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| 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.