The University of Madras represented by its Registrar, Chepauk, Madras-600 005 v. Mr. R. Sugandhakumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 06-02-2009Coram:The Honourable Mr.Justice M.JAICHANDRENW.P.No.37464 of 20031.The University of Madrasrepresented by its Registrar, Chepauk,Madras-600 005.2.The Institute of CorrespondenceEducation,University of Madras,represented by its DirectorChepauk, Madras-600 005... Petitioners.Versus1.Mr.R.Sugandhakumar2.The I Additional Labour Court,represented by its Presiding Officer,Chennai-600 104... Respondents.Prayer: Petition filed seeking for a writ of Certiorari, callingfor the records relating to the petition in I.D.No.511 of 1995,from the file of the second respondent, culminating in its order,dated 6.5.2003 and quash the same. For Petitioners : Mr.Kandavadivel Doraisamy For Respondent : Mr.G.Rajagopalan (Senior Counsel) Appearing for R1 for Mr.P.Rose KamalamO R D E RHeard the learned counsel appearing for the petitioners andthe learned counsel appearing for the first respondent.2. This writ petition has been filed by the petitionerschallenging the award of the second respondent Labour Court, dated6.5.2003, made in I.D.No.511 of 1995. https://hcservices.ecourts.gov.in/hcservices/

3. It has been stated that the first respondent and 14 othershad filed a writ petition before this Court, in W.P.No.8431 of1986, praying for a writ of mandamus to direct the respondentstherein, including the petitioners in the present writ petition, tocontinue to employ the petitioners in service. After hearing thepetitioners, as well as the respondents therein, this Court waspleased to dismiss the said writ petition by an order, dated2.7.91, on a specific finding that the petitioners, except oneK.Balakrishnan, had not worked for the statutory period of 240 daysand therefore, the provisions of Section 25F of the IndustrialDisputes Act, 1947, would not be applicable to them. Aggrieved bythe said order, a writ appeal had been preferred before a DivisionBench of this Court, in W.A.No.1164 of 1991. The said appeal hadbeen dismissed by an order, dated 5.12.91, permitting thepetitioners to resort to the appropriate process prescribed by thelaws relating to industrial disputes. Accordingly, the firstrespondent had filed a petition before the Labour Officer III,Kuralagam, Chennai, for conciliation of the dispute. Since noconciliation could be arrived at, a failure report had beensubmitted to the Government. 4. As the dispute was not referred to the Labour Court foradjudication, the first respondent and some others, who weresimilarly placed, had filed a writ petition, in W.P.No.8191 of1993, seeking for a direction to the Government to refer thedisputes to the Labour Court. This Court had dismissed the saidwrit petition, on 4.9.95, reserving their right to approach theLabour Court, in accordance with law. In pursuance of the saidorder, the first respondent had raised an industrial dispute, onthe file of the second respondent Labour Court, in I.D.No.511 of1995, praying for a direction to direct the petitioners toreinstate him, with continuity of service and all other attendantbenefits. The petitioners had filed a counter, denying the claimsmade by the first respondent. Evidence was let in and documentswere marked. Thereafter, the second respondent Labour Court hadpassed an award, dated 6.5.2003, directing the petitioners toreinstate the first respondent in service, as a daily-ratedemployee, without adverting to the legal objections raised by thepetitioners stating that the first respondent had worked only for107 days in the year, 1985 and 134 days in the year, 1986. The saidfact had been testified by the witnesses examined on the side ofthe petitioners. The second respondent Labour Court had not givenany reason as to why the evidence of M.W.1 could not be considered,to reject the claims made by the first respondent. The firstrespondent had not proved that he had worked for more than 240 daysin a year. Therefore, the question of retrenchment does not ariseand Section 25F of the Industrial Disputes Act, 1947, has norelevance to the case of the first respondent. Therefore, the award https://hcservices.ecourts.gov.in/hcservices/ of the second respondent Labour Court, directing the petitioners toreinstate the first respondent in service, is unsustainable in theeye of law. The Labour Court had not shown sufficient reasons fornot accepting the evidence of M.W.1, examined on behalf of thepetitioners, to disprove the claims made by the first respondent.The second respondent Labour Court had failed to consider the legalquestion, as to whether there was retrenchment, as defined underSection 2(oo) of the Industrial Disputes Act, 1947. 5. Mr.Kandavadivel Doraisamy, the learned counsel appearingfor the petitioners had relied on the decision of the Supreme Courtof India, reported in M.P.Housing Board & Anr. V. ManojShrivastava (J.T 2006(3) SC 73), wherein it was held that onlybecause a person had been working for more than 240 days, he doesnot derive any legal right to be regularised in service. To obtainthe status of a "permanent employee" he must be appointed in termsof the statutory rules applicable to his service. He should havebeen appointed against a vacant post which had been duly sanctionedby the competent statutory authority or that his appointment shouldhave been made following the statutory law operating in the field.The learned counsel had relied on the decision of the Supreme Courtin Secretary State of Karnataka V. Umadevi (3) (2006 (4) SCC 1),to show that the Courts of law would not, in normal circumstances,issue instructions for regularisation of the services ofirregularly or illegally appointed persons. 6. Mr.G.Rajagopalan, the learned Senior Counsel appearing onbehalf of the first respondent, had submitted that even though thefirst respondent was a daily-rated employee, his wages were beingpaid on monthly basis. Even though it was contended on behalf ofthe petitioners that there was no work available for continuing thefirst respondent in employment, an advertisement had been issued bythe Madras University calling for candidates to be employed forperforming the same functions as that of the first respondent. Someof the persons who were similarly placed, as that of the firstrespondent, had been given employment by the petitioner University.Since the first respondent had been in continuous employment andhaving satisfied the requirements of the Tamil Nadu IndustrialEstablishments (Conferment of Permanent Status to Workmen) Act,1981, as well as the Industrial Disputes Act, 1947, the firstrespondent cannot be denied employment, as rightly held by thesecond respondent Labour Court. Therefore, the award of the secondrespondent Labour Court, dated 6.5.2003, made in I.D.No.511 of1995, is in accordance with law and valid. In such circumstances,the writ petition filed by the petitioner is liable to bedismissed, as devoid of merits. https://hcservices.ecourts.gov.in/hcservices/

7. The learned Senior Counsel, appearing for the firstrespondent, had relied on the following decisions in support of hiscontentions:7.1. In U.P.State Electricity Board Vs. Pooran Chandra Pandey(2007 (9) SCC 92), it has been held that the decision of theSupreme Court in Secretary State of Karnataka V. Umadevi (3) 2006(4) SCC 1 cannot be applied, mechanically, in all cases, withoutseeing the facts and circumstances of the particular case. In viewof Article 14 of the Constitution of India, the employees who hadput in long years of service cannot be denied the benefit ofregularization in service. The learned counsel had also relied onthe decision reported in Registrar, University of Madras Vs.P.Gajendran (1991 Writ L.R. 659). 8. At this stage of the hearing of the writ petition, thelearned counsel appearing on behalf of the University of Madras,the first petitioner herein, had placed before this Court acommunication No.F.1.(B)/ESTT/2008/3854, dated 1.12.2008, from theRegistrar-in-charge, University of Madras, Chennai, which reads asfollows:"With reference to your letter cited, I am, bydirection, to inform that the Temporary vacancies areavailable on daily wages basis only and Madras Universitycannot give guarantee for employment throughout the year.Subject to the order passed by the Honourable High Court,Madras University can consider and give temporaryappointment on daily wages without backwages.I am, therefore to request you to kindly informaccordingly to the Honourable High Court on the day ofhearing."9. The learned counsel appearing on behalf of the firstrespondent had submitted that the first respondent would accept theoffer made on behalf of the University of Madras, the firstpetitioner in the present writ petition, as stated in thecommunication, dated 1.12.2008, without agitating the matter anyfurther, on merits. 10. In view of the submissions made by the learned counselsappearing for the petitioners, as well as the respondents, theaward of the first respondent Labour Court is set aside and thefirst petitioner University is directed to consider and givetemporary appointment to the first respondent, on daily wages,without any backwages. However, if the first respondent isaggrieved by any of the aspects relating to the matter, it may be https://hcservices.ecourts.gov.in/hcservices/ open to him to agitate the same before the appropriate forum, inthe manner known to law. Accordingly, the writ petition stands closed, with theabove directions. No costs. csh Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1. The Presiding Officer,I Additional Labour Court,Chennai-600 104.2. The Registrar,University of Madras,Chepauk, Chennai-5.1 cc to M/s.G.R.Associates, SR.33551 cc to M/s.Muthumani Doraisamy, Advocates, SR.70420ksk (co)dv/13.2.Pre-Delivery Order inW.P.No.37464 of 2003