabsorbed ; in W.P.No.3566 of 1990, out of 13 writ petitioners,9 were absorbed and in respect of W.P.No.3796 of 1990, out of46 writ petitioners, 32 were absorbed. It is further statedthat the 63 names mentioned in Annexure-I were not foundeither in the list filed before Justice Khalid Commission orin the list prepared on 05.01.1998 and, hence, they could notbe absorbed, due to ineligibility. However, the affidavit issilent on the aspect as to what is the nature of ineligibilityon the part of the labourers. It is also mentioned in theaffidavit that as for 36 contract labourers of Ennore ThermalPower Station, since they did not satisfy the conditionsprescribed by the Board for absorption, they were notconsidered for absorption. Again, the affidavit is bereft ofdetails with regard to the alleged conditions prescribed.Even though the affidavit is appended with three annexureswith reference to three Writ Petitions, since materialparticulars have not been completely furnished as per thedirection of this Court, this Court is unable to come to adefinite conclusion. 12. In the above said circumstances, the additionalaffidavit cannot be pressed into service, as it does not serveany purpose and also merit consideration. Further, therespondent union has also failed to furnish any particularswith regard to the direction of this Court as to how the Boardcould absorb any workmen beyond its sanctioned strength andvacancy. Since the learned single Judge has considered thematter in-depth and passed a reasoned order, we are notinclined to interfere with the same.13. Therefore, these Writ Appeals are dismissed. Assuch, the Government of Tamil Nadu and the Tamil NaduElectricity Board are directed to implement the order of thelearned single Judge, by issuing necessary notifications,subject to the eligibility of the workmen concerned withreference to their age of retirement for the service, within a https://hcservices.ecourts.gov.in/hcservices/ period of eight weeks from today. No costs. Consequently, theconnected C.M.P.Nos.19220,19221 and 19224 of 1998 are alsodismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1.The Commissioner & Secretary to Government,Govt.of Tamilnadu,Department of Labour,Chennai-9.2.The Chairman,Tamilnadu Electricity Board, Electricity Avenue, Anna Salai,Chennai -2.3. The General Superintendent,Ennore Thermal Power Station, Tamilnadu Electricity Board, Ennore, Chennai – 57.4.The Chief Engineer,Operation,Mettur Thermal Power Station,Tamilnadu Electricity Board,Mettur Dam,Salem District.5.The Superintending Engineer,Workshop Circle,Tamilnadu Electricity Board,Mettur Dam,Salem District.+1cc to Govt. Pleader Sr 40648+1cc to Mr.M.Vaidyanathan, Advocate Sr 40570+1cc to Mr.P.Chandrasekaran, Advocate Sr 40220BK(CO)km/17.7. W.A.Nos.1720 TO 1722 OF 1998