The Superintending Engineer v. A.Mohammed Kuthputheen

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 31.08.2017 CORAM :

The Hon'ble MR.JUSTICE M.SUNDAR W.P. No.16905 of 2004 and WP.M.P.No.20027 of 2004 The Superintending Engineer, (Formerly Superintending Engineer - Acquisition Circle, Madurai Corpn., Tallakulam, Madurai-2), Madurai Electricity Distribution Circle/Metro,Tamilnadu Electricity Board, K.Pudur, Madurai.

.. Petitioner -vs1.A.Mohammed Kuthputheen 2.The Management (Commissioner), Madurai Corporation, Tallakulam, Madurai.

3.The Presiding Officer, Labour Court, Madurai.

.. Respondents Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari to call for the records of the third respondent Labour Court dated 13.8.2003, passed in I.D.No.195/95 and quash the same as illegal and without jurisdiction.

For Petitioner :

No appearance For Respondents :

No appearance for R-1 No appearance for R-2 R-3 - Labour Court

O R D E R

Subject matter of the instant writ petition arises under Industrial Disputes Act, 1947 (hereinafter referred to as 'I.D. Act', for brevity). The writ petitioner before me, i.e., The Superintending Engineer, (Formerly Superintending EngineerAcquisition Circle, Madurai Corpn., Tallakulam, Madurai-2), Madurai Electricity Distribution Circle/Metro, Tamilnadu Electricity Board, K.Pudur, Madurai., is hereinafter referred to as 'said Corporation', for the sake of convenience and clarity. The first respondent before me, i.e., Mr.A.Mohammed Kuthputheen,

is hereinafter referred to as 'workman', for the sake of convenience and clarity.

2.The workman was terminated by the said Corporation on 01.03.1982. Thereafter, an Industrial Dispute was raised by the workman.

Industrial Dispute was not referred to the jurisdictional Labour Court by the Government. A writ petition was filed in this Court and pursuant to a direction from this Court, the Industrial Dispute was referred to the jurisdictional Labour Court, i.e., Labour Court, Madurai (hereinafter referred to as 'said Labour Court', for the sake of convenience and clarity).

3.After a detailed enquiry, the said Labour Court partly allowed the claim of the workman and directed the said Corporation to give fresh appointment to the workman. With regard to the workman's claim for backwages and continuity of service, the same were negatived. Therefore, I say that the said Labour Court has partly allowed the claim of the workman. This is vide award dated 13.08.2003 in I.D.No.195/1995. This award is hereinafter referred to as 'impugned award', for the sake of convenience and clarity. The said Corporation has filed the instant writ petition in this Court assailing the impugned award.

4.This matter was listed before me earlier on 12.07.2017 and I recorded the proceedings and passed an order, which reads as follows:

"When the matter was called, there was no representation for the both sides in the first call. The matter was passed over and called again before lunch/before rising. Again, there was no representation for both sides in the second call also. Post for dismissal whenever the matter is listed in due course." 5.The above proceedings/order speaks for itself. 6.When the matter was listed and called today, again there was no representation on both sides. With a view to give one more opportunity, the matter was passed over and called after lunch. In the second call/post lunch also, there was no representation on both sides. The writ petition is of the year 2004. It was filed on 15.04.2004 to be precise. It has been pending for a decade and three years in this Court. The writ petition, which was filed on 15.04.

2004, was admitted and Rule Nisi was issued by this Court on 22.06.2004. While admitting the writ petition and issuing the Rule Nisi, an interim order being interim stay of the operation of the impugned award was also granted. Such interim order is operating until today, as the records before this Court do not show that the same was vacated, lifted or varied.

have been pending for well over a decade, for mere nonappearance of counsel more than once and in spite of opportunities being given, leads to avoidable delay in disposal of other cases. It also adds to the existing arrears. In my opinion, this is avoidable addition to arrears. Other option (other than adjournment) is dismissal for default/nonprosecution. This again does not help alleviate the maladies of delay/arrears, as filing of a restoration petition will commence one more round of litigation at the same tier, i.e., before a learned Single Judge. Therefore, I proceed to examine the matter on the basis of records before me and dispose of the writ petition on merits.

7.A very brief factual matrix leading to the filing of the instant writ petition has been set out by me in the earlier part of this order.

8.As this writ petition has been filed by the said Corporation assailing the impugned award, I proceed to examine the impugned award.

9.To be noted, the impugned award is a common award in three Industrial Disputes, being I.D.Nos.139/94, 140/94 and 195/95. Further to be noted, impugned award herein in the instant writ petition is an award in I.D.No.195/95 alone. 10.A perusal of the impugned award shows that the workman was appointed on 02.04.1980 as a daily wage worker, for the purpose of maintenance of electricity supply in the Electricity Department of said Corporation. As referred to supra, the workman was terminated from service on 01.03.1982, which led to the raising of the Industrial Dispute by the workman, which culminated in the impugned award. In the impugned award, the said Labour Court has examined in detail the correctness or otherwise of termination of the said workman on 01.03.1982. 11.

The pivotal defence of the said Corporation before the said Labour Court is that the said workman (along with several other workmen) was appointed for the purpose of maintaining supply of electricity by the said Corporation in anticipation of the 5th World Tamil Conference scheduled to be held at Madurai in January, 1981. In other words, the pivotal defence of the said Corporation is that the workman along with several others was appointed for a specific project and that the services of the workman and others were terminated immediately after the completion of the specific project. There are no other allegations about the said workman qua conduct or competence. 12.The said Labour Court has examined this pivotal defence that has been raised by the said Corporation.

Court has examined the appointment orders, which have been marked as Exs.W.3 and W.4 before it. It has also returned a finding that Exs.W.3 and W.4 do not reveal that the workman and others were appointed for a specific purpose. Most importantly, the said Labour Court has also returned a finding that immediately after the termination of the workman on 01.03.1982, the said Corporation has appointed some other individual in that place, which means that there was a perennial requirement and that the termination saying it is project specific/seasonal was illegal.

13.Two other points that were raised by the workman before the said Labour Court are that certain provisions of the I.D. Act have been violated. The said workman had contended that Section 25-S of the I.D. Act has been violated, as notice, as contemplated under the said provision, was not issued prior to termination. The said workman had also contended that Section 25-H of the I.D. Act, which deals with retrenchment, has also not been followed.

14.After a clear and cogent analysis of the oral and documentary evidence before it, the said Labour Court vide the impugned award has returned the finding that the termination of the workman on 01.03.1982 is bad. However, considering various aspects of the matter, the said Labour Court allowed the claim of the workman partly by holding/directing that the said Corporation should issue fresh appointment order to the workman and did not accede to the prayers of the workman qua backwages and continuity of service.

15.With regard to the point of violation of provisions of Section 25-S and 25-H of the I.D. Act, the said Labour Court has found that the said Corporation has not been able to establish that they are in compliance.

16.This takes me to the writ petition before me, where the impugned award has been assailed. A perusal of the affidavit filed in support of the writ petition of the said Corporation reveals that even now the said Corporation does not contend that they have complied with the provisions of Sections 25-S and 25-H of the I.D. Act. More important than this aspect of the matter is that in the affidavit filed in support of the writ petition before me, the said Corporation has not disputed the fact that it has not mentioned in the appointment order of the said workman (Exs.W3 and W4 before the said Labour Court) that the appointment is for a specific project. In other words, the said Corporation does not dispute the factual position that the appointment order of the said workman does not indicate to the workman that his appointment as a daily wage worker is only for a specific project, namely, 5th World Tamil Conference 1981 scheduled to be held in Madurai and for a specific purpose of

maintaining continuous electricity supply to the said World Tamil Conference by the said Corporation. In other words, the appointment order does not even suggest that the work is seasonal and not perennial.

17.Equally, with regard to the finding returned by the said Labour Court (on the basis of clear and cogent analysis of the documentary and oral evidence) that in the place of the terminated workmen (said workman and similarly placed workmen) post termination on 01.03.1982, the said Corporation has appointment some other individuals, even now, even in the writ petition the same has not been disputed by the said Corporation. Therefore, there is no option for this Court other than coming to the conclusion on the basis of the inevitable inference that the said Corporation has, in fact, appointed some other individual in the place of the said workman after termination on 01.03.1982. It follows as a sequitur that the nature of work assigned to the said workman is perennial in nature and not seasonal or for projects specifically limited to a particular period.

18.Besides the above facts, I do not find any tenable, much less acceptable reason in the affidavit filed in support of the writ petition warranting interference with the well-considered award of the Labour Court, which, according to me, has been made after clear and cogent analysis of oral and documentary evidence before it.

19.There is no other submission that has been raised in the writ affidavit to show that the said award is liable to be set aside.

20.Owing to all that have been stated supra, I come to the conclusion that the writ petition is bereft of merits and deserves to be dismissed.

21.This writ petition is, accordingly, dismissed. Consequently, WP.M.P.No.22027 of 2004 is also dismissed and therefore, the interim order will stand vacated. Considering the nature of the matter, there shall be no order as to costs. Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar sra

To 1.The Management (Commissioner), Madurai Corporation, Tallakulam, Madurai.

2.The Presiding Officer, Labour Court, Madurai.

W.P.No.16905 of 2004 GN(18/09/2017)