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2020 }

| 15 {

No.

37

Poudouchéry

Mardi

15

Septembre

2020 (24 Bhadra 1942)

No.

Puducherry

Tuesday

15th

September

2020



SOMMAIRES

CONTENTS



Page

Page

..

590

Sentence arbitral du travail

.. 590

Award of the Labour Court

.. 590

de tribunal.



..

598

Notifications du Gouvernement .. 598

Government Notifications .. 598



..

600

Avis d’ appel d’ offres

.. 600

Tender Notices

.. 600



..

603

Annonces

.. 603

Announcements

..

603

590

LA GAZETTE DE L’ETAT

[15 September 2020

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 85/AIL/Lab./T/2020,

Puducherry, dated 16th July 2020)

NOTIFICATION

Whereas, an Award in I.D. (T) No. 01/2018, dated

19-02-2020 of the Industrial Tribunal, Puducherry, in

respect of the Industrial Dispute between the

management of Puducherry Road Transport Corporation

Ltd., Puducherry and PRTC Uzhiyargal Sangam,

Puducherry, over abolition of contract system of

employment for running staff of the bus and conversion

as daily waged employees has been received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read with

the notification issued in Labour Department’s G.O. Ms.

No. 20/91/Lab./L, dated 23-05-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

S. MOUTTOULINGAM,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL AT

PUDUCHERRY

Present : Thiru V. PANDIARAJ, B.SC., LL.M.,

Presiding Officer.

Wednesday, the 19th day of February 2020.

I.D. (T) No. 01/2018

The Secretary,

PRTC Uzhiyargal Sangam,

No.24, Thiru. Vi. Ka. Nagar,

Mudaliarpet, Puducherry.

. . Petitioner

Versus

The Managing Director,

Puducherry Road Transport

Corporation Limited (PRTC),

No.4, Ayyanar Koil Street,

Raja Nagar, (Behind New Bus Stand),

Puducherry.

. . Respondent

This industrial dispute coming on 12-02-2020

before me for final hearing in the presence of

Thiru P. Sankaran, Counsel for the petitioner and

Thiru B. Mohandass, Counsel for the respondent,

up on hearing, up on perusing the case records,

after having stood over for consideration till this day,

this Court passed the following:

AWARD

1. This Industrial Dispute has been referred by the

Government of Puducherry as per the G.O. Rt. No. l83/

AIL/Lab./T/2017, dated 29-11-2017 for adjudicating the

following:-

(a) Whether the dispute raised by PRTC Uzhiyargal

Sangam, Puducherry, against the management of

M/s. Puducherry Road Transport Corporation Ltd.,

Puducherry, over abolition of contract system of

employment for running staff of the bus and their

conversion as daily waged employees is justified or

not? If justified, what is the relief entitled to?

(b) To compute the relief if any, awarded in terms

of money if, it can be so computed?

2. The brief averment of the petition filed by the

petitioner:-

The petitioners in the industrial dispute are the

drivers and conductors and they are the members of

the PRTC Uzhiyargal Sangam and they filed this claim

petition through the Secretary of PRTC Uzhiyargal

Sangam. The petitioners/members have educational

and technical qualification to employs them as driver

and conductors. This petitioner Union represents this

case for 71 drivers and 114 conductors who were

employed as first batch on 18-09-2015 and 83 drivers

and 38 conductors who were employed as second

batch on 19-10-2015. They were appointed by the

respondent in violation of the rules and regulations

of recruitment as drivers and conductors in the

disguise of contract employment by entering into an

one to one agreement between the respondent and

the Union workmen, instead of appointing them as

daily rated employees, who are eligible for

regularization under the existing the recruitment rules.

The respondent has appointed them in violation of

recruitment rules, despite they are having full

qualification, the duties and responsibilities for the

workman are the same. The petitioner Union has

submitted a letter to the respondent vide Letter

No. PRTCEU/19/2016, dated 27-07-2016 with a request

to convert them as daily rated wages employees

immediately with appropriate rates of Government

wages to enable their eventual absorption as per

notified Recruitment Rules of the respondent, which

provide for absorption of daily rated wages staff and

those on contract and to ensure conformity of job

without any willful, interruption with a motive of

depriving continuity of service. But, the respondent

did not give any reply to the same. In the mean time,

591

15 September 2020]

LA GAZETTE DE L’ETAT

the respondent attempted to have a move to

terminate the regularly recruited drivers and

conductors to make fresh appointments. This

petitioner Union filed their protest vide Letter

No. PRTCEU/07/2017, dated 16-02-2017, wherein, it

has requested the respondent to consider their

request of conversion as daily rated wages staffs

and regularization on completion of 3 years of

service as per the approved recruitment rules.

But, the respondent did not response to it. Thereafter,

this petitioner Union approached the Conciliation

Officer and raised the industrial dispute on 13-03-2017

as per the decision taken on 11-02-2017 in the General

Body Meeting. The conciliation also ended in failure.

The respondent corporation which is the public

sector undertaking of Government supposed to act

as an example as a model employer in adopting and

implementing the laws, rules and regulations already

established and practiced by the corporation. The

respondent corporation engaged in violation of

established laws and practices, by inventing a novel

method of recruitment and thereby adopted unfair

labour practice and committed injustice to these

petitioners especially by entering into one to one

contract employment. Further, it has violated the

provisions of Minimum Wages Act, ESI, EPF and the

provisions of Insurance Act. It has also indulged in

Violation of Contract Labour (Regulation and Abolition)

Act, 1948 and the Motor Transport Workers Act, 1961.

The recruitment of running staff of petitioner Union

on contract basis is illegal and unjust and they are

entitle for conversion as daily rated employees as per

the existing Recruitment Rules and they have to be

regularized accordingly. The petitioner Union prayed

to give direction to the respondent to convert the

existing members of the petitioner Union as daily

rated employees with effect from the date of appoint

on the current scale of pay with back wages,

continuity of service and all other attendant benefits

and hence, it seeks to allow this claim statement.

3. The brief averment of the counter filed by the

respondent:-

(i) The respondent denied all the averments

except those are specifically admitted. The respondent

has not violated the existing Recruitment Rules for

the appointment of post of drivers and conductors.

The respondent admitted, the representation made by

the petitioner Union on 27-07-2016, demanding

immediate conversion of the petitioner Union

workman into daily rated wages employees. Though

the respondent management did not give reply in

writing, it has clearly pointed out to the Union

representatives, about its inability to accept the claim

in accordance with law. The respondent corporation

never attempted to terminate the regularly recruited

drivers and conductors and never tried to make any

fresh appointment. Even then, it has received the

representation made by the Union, dated 16-02-2017,

though it was given without any justification.

Furthermore, the respondent management pointed

out it very categorically, to the Union representatives,

about its unjustifiability and it has brought out the

very same reply given to the petitioner. The respondent

corporation has filed its reply to the Conciliation

Officer on 05-06-2017 wherein, it has clearly stated

that the drivers and conductors were appointed on

contract basis for 11 months on consolidated wages

and it has denied that there is no truth that the

drivers and conductors are doing work of a regular

employee, in the corporation. It has explained the

break given to the drivers and conductors, as it is

the part of routine procedure and it has explained

that it is provided in their contract of employment

itself. As per the recruitment rules daily rated wages

employees alone can be observed as regular

employees. It has clearly stated that the contract

drivers and conductors cannot claim anything more

than that of the terms of contract. It has further

stated the contract drivers and conductors are

governed by the terms and conditions of their

contract of employment and there is no provision for

continuing them as daily rated wages employees by

way of conversion. Furthermore, it has explained the

severe financial crisis at that time and it has explained

the difficulty in payment of wages to the regular

staffs. Furthermore, the respondent has given its

reply on 15-09-2017 to the rejoinder statement

submitted by the petitioner Union on 19-06-2017.

It has denied the allegation of exploitation of labour,

under the contract system, introduced by the

management. Furthermore, there is no legal right for

a daily rated workman to seek regularization after

completion 240 days service. The drivers and

conductors, who are the members of the Union, have

not been appointed by any contractor, on the other

hand, they have been appointed through a separate

and special contract and hence, the provisions of

Contract Labour (regulation and abolition) Act, 1948

would not applicable to them. The petitioner Union

has wrongly invoked the provisions of Minimum

Wages Act, 1948 and the Motor Transport Workers

Act, 1961, which have no bearing in the claim made

by this petitioners. According to the principles of

Labour Law, engagement of certain types of

employees by special contract for a specific period,

for engagement of work under a new scheme, under

the special project, depending up on the needs of the

employer are permissible and those employees cannot

be treated on par with other regular employees and

592

LA GAZETTE DE L’ETAT

[15 September 2020

they cannot seek regularization by comparing

themselves with a different set of employees recruited

in accordance with the Recruitment Rules. Since, the

petitioners, under the Trade Union, are so appointed

their claim has to be dismissed and hence, the

respondent prayed to dismiss the claim.

4. On the side of the petitioner only witness was

examined and Ex.P1 to Ex.P13 was marked. On the side

of the respondent only one witness was examined as

RW1 and Ex.R1 was marked through cross-examination

of PW1.

5. The petitioner side Counsel filed the written

argument and filed additional written argument. It is

stated in the written argument that the respondent

recruited the workman as drivers and conductors under

the cover of contract, in violation of Recruitment Rules

which permits the appointment to be carried on as daily

rated wages, which enables them to absorb as regular

employee. It is further argued in the written argument

that the recruitment was in violation of section 7, 10 and

12 of CLRA 1948. It is further argued that the

appointment was violation of Recruitment Rules as they

are having full educational and technical qualification

for the said post. It is further stated in the written

argument that the respondent has adopted a completely

new mode of recruitment which is illegal and

unjustifiable and it amounts to unfair labour practice.

It is further stated in the written argument that the

respondent cannot enter into one to one agreement with

the employee directly and it is against the Recruitment

Rules and other provisions of Labour Laws and

therefore, the petitioner prayed to convert them as daily

rated employees to enable them to absorb as regular

employee. It is further stated in the written argument

that void contract was entered at the time of recruitment

willfully by the respondent/corporation and as the

recruitment and contract is illegal and void, they have

to be converted as daily rated employees as per the

Recruitment Rules of the respondent/corporation and

prayed to allow the claim of these petitioners. It is

further stated in the written argument that as per the

Ex.P12 one Thiru P. Ravi, who was appointed on

contract basis, has been converted into daily rated

employee and thereafter, he has been regularized,

therefore, the same sort of benefit has to be offered to

these petitioners. It is further stated in the written

argument that as per Ex.P13, the voucher paid casual

employee, have been converted into daily rated

workman and then regularized and the same kind of

benefit has to be given to these petitioners. It is stated

in the written argument that the regularization were

made after the framing of Recruitment Rules in 2006 as

amended in 2008. It is stated, in the written argument

that RW1 has given contradict version by admitting

Ex.P13 series in which the regularization was made on

16-08-2010 which is well subsequent to the amended

Recruitment Rules, 2008. It is further stated that these

petitioners are performing all kinds of work like that of

regular drivers and conductors and therefore, they are

entitle for regularization. It is further stated in the

written argument that, the reply by the respondent/

corporation, that it was unable to consider the request

made by these petitioners as it is against the law is

nothing but an evasive reply to deny the regularization

of these petitioner and hence, necessary orders has to

be passed direct the respondent to convert these

petitioners as daily rated employees to enable them to

get all the benefits of the regular employees.

6. The respondent side Counsel argued that these

petitioners were appointed in a manner known to law

and not in illegal manner. It is further argued that for a

special purpose, special schemes and in necessary

circumstances, the respondent/corporation has power

to recruit the employees on contract basis and under

Special Contract Act and it is not a violation of

Recruitment Rules and Labour legislation. It is argued

that these petitioners were recruited on contract basis

and therefore, they cannot claim conversion for the

purpose of regularization and this Court is not having

power to order for such regularization. It is further

argued that there is no existence of vacancy in the

corporation and therefore, their prayer cannot be

consider for a while. It is further argued that these

petitioners cannot be converted and regularized in

violation of terms of contract and these petitioners are

bound by the terms and conditions of contract and

therefore, their claim has to be dismissed. Furthermore,

the respondent side Counsel produced the following

citations

2016 (1) SCC 521

2018 (17) SCC 762

2018 (17) SCC 808

2019 (5) SCC 773

2019 (8) SCC 294

In fine, he prayed to dismiss the claim made by these

petitioners.

7. Points for consideration:

Whether the dispute raised by PRTC Uzhiyargal

Sangam, Puducherry, against the management of

M/s. Puducherry Road Transport Corporation Ltd.,

Puducherry, over abolition of contract system of

employment for running staff of the bus and their

conversion as daily waged employees is justified or

not?

593

15 September 2020]

LA GAZETTE DE L’ETAT

8. On the Point:

The petitioner side witness by name Velayan

examined himself as PWI and he has deposed that

the petitioners were recruited against the existing

Recruitment Rules and they were appointed through

one to one agreement illegally, which is prohibited

under law and it was adopted by the respondent/

corporation with an intention to deny their

regularization. It is further deposed that they are

having full educational and technical qualifications

and performed their duties, like that of regular drivers

and conductors from 18-09-2015 and 19-10-2015, in

two batches and rendering unblemished service to

the corporation and to the public and they have to

be converted as daily rated employees to enable them

to absorb as regular employees. It is further deposed

that for the illegal act of commission of appointment

of these petitioners by contract was purely carried

out by respondent and therefore, they cannot be

punished by non-conversion into daily rated wages.

It is further deposed that their appointment through

the mode of contract has to be set aside and they

have to be converted as daily rated employees.

9. Per contra, RWL has deposed that the corporation

is empowered to recruit the drivers and conductors

under the contract employment under special contract

Act, whenever necessity arises under any special

scheme or project, etc. He further deposed that the

recruitment of these petitioners as drivers and

conductors are not illegal as alleged in the petition and

these petitioners cannot claim anything beyond the

terms of contract. It is further deposed that these

petitioners were recruited for a period of 11 months on

consolidated wages and the break was also given as

part of routine procedure in their contract employment

itself. It is further deposed that the drivers and

conductors are governed by the terms and conditions

of their contract of employment and there is no

provision for converting them as daily waged

employees.

10. PWl has pleaded and deposed that in violation

of Recruitment Rules, they were recruited as drivers and

conductors. It is further pleaded and deposed that the

respondent has adopted a novel method of appointment

through one to one contract which is against the

Recruitment Rules. As per the evidence of PW1 and as

per the pleadings of these petitioners the Recruitment

Rules were framed during the year 2006 and amended

during the year 2008. If, at all this part of evidence is

true then the petitioners must produce the Recruitment

Rules of 2006 and amended Recruitment Rules of 2008

before this Court and they must elucidate how the

appointment was made in violation of the abovesaid

Recruitment Rules, but, they have not produced any

such Recruitment Rules of 2006 and amended

Recruitment Rules of 2008. The petitioners have

produced Ex.P1 and P2 and alleged it as the document

of Recruitment Rules. But, on perusal of Ex.P1 and P2,

it seems that Ex.P1 and P2 contains some details only

and it has not contain the details of Recruitment Rules

of appointment. Therefore, Ex.P1 and P2, this Court was

unable to come to the conclusion that Recruitment

Rules were violated by this respondent.

11. At the same time, RW1 has deposed that these

petitioners were appointed drivers and conductors on

the basis of contract for 11 months on consolidated

wages and he has further deposed that they cannot be

converted into daily rated employees and they cannot

go against the terms of contract and they cannot claim

anything in violation of terms and conditions of the

contract of employment. To substantiate this part of

evidence Ex.R1 has been marked by the respondent

through the cross-examination of PW1. In Ex.R1, terms

of conditions of contract employment, the position and

period of employment has been stated in clause 1 as

follows:

“The Employer hereby offers the employment to

the Employee as driver and the Employee hereby

accepts the offer to serve in such capacity, for the

period of Eleven Months from the Date of the

Execution of this Agreement and also the

employment is subject to the conditions mentioned

in the paragraph No. 9 below (Amendment and

Termination)”.

12. Thus, it is seen from the abovesaid terms and

conditions that these petitioners were recruited for

eleven months only on consolidated wages on contract

basis only. Furthermore, as per clause No. 10, the

employee, agreed that he will not claim any regular

appointment in the corporation during or after the

contractual period. It shows that these petitioners

themselves consented to relieve their claim of regular

appointment. So, as per the terms of contract these

petitioners cannot claim regularization. Furthermore, in

the terms and conditions of the contract, nowhere it is

stated that they can be converted into daily rated

employees. Therefore, as per Ex.R1 their claim cannot

be granted and they cannot be converted into daily

rated employees. In support of this, the respondent side

Counsel has filed a citation reported in 2019 (6) SCC 250,

wherein, the conductor who was recruited on contractual

basis, who was terminated from service, has challenged

his termination. In the abovesaid case, the Hon’ble

Supreme Court has held that the terms of appointment

indicates that the respondent was on a purely

contractual appointment and that the service could be

dispensedwith without notice at any stage and further

594

LA GAZETTE DE L’ETAT

[15 September 2020

it has held that the termination is correct. Here, in this

case also these petitioners are recruited on contractual

basis hence, they cannot claim anything more than that

of the terms of contract.

13. At this juncture, this Court inclined to go

through the citations produced on the side of the

respondent. In the citation reported in 2016 (1) SCC 521,

the 9th, 13th and 16th paragraphs runs as follows:

“In the present case, the Finance Officer in the

University engaged the respondents as daily wagers

for his Central Accounts Section. Admittedly, the

respondents were not engaged by following due

procedure and their engagement was not against any

sanctioned posts. In order to curb the illegal practice

of engaging daily wagers, Vice-Chancellor of the

University issued order, dated 03-08-1990 clarifying

that the daily wagers will not be allowed continue

after 31-12-1990 until prior written approval is

accorded by the Vice-Chancellor. No such approval

was taken qua the respondents for their continuance.

The respondents were terminated with effect from

01-01-1991. When the respondents' appointments

were illegal, the respondents would not be entitled

any right to be regularized or absorbed”.

“In Umadevi case, this Court settled the principle

that no casual workers should be regularized by the

Courts or the State Government and as per

constitutional provisions all the citizens of this

country have right to contest for the employment and

temporary or casual workers have no right to seek

for regularization. In para 47, this Court held as

under: (SCC p.39)”.

“When a person enters a temporary employment

or gets engagement as a contractual or casual

workers and the engagement is not based on a proper

selection as recognized by the relevant rules or

procedure, he is aware of the consequences of the

appointment being temporary, casual or contractual

in nature. Such, a person cannot invoke the theory

or legitimate expectation for being confirmed in the

post when an appointment to the post could be made

only by following a proper procedure for selection

and in cases concerned, in consultation with the

Public Service Commission. Therefore, the theory of

legitimate expectation cannot be successfully

advanced by temporary, contractual or casual

employees. It cannot also be held that the State, has

held out any promise while engaging these persons

either to continue them where they are or to make

them permanent. The State cannot constitutionally

make such a promise. It is also obvious that the

theory cannot be invoked to seek a positive relief of

being made permanent in the post”.

“In Umadevi case, this Court held that the Courts

are not expected to issue any direction for absorption/

regularization or permanent continuance of temporary,

contractual, casual, daily wage or ad hoc employees.

This Court held that such directions issued could not

be said to be inconsistent with the constitutional

scheme of public employment. This Court held that

merely because a temporary employee or a casual

wage worker is continued for a time beyond the term

of his appointment, he would not be entitled to be

absorbed in regular service or made permanent,

merely on the strength of such continuance, if, the

original appointment was not made by following a

due process of selection as envisaged by the relevant

rules. In view of the law laid down by this Court, the

directions sought for by the appellants cannot be

granted.”

14. As per the abovesaid citations the workman who

was not engaged by following due procedure and not

against sanctioned post can be terminated. Further,

it is held in the abovesaid citation even, the daily rated

employees service can also be terminated at the

instance of the employer. Furthermore, as per Umadevi

(3) case,

“when a person enters into employment are gets

employment as a contractual or casual worker and the

engagement is not based on a proper selection as

recognized by the relevant rules or procedures,

he is aware of the consequences of the appointment

being temporary, casual or contractual in nature,

such a person cannot invoke the theory of legitimate

expectation for being confirmed in the post when an

appointment to the post would be made only by

following a proper procedure for selection and in

cases concerned, in consultation with Public Service

Commission”. Thus, as per the abovesaid citation

these petitioners being contractual employees cannot

be regularize or converted into daily wages

employees. Further, the respondent side Counsel

produced another citation reported in 2018 (17) SCC

762, wherein, it is held that invalid appointment/

illegal appointment/wrong appointment without

following due process can be terminated. Wherein,

2 to 6 paragraphs runs as follows:

“For the sake of convenience, we are taking the

facts from CA No. 9891 of 2010. The appellant Arbind

Kumar was appointed as a Constable in Dhanbad

District on 31-03-1998. There is no dispute that the

provisions in the Police Manual for such appointment

were not followed and without inviting applications

from the eligible persons, the appellant’s case for

appointment allegedly recommended by the

Superintendent of Police, Dhanbad to the Inspector

General-cum-Inspector General of Police (Welfare)

595

15 September 2020]

LA GAZETTE DE L’ETAT

Bihar, Patna (DG- DIG, on the ground that father of

the appellant was an Assistant Sub-Inspector of

Police and had met with an accident on 02-08-1997

and sustained injuries leading to amputation of right

leg. It is not in dispute that father of the appellant

continued to serve the Police force till he

superannuated sometime 2005.

“So far as the two appellants in the other appeal

i.e., CA No. 9892 of 2010, concerned, they claim to

be bra've persons who helped the Police against

Naxalites and as a result, both of them were

recommended for appointment of the then

Superintendent of Police, Dhanbad to the DG-cum-IG,

Bihar, Patna after their cases were cleared by the

DG-cum-IG, they were appointed as Constables on

16-10-1996.”

“The appellants underwent training and began

working as Constables. Even the fact of such

appointments made without adhering to the

provisions of the Police Manual came to light, the

Home Secretary, Government of Bihar issued a

Communication in September 2000 to issue notice to

persons appointed in such manner against law and

to cancel such appointments if, they are so found.

As a result of such exercise, the service of the

appellants came to be terminated in 2002 and 2003.

The termination was done after serving show-cause

notice on the simple ground that the appointments

were made through a process unknown to law and

in total disregard of the relevant provisions in the

office manual. Some controversy was raised as to

whether show-cause notice was served on the

appellant Arbind Kumar but, it has been pointed out

that his show cause as well as the notice is annexed

as Annexure P-6.”

"On behalf of Arbind Kumar, reliance has been

placed on a judgment this Court in Arun Kumar Rout

v. State of Bihar, whereby this Court in the peculiar

facts of that case directed for framing a scheme for

absorption/regularization of the appointees who were

working as temporary or ad hoc for long number of

years. The judgment itself makes it clear that the order

was based under Article 142 of the Constitution of

India with a specific observation that it shall not be

treated as a precedent. Hence, we are not persuaded

to follow that course of action in the present case.

Although the appellants have pleaded that they are

mere victims of irregular or illegal action by the Police

officials the beneficiaries cannot blame the

appointing authority alone and claim that the illegal

appointment should be continued in perpetuity. To

accept such plea would amount to giving premium

to dishonest and illegal acts in matters of public

appointments.”

“The appellants were terminated as soon as the

authorities came to know of such illegal

appointments. They had not completed even ten

years so as to perhaps raise a claim for one-time

consideration for regularization in terms of the

judgment of the Constitution Bench in State of

Karnataka v. Umadevi (3). In the facts of the case,

we find no merit in these appeals, they are

accordingly dismissed. There shall be no order as to

costs.”

15. As per the abovesaid paragraphs the appointment

made in violation of RRs can be terminated. Here, in this

case also admittedly, these petitioners were recruited in

violation of Recruitment Rules of 2006 and amended

Recruitment Rules of 2008. Therefore, if, we apply the

abovesaid principles rendered by the Hon’ble SC in this

case the claim made by these petitioners cannot be

answered in positive. Furthermore, the respondent side

Counsel filed another citation reported in 2018 (17) SCO

808 wherein, the Hon’ble SC has held that “respondent/

petitioner, not a daily wage earner but, contractual

employee and working for one and half months cannot

be consider for regularization. Further, paragraphs 1 to

3 runs as follows:

“Leave granted. We have heard the learned

Counsel for the parties.

“We have considered Government Order No. 355-

GAD of 1996, dated 30-04-1996 under which the claim

for regularization was made by the Respondent-writ

petitioner. We have also considered the order of the

High Court, dated 28-02-2000 passed in Anand Gopal

Mishra v. State of J & K directing the consideration

of the claim of the respondent-writ petitioner and the

order of the State Government, dated 06-01-2001

rejecting the claim of the respondent-writ petitioner.”

“Having read and considered the above materials

on record we are of the view that the High Court was

not justified in directing regularization of the

respondent-writ petitioner who was not a daily wage

earner and was employed contract basis and had, in

fact, worked for a period of one and half months

only.”

16. Here, in this case also these petitioners were

recruited on contractual basis during the year 2015.

Therefore, even as per the abovesaid citation also the

claim made by these petitioners also cannot be

considered in positive in their favour. Further more, the

respondent side Counsel filed another citation reported

in 2019 (5) SCC 773, wherein, paragraphs 1, 5 and 13

runs as follows:

596

LA GAZETTE DE L’ETAT

[15 September 2020

“Leave granted. This appeal is filed against the

final judgment and order, dated 05-12-2016 passed by

the High Court of Uttarakhand at Nainital in Union

of India v. All India Trade Union Congress whereby

the High Court dismissed the appeal filed by the

appellants herein and issued directions to them in the

nature of mandamus by framing a scheme itself for

its implementation to regularize the services of the

casual paid labourers and granted them, the benefits

similar to those of the regular employees under all

the Labour Laws.”

“Respondent Trade Unions filed a Writ Petition in

the High Court of Uttarakhand at Nainital against the

appellants claiming a relief for regularization of the

casual workers, who according to the respondents

(writ petitioners) were working for a considerable

long period in one project undertaken by BRO in the

State of Uttarakhand for construction of roads for

going to pilgrimage of Char Dham Yatra. It was the

case of the writ petitioners that these workers though

working for number of years for the Union of India

and rendering their services, but, they were neither

being regularized in the Government set-up as a

Government Employee and nor were being paid

regular/temporary/perks/facilities which were being

paid to Government Employees and they were being

provided with any protection which was available to

Government employee. In substance and in effect,

the respondents (writ-petitioners) claimed that all the

casual workers, who were working in the project

question, should be regularized in Government

Service.”

“That was also a case where the Union of workers,

namely, “Vartak Labour Union” had claimed a relief

of regularization of the services of the casual workers

who were working in BRO for a considerable period

in construction activities undertaken by BRO in the

State of Assam. The Union workers, therefore, filed

a Writ Petition against the Union of India in the

Gauhati High Court. The High Court allowed the Writ

Petition and directed the Union of India to regularize

the services of all such casual workers. The Union

of India felt aggrieved and filed Special Leave to

appeal in this Court against judgment of the Gauhati

High Court. This Court allowed the appeal and set

aside the order of the Gauhati High Court with the

following observations;

“We are of the opinion that the respondent

Union’s claim for regularization of its members merely

because they have been working for BRO for a

considerable period of time cannot be granted in light

of several decisions of this Court, wherein, it has

been consistently held that casual employment

terminates when the same is discontinued and merely

because a temporary or casual worker has been

engage beyond the period of his employment, he

would not be entitled to be absorbed in regular

service or made permanent, if the original

appointment was not in terms of the process

envisaged by the relevant rules.”

“Therefore, in the facts and circumstances of the

instant case, where members of the respondent Union

have been employed in terms of the Regulations and

have been consistently engaged in service for the

past thirty to forty years, of course with short breaks,

we feel, the Union of India would consider enacting

an appropriate regulation/scheme for absorption and

regularization of the services of the casual workers

engaged by Bro for execution of its ongoing projects.”

“In the final analysis, the appeals are allowed and

the impugned judgments and orders are set aside.

However, in the circumstances of the case, the

parties are left to bear their own costs.”

“In the light of the foregoing discussion, we are

unable to agree with the reasoning and the

conclusion arrived at by the High Court in the

impugned order. As a consequence, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside and as a result thereof, the Writ

Petition filed by the respondents is dismissed.”

17. As per the abovesaid citation even if, the casual

workman worked for more than considerable period of

time their causal employment terminates when the same

is discontinued. Furthermore, it is held that merely

because a temporary or casual worker has been

engaged beyond the period of his employment,

he would not be entitled to be absorbed in regular service

or made permanent, if, the original appointment not in

terms of the process envisaged by the relevant rules.

Here, in this case also these petitioners were not

recruited as per the service rules. Furthermore, they

cannot go beyond the terms of contract of employment

even as per the abovesaid citation also. Hence, the claim

made by the petitioners cannot be granted in the light

of the abovesaid citation. Furthermore, the respondent

side Counsel produced another citation reported in 2019

(8) SCC 294 wherein, para 15 and 17 runs as follows:

“We have heard the learned Counsel for the

parties and find that the orders passed by the

Tribunal, as affirmed by the High Court are not

justified in law.”

597

15 September 2020]

LA GAZETTE DE L’ETAT

“We find, the selection of the candidates for

training was not by way of transparent procedure nor

there was any commitment to appoint candidates who

have completed training as Gardeners, therefore, even

if, a candidate has completed training, he cannot

seek right of employment unless such posts are

advertised and filled up by giving opportunity to all

similarly situated candidates. The directions of the

Tribunal, as if firmed by the High Court, that the

candidates are intended to be employed are wholly

unjustified, as there cannot be any direction for

appointment only for the reason that the candidates

have undergone training. It is not necessary for this

Court to examine whether the post of Gardener has

been upgraded to the post of Horticulture Extension

Worker or that it is the same post having a different

nomenclature. The fact remains that all public posts

are required to be filled up by giving an opportunity

to all the candidates to apply and to compete for the

post.”

18. As per the abovesaid citation if, the appointment

was made dehors any selection procedure known for

making employment against the public post, therefore,

such appointment cannot be said to be protected by

Article 3(11) of Civil Service Rules. Here, in this case

also the petitioner himself admitted that their

recruitment was in dehors of the Recruitment Rules of

the corporation, hence, in such a circumstances the

claim made by the petitioners cannot be answered in

positive in their favor.

19. Thus, on analyzing the document Ex.R1 and the

oral evidence of the petitioner and the respondent it is

found that these petitioners were recruited on

contractual basis for a period of 11 months on

consolidated wages and there is no clause for

conversion of contractual employees into daily wages

employees, this Court cannot grant the relief sought for

by these petitioners.

20. In the result, the industrial dispute raised by the

petitioner against the respondent over the abolition of

contract system of employment for running the staff of

the bus and their conversion as daily waged employees

is decided as unjustified and hence, this Industrial

Dispute is dismissed. No cost.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the open Court on

this the 19th day of February, 2020.

V. PANDIARAJ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 13-03-2019

Velayan

List of petitioner’s exhibits:

Ex.P1 —

Copy of recruitment rules for

the post of conductor.

Ex.P2 —

Copy of recruitment rules for

the post of driver.

Ex.P3

— 23-07-2016

Copy of letter submitted by

the petitioner Union to the

respondent management.

Ex.P4

— 16-02-2017

Copy of letter submitted by

the petitioner Union to the

respondent management.

Ex.P5

— 13-03-2017

Copy of industrial dispute

raised by petitioner Union.

Ex.P6

— 05-06-2017

Copy of the reply by the

respondent management.

Ex.P7

— 19-06-2017

Copy of the rejoinder filed by

the petitioner Union.

Ex.P8

— 15-09-2017

Copy of the additional reply

by

the

respondent

management.

Ex.P9

— 10-11-2017

Copy of the conciliation

failure report.

Ex.P10 — 29-11-2017

Copy of the Government

Order in G.O. Rt. No. l83/A/

C/Lab./T/2017.

Ex.P11 — 19-12-2017

Copy of the Gazette of

Puducherry No. 51, Page.

1381.

Ex.P12 — 14-06-1995

Copy of Office Order of the

P. Ravi.

Ex.P13 — 16-08-2010

Copy of Confirmation Order

of the Baskar.

List of respondents exhibit’s:

Ex.R1

— 03-08-2016

C o p y

o f

c o n t r a c t

o f

the employment between

respondent/management and

Tamilselvan for the post of

driver.

V. PANDIARAJ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.