C.Wilbert v. The Manager of Indian Institute of Technology & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.7.2008CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWrit Appeal No.169 of 2007and M.P.No.1 of 2008C.Wilbert ... Appellant/2nd RespondentVs.1.The Manager of Indian Institute of Technology, represented by its Director, Chennai-600036.2.The Assistant Registrar (IC & SR) Indian Institute of Technology, Chennai-600036.3.The Presiding Officer, Principal Labour Court, Chennai-600104.... Respondents / Petitioners 1 and 2 and First Respondent* * *Writ Appeal filed under Clause 15 of the Letters Patent, asagainst the order of the learned single Judge dated 1.12.2006 made inW.P.No.26926 of 2004 filed under Art.226 of the Constitution of Indiafor issuance of a Writ of certiorarified calling for the recordsrelating to be award of the First Respondent in I.D.93 of 1997 dated28/4/2004 and quash the same.* * *For appellant: Mr.C.UmashankarFor R.1: Mr.Vijay Narayanan, Senior Counsel for Mr.R.Parthiban for R1 R.2: No appearance* * * https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTELIPE DHARMA RAO, J.The appellant was initially appointed as NMR for six monthsw.e.f. 15.11.1988 at JEE Office of the IIT, Madras and thereafter asan NMR helper in the Central Stores for another period of 15 days.He applied for the post of a Project Attendant in Centre forIndustrial Consultancy and Sponsored Research, the second respondentherein, and was appointed as such in a project called 'NiharakaLehan' for a period of six months, by order dated 22.5.1992, on aconsolidated wages of Rs.1,000/= per month and on completion of thesaid term, he was relieved by the order dated 24/25.11.1992 on andfrom the afternoon of 24.11.1992. Thereafter, he was again engagedfor another period of six months from 8.12.1992 to 7.6.1993 foranother project on a consolidated salary of Rs.1,300/= per month andhe was relieved on 7.6.1993. Thereupon, the petitioner was againengaged as a Project Attendant in another project called 'Testing ofRamji Combustion' in the Aero Space Engineering Section, for aperiod of six months from 11.4.1994 to 10.10.1994 on a consolidatedsalary of Rs.1,200/= per month. He was again appointed in the sameproject for a period upto 31.12.1994 from 25.10.1994 and he wasrelieved from duty on 31.12.1994, but his services were extended upto14.3.1995 in the same project and thereafter, he was relieved fromthe said project on and from 14.3.1995 by order dated 15.3.1995.Thereafter, the appellant was again engaged in another project for aperiod of one month and ten days from 20.3.1995 to 30.4.1995 as aProject Attendant on a consolidated salary of Rs.1,250/= per month ina project called 'Studies on Advanced Propulsion System for AeroSpace Vehicles' and he was relieved of his duties from 30.4.1995.All these facts were admitted by the respondents in their counterfiled before the Labour Court. But, according to the appellant, evenafter 30.4.1995, he was again appointed by the respondent andultimately relieved on 14.3.1996. This statement of the appellantwas not denied by the respondents. Therefore, it is seen that from22.5.1992, till 14.3.1996, the appellant was serving the respondentsin one project or other.2. Thereafter, the appellant approached the Labour Officer-III,Madras for his 'reinstatement' in service, but since the respondentshave refused to comply with his request, a failure report came to bepassed by the Labour Officer on 3.1.1997, whereupon the appellantraised an Industrial Dispute.3. Before the Labour Court, the appellant has contended that heis the employee of the respondents, since he worked for more thanthree years, though there were artificial breaks during those periodsand that he served for more than 240 days and thus he is entitled forreinstatement. This contention of the appellant was refuted by thefirst respondent, contending that the appellant was only a temporary https://hcservices.ecourts.gov.in/hcservices/ employee of the projects undertaken by the second respondent, whichare sponsored by the outside agencies and therefore, the same doesnot confer on him any right. The Labour Court has accepted the claimof the appellant/workman and has ordered that the non-employment ofthe appellant is not justified and that the workman is entitled tothe relief of reinstatement with backwages and other attendantbenefits. This Award of the Labour Court was challenged by therespondents 1 and 2 herein by filing W.P.No.26926 of 2004 and alearned single Judge of this Court, by the order dated 1.12.2006, hasset aside the Award of the Labour Court. Aggrieved by the same, theworkman has come forward to prefer this appeal.4. From the materials placed on record it is seen that theappellant was engaged by the respondents for one project or other asProject Attendant for the period from 22.5.1992 to 14.3.1996, withsome breaks. A strange argument has been advanced on the part of therespondents, as if both the respondents 1 and 2 are separate entitiesand that the identity card was issued only by the second respondent,and not by the first respondent. We are not in a position to acceptthis argument advanced on the part of the respondents since on athorough perusal of the entire materials placed on record, we areable to see that the second respondent is nothing but an offshoot ofthe first respondent and all the staff members are being nominated bythe first respondent, from out of its own organisation. The verynomenclature of the second respondent that 'the Assistant Engineer(IC & SR), Indian Institute of Technology, Chennai-36', would suggestthat it is only an offshoot of the IIT. Further, W.P.No.26926 of2004 was filed by both the respondents 1 and 2 herein, joining handswith each other and the affidavit was sworn-in by the Registrar ofthe first respondent on behalf of both the writ petitioners.Therefore, we have no hesitation to hold that this argument has beeninvented only to claim immunity from the actions of the secondrespondent. When such is the position, the other argument advancedon the part of the respondent that the workman was not employed orengaged by the IIT has no legs to stand. 5. The other argument advanced on the part of the respondents isthat separate appointment orders were issued to the workman,specifying the period of his appointment/engagement and therefore,the question of artificial breaks wilfully does not arise. Thoughseparate appointment orders were issued for different projects, theappointing authority is one and the same i.e. the second respondentand that too the breaks are very short. Therefore, a legalpresumption would arise that there is always a need for suchlabourers for the respondents so as to be engaged for such projectsand projects are being undertaken regularly, without any break,though breaks are shown in the services of such labourers, so as tobrand and bring them within the strict sense of 'casual labour', so https://hcservices.ecourts.gov.in/hcservices/ as to deny benefits to them. The nature of the work is also notseasonal, since always there are projects for the respondents toundertake and thus there was always a need for such labourers.6. It is to be pointed out that in spite of a specific directionissued by this Court on 8.4.2008, the respondents have not producedthe details of employment of the petitioner and details regarding theSchemes relating to regularisation of the services of such casuallabourers. It is not the case of the respondents that the appellantwas not engaged for not having any other projects. When theappellant has specifically pleaded that a similarly situated casuallabourer by name Vasanthakumari was regularised, pursuant to theconciliation proceedings, there was no answer from the respondents,explaining the circumstances, as to how the appellant's case was notconsidered. 7. It is also seen from the proceedings of the second respondentdated 19.2.1988, which has also been marked as Ex.W.14 before theLabour Court that a similarly situated person by nameMr.S.Yoganathan, a Junior Project Assistant in the second respondentwas brought over to the regular establishment of the Institute witheffect from 1.4.1984 and he was designated as Lower Division Clerk inthe unrevised pay scale of Rs.260-6-290-EB-6-326-8-366-EB-8-390-10-400. Likewise, one Mr.G.Mani, Project Attendant of the secondrespondent was also taken into regular establishment of the Institutewith effect from April 1984, by the proceedings of the IndianInstitute of Technology, in O.O.No.272, dated 27.10.1988 and he wasdesignated as 'Helper'. This proceeding of the Indian Institute ofTechnology, Madras have been marked as Ex.W.9 before the LabourCourt. This fact has also not been disputed by the respondents. Itis to be mentioned that as against such a clinching evidenceproduced by the appellant, the respondents have not produced anymaterial, except relying on various appointment orders and relievingorders, which would rather give support to the case of the workman.8. When such is the clinching and undisputed material availableon record, it is heartening, rather pathetic, to note from the letterdated 14.4.2008 addressed by the Registrar of the IIT Madras to theircounsel, which was produced before this Court, that a patently wrongstatement has been made by the Registrar of the IIT, Madras to theeffect that:"No project staff has so far been absorbed/employed eitherin the IC&SR or in the Institute.... "9. The only contention offered on the part of the respondents isthat the said Vasanthakumari stands on a different footing, withoutexplaining as to how she stands on a different proceedings.Regarding the taking into the regular establishment of the othertwo employees viz. Mr.S.Yoganathan and Mr.G.Mani, there is not even a https://hcservices.ecourts.gov.in/hcservices/ whisper by the respondents. When the appellant has pressed intoservice a copy of the letter dated 6.12.1995, addressed by the JointSecretary (Administration), Council of Scientific and IndustrialResearch, New Delhi to the Heads of All National Labs, Institutes,by marking the same as Ex.W.8 before the Labour Court, whereby thecopy of the revised scheme of 'Casual Workers Absorption Scheme ofCSIR, 1995' providing for absorption of the casual workers wasforwarded, the respondents have stated that the same has noapplication to the IITs, since IIT and CS&IR are different entities.Even accepting the same, if we see at the copy of the order dated6.2.1995 passed by the Conciliation Officer in a proceeding underSection 12(3) of the Industrial Disputes Act, the said Vasanthakumariraised the industrial dispute against the respondents IIT, Madras,wherein they have agreed to absorb her into the services, but whenthe question of absorbing the appellant arose, they have denied thesame benefit to the appellant, resulting in failure of theconciliation proceedings, followed by initiation of I.D.No.93 of 1997before the Labour Court by the appellant/workman. In case of othertwo similarly situated persons viz. Mr.S.Yoganathan and Mr.G.Mani,absorption took place without any problem for them.10. The absorption of the said Vasanthakumari cannot also bebranded as illegal, so as to say that there cannot be any equality inperpetrating illegality, since the IIT, Madras and the saidVasanthakumari have agreed for certain conditions before theConciliation Officer, pursuant to initiation of the industrialdispute by the said Vasanthakumari. 11. On a thorough perusal of the entire materials placed onrecord, we are able to see that though the appellant was offeredemployment in one 'project' or other, the same was not the position,when he moved the legal forum, for regularisation of his services andit is also not the case of the respondents that thereafter they havenot recruited any persons even as casual labour. It is also to bepointed out that the conduct and character of the appellant was neverunder question. From the materials placed on record, we are able tosee that the respondents are undertaking one project or other andthere is always the need of staff for that purpose, lest, theappellant would not have been appointed in many projects. Probably,because of this reason, the respondents have readily accepted toabsorb the said Vasanthakumari, a similarly situated casual labour,when she raised the industrial dispute since there was already aprecedent in absorbing Mr.S.Yoganathan and Mr.G.Mani and it seems,only to curtail/restrain others from raising similar demands, such analtered stand has been taken by the respondents, much prejudicial tothe workmen like the appelant.12. The learned senior counsel for the respondents would rely onthe following judgments of the Honourable Apex Court: https://hcservices.ecourts.gov.in/hcservices/ "1. STATE OF RAJASTHAN vs. SARJEET SINGH AND ANOTHER [(2006)8 SCC 508], 2.LAL MOHAMMAD AND OTHERS vs. INDIAN RAILWAY CONSTRUCTIONCO. LTD. AND OTHERS [(2007) 2 SCC 513],3.GANGADHAR PILLAI vs. SIEMENS LTD. [(2007) 1 SCC 533] and4.HARYANA URBAN DEVELOPMENT AUTHORITY vs. OM PAL [(2007) 5SCC 742]."By citing the above judgments the learned senior counsel wouldcontend that in the above judgments, the Honourable Apex Court hasspecifically hold that 'contract labours, who are appointed for aspecific project, have no right to seek for absorption'. There is nodispute with regard to the said proposition arrived at by theHonourable Supreme Court. But, it is the settled position of lawthat the factum of continuation or non-continuation of the projectsassumes importance, while considering such claims of the workmen.Admittedly, in the case on hand, as has already been discussed supra,the appellant was engaged by the respondents in one project or other,though with some breaks and the respondents are always undertakingone project or other and there is continuous need of such labour.13. In the case relied on by the learned senior counsel for theappellant reported in 2006 (8)SCC 508, when a joint scheme was takenup by State Government and Gram Panchayat for supply of water, bothcontributing 50% of the costs each, since there was no evidence toshow that the workman therein was appointed by the State, but only bythe Sarpanch, the Honourable Supreme Court has held against theworkman therein. But, in the case on hand, the projects wereundertaken by the respondents and appointments were made by them andsalaries were also paid by them, besides imposing service conditionsand fixing the salaries. Further more, there are continuous projectsfor the respondents to undertake. Therefore, the ratio laid down bythe Honourable Apex Court in the above case, has no application tothe facts of the case on hand. 14. Likewise, in the cases reported in 2007 (2) SCC 513, 2007 (1)SCC 533 and 2007 (5) SCC 742, the appointment orders were issued bythe concerned contractors only for one project and there was noevidence to show that thereafter in spite of continuation ofprojects, the employees were not accommodated. But, in the caseon hand, the appointment orders were issued by the respondents and ashas already been discussed supra, the respondents were undertakingone project or other continuously and in spite of such availabilityof projects, the appellant was not accommodated, even though some ofthe similarly situated persons were absorbed. Therefore, all theabove judgments relied on by the learned senior counsel for therespondents are factually distinguishable. 15. Likewise, in the case of PUNJAB ELECTRICITY BOARD vs. DARBARASINGH [(2006) 1 SCC 121], relied on by the learned single Judge while https://hcservices.ecourts.gov.in/hcservices/ rejecting the claim of the appellant herein, the workman therein wasengaged with a condition that his engagement will come to an end,once a regular employee is appointed and accordingly, when a regularemployee was appointed, the same was challenged by the workmantherein after a long delay of about eight years. Only in thosecircumstances, the Honourable Apex Court has held as against theworkman therein, which is not the case in hand, since though therewas continuous project work and though similarly placed persons wereabsorbed/taken to regular establishment, the same benefit was deniedto the appellant, apparently because of initiation of legalproceedings by the appellant. Therefore, the above judgment reliedon by the learned single Judge also has no application to thepeculiar facts and circumstances of the case on hand. 16. Thus, on a thorough analysis of all the facts andcircumstances of the case, it is to be held that even though the workwas continuous in nature and the respondents are undertaking oneproject or other, the appellant was given breaks, apparently torestrain him from making any claim of regularisation, which woulddefinitely be an unfair labour practice, exhibited on the part of therespondents. Further more, when similarly situated persons wereeither absorbed or taken to the regular establishments, the appellantwas denied the same benefit by the respondents, thus discriminatinghim and unequalising the equals, that too without offering anyreasons for the same.17. In these peculiar facts and circumstances of the case, wehave no hesitation to hold that the learned single Judge has notproperly appreciated the facts and circumstances of the case.Therefore, we set aside the order of the learned single Judge and wedirect that the appellant also should be absorbed into the servicesof the respondents, on the same terms and conditions imposed on thesaid Vasanthakumari. However, it is made clear that the appellant isnot entitled for any backwages, applying the principle of 'no work,no pay'.With this modification to the order of the labour Court, thisappeal is allowed. No costs. Consequently, M.P.No.1 of 2008 isclosed.Sd/-Asst. Registrar/true copy/Sub Asst. RegistrarRao https://hcservices.ecourts.gov.in/hcservices/ To1. The Director, Indian Institute of Technology, Chennai-600036.2. The Assistant Registrar (IC & SR) Indian Institute of Technology, Chennai-600036.3. The Presiding Officer, Principal Labour Court, Chennai-600104.+1 cc to Mr.C.Umashankar, Advocate, SR.No.37277+1 cc to Mr.R.Parthiban, Advocate, SR.No.37919Judgment in W.A.No.169/2007JP (CO)SMK/31.7.08