WA/1333/2005 of Singareni Collieries Company Limited, Vs Sri M. Durgaiah, on 27 December 2005

Conclusion

HONOURABLE SRI G.S. SINGHVI, THE CHIEF JUSTICE

AND

HONOURABLE SRI JUSTICE R. SUBHASH REDDY

WRIT APPEAL No: 1333 of 2005

Between:Singareni Collieries Company Limited, T E, Kothagudem, Khammam District, Repby its Chief General Manager and others.

... APPELLANTS...RESPONDENTS

ANDSri M. Durgaiah and others.::JUDGMENT::Counsel for the Appellants: MR.K.SRINIVASA MURTHYCounsel for the Respondents: MR.Y.VENKAT SASTRY27thDecember, 2005Per G.S. Singhvi, CJ

This appeal is directed against order dated 14.12.2004 passed by the learnedSingle Judge whereby allowed the writ petition filed by the respondents and orderedtheir reinstatement with continuity of service and back wages.

The appellants have challenged the order under appeal mainly on the ground thatthe learned Single Judge committed a serious error by disposing of the writ petitionon the basis of order dated 19.12.1999 passed by the Division Bench in Writ Appeal No. 1618 of 1999, ignoring the fact that factual matrix of that case was entirelydifferent. Another plea taken by the appellants is that the direction given by thelearned Single Judge for giving benefit of continuity of service and back wages tothe respondents is legally unsustainable because their services had beendiscontinued sometime in 1999 and no explanation was forthcoming for the delay ofmore than three years between the date of discontinuance of the engagement of therespondents and filing of the writ petition.

In the affidavit filed by Respondent No. 1, Sri M. Durgaiah, in support of the writpetition, it was averred that he was working as gardener since 7.5.1985 against apermanent vacancy; that he had continuously worked from 12.4.1993 and that otherpetitioners have also continued in service till 1999 with some breaks. It was thenaverred that the action of the non-petitioners to discontinue their services wasviolative of Articles 14, 16, 21 and 38 of the Constitution. It was further averred thatdespite the availability of permanent vacancies in the cadre ofGardner/Attender/Gardner-cum-Watchman, the management of Singareni CollieriesCompany High School had discontinued their services.

In the counter affidavit filed on behalf of the non-petitioners (appellants herein), anobjection was raised to the very maintainability of the writ petition on the ground thatthe petitioners were employees of the Singareni Collieries Educational Society andnot of the company and a petition for grant of a declaration that the termination oftheir services was illegal could not be entertained against the Society. It was furtheraverred that the writ petitioners had been engaged on purely temporary basis forspecified duration and their services were discontinued due to non-availability ofwork. The appellants also raised the plea of delay and pleaded that in the absenceof any cogent explanation for the long time gap between the date of discontinuanceof their engagement and filing of the writ petition, no relief should be granted to thewrit petitioners.

The learned Single Judge disposed of the writ petition by simply making referenceto order dated 19[th] December, 1999 passed in Writ Appeal No.1618 of 1999 and byassuming that the two cases were identical. This is clearly evident from the followingextracts of the order under challenge:

“The petitioners herein, who have been working as NMRs, weresought to be removed along with several others. The Writ Petition No.32720of 1997 filed by others was initially dismissed, but however, subsequently, on appeal the Division Bench of this court in the aforesaid mentioned caseallowed the appeal (W.A.No.1618 of 1999) with a direction to reinstate theservices of the petitioner with full back wages and also continuity of service.

Arguments

Having regard to the said decision of the Division Bench, this Writ Petition isalso allowed with similar directions to reinstate the petitioners with full backwages and with continuity of service. However, the respondents are directedto pay the back wages from the date of termination till the date ofreinstatement. The petitioners will be at liberty to seek appropriate reliefbefore an appropriate forum for minimum wages under the Minimum WagesAct. …”

Learned counsel for the appellants invited our attention to the fact that Sri A.Boomaiah who had filed Writ Appeal No.1618 of 1999 had continuously worked asNominal Muster Roll Casual Worker in the employment of the company from 10-8-1992 to 21-11-1997 and his service was terminated without following the procedureprescribed under the Industrial Disputes Act, 1947 (hereinafter referred to as ‘theAct’), whereas, the respondents had been appointed as Casual workers for fixedperiod without following the procedure prescribed for regular appointment. Learnedcounsel pointed out that the services of the respondents had been discontinued fromtime to time at the end of the tenure of their engagement and their case was notsimilar to that of Sri A. Boomaiah. Learned counsel criticized the order under appealby asserting that the learned Single Judge granted relief of reinstatement, continuityof service and back wages to the respondents without even looking into the factualmatrix of the case and without dealing with the objections raised on behalf of theappellants to the maintainability of the writ petition.

Learned counsel for the respondents argued that the innocuous directiongiven by the learned Single Judge does not call for interference because the case ofthe respondents is similar to that of Shri A. Bhoomaiah. He submitted that theappellants were victims of unfair labour practice perpetuated by the management ofthe company. He referred to letter dated 4.12.1999 written by Head Master of theSchool to the Chief (T&E) of the company, by which the case of respondent No.1was recommended for appointment as Gardener-cum-Sweeper in the school andsubmitted that the management of the company and the school should not beallowed to take advantage of the uneven position in which the respondents wereplaced.

We have given serious thought to the arguments of the learned counsel andhave gone through order dated 19.12.1999 passed in Writ Appeal No.1618 of 1999(A.Bhoomaiah v. Chairman & Managing Director, The Singareni Collieries Co. Ltd.,Kothagudem and others).

In our opinion, the direction given by the learned Single Judge for reinstatement ofthe writ petitioners (respondents herein) and continuity of service and full backwages is legally unsustainable.

A reading of order dated 19.12.1999 passed in Writ Appeal No.1618 of 1999,unmistakably shows that the Division Bench had allowed the appeal filed by Sri A.Boomaiah in the peculiar facts of that case. The Division Bench noted that theappellant had continuously worked under the employer for more than five years andthree months without any break. The Division Bench then took notice of the so-called unemployment in the unorganised sector and the unfair labour practice beingin vogue in the employment. The Division Bench also took cognizance of theprovisions contained in the Act and ordained that the appellant was entitled to bereinstated into service. In the case before us no material has been brought on recordto show that the respondents had been appointed after due selection or that theyhad continuously worked under the employer. Rather, the documents filed by theparties shows that the respondents were engaged by the management of the schoolwith intermittent breaks. Therefore, the direction given by the learned Single Judgefor reinstatement of the respondents with continuity of service and back wagescannot be sustained.

The matter deserves to be considered from another angle. It is not thepleaded case of the writ petitioners that they were appointed after considering theclaims of all eligible persons by sending requisition to the employment exchange asper the requirement of the Employment Exchanges (compulsory notification ofvacancies) Act, 1959 or by issuing public advertisement. That apart, they have notproduced any evidence to prima facie show that their engagement for fixed term withintermittent breaks amounted to an unfair labour practice. They have also notexplained as to why they had not sought intervention of the court immediately afterdiscontinuance of their engagement in the year 1999. In this view of the matter, theorder under challenge cannot be sustained by recording a finding that the employerhad resorted to unfair labour practice.

There is another reason why the impugned order should be set aside. Beforeordering reinstatement of the respondents, learned Single Judge did not advert tothe facts of the case and did not consider whether the action of the action of theemployer was vitiated due to violation of any provision of the Constitution or statuteenacted by the legislature. The learned Single Judge also failed to consider whetherthere was merit in the objection raised on behalf of the employer to themaintainability of the writ petition and whether it was a fit case for grant of reliefdespite the fact that the petitioners had not explained the long time gap of more thanthree years. In our view, failure of the learned Single Judge to advert to the relevantissues arising in the writ petition has resulted in failure of justice and, therefore, theorder under challenge is liable to be set aside.

Before concluding we may mention that the respondents who fall within thedefinition of ‘workmen’ under Section 2 (s) of the Act could have questioned thealleged wrongful termination of their services by raising an industrial dispute underSection 10 read with Section (2A) of the Act. The remedy available to them byseeking reference of the dispute will have to be treated as an effective alternativeremedy in view of the judgments of the Supreme Court in Premier AutomobilesLtd., v. Kamlakar Shantaram Wadke and others and The Rajasthan State RoadTransport Corporation v. Krishna Kant & others.

For the reasons mentioned above, the appeal is allowed. The order under challengeis set aside and the case is remanded to the learned Single Judge for freshadjudication of the writ petition. The parties shall be free to reiterate the points takenby them in their pleadings. They shall also be free to raise other points in support oftheir respective cases.

G.S. SINGHVI, CJ

Date: 27[th] December, 2005

Pnb / vtv / svs

R. SUBHASH REDDY,J