Judgment:
Judgment Pronounced by P. Sathasivam, J.
1. Tamil Nadu Civil Supplies Corporation Employees Union represented by its General Secretary and for others have filed the above writ petition seeking direction to the respondents to regularise the services of the petitioner 2 to 5 fixing their basic pay at the scale of lowest grade of employees at the lowest pay scale of the first respondent Corporation with effect from the date when they completed 480 days within the period of 24 calendar months, reckoning from their date of entry into service in the first respondent Corporation and further direct the respondents to pay the differences of amount to the aforesaid employees, working out on the basis, deducting the amount already paid to them within a reasonable time to be fixed by this Court.
2. The case of the petition is briefly stated hereunder:
The first petitioner is a registered Trade Union and has been espousing cause of the said employees who are its members for several years. The respondent, a State owned Corporation engages labourers in the godown at Gopalapuram, Chennai for the purpose of packing essential commodities, groceries and other items for distribution through its retail shops as well as 'Amudham Departmental Stores'. This process is being done from the year 1976 onwards and this activity is incidental and integral to the manufacturing activity of the respondent Corporation and is a parennial one. However, the respondent Corporation continued to engage these labourers on a daily wage basis for a very long period of time, without conferring them permanency and thereby denied the statutory welfare benefits which are extended to the permanent workmen.
3. It is further stated that the first petitioner Union on behalf of the petitioners 2 to 5 filed an application on 14.8.1982 under Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workman) Act, 1981 (hereinafter referred to as 'the Act') before the concerned authority for the purpose of securing permanency for the aforesaid four workmen. By a letter dated 28.3.1994, the respondent Corporation agreed to confer permanent status to these workmen on certain conditions. The authority under the Act held that no condition can be imposed while conferring permanency as per Section 3(1) of the Act and passed orders in D.D. is 12453 of 1992 dated 30.4.1994 and directed that the four employees involved in this case shall be made permanent with effect from the date they had completed 480 days within the period of 24 calendar months, reckoning their date of entry into service in the respondent establishment. Thereafter, the Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Gopalapuram Chennai the second respondent herein, under his proceedings in R.C.No. A9/586/93 dated 26.6.1995 conferred permanent status to the aforesaid 4 employees but without regularisation of their services on the existing system of payment of wages. In such circumstances, having no other remedy, the petitioner have approached this Court for necessary relief as stated above.
4. On behalf of the respondents, the General Manager (Administration) of the Corporation has filed a counter affidavit disputing various averments made by the petitioner. It is stated that the petitioners were employed in Mini Godown, Gopalapuram for the purpose of cleaning, Weighing/packing of Groceries. Their work is intermittent intervals and the petitioners are not engaged throughout the month or year. The respondent were paid daily wages as fixed by the District Collector from time to time. Without considering the merits of the case, the authority has passed orders on 30.4.1994 directing that the four employees involved in this case shall be made permanent with effect from the date they had completed 400 days within the period of 24 calendar months. However, in pursuance of the orders passed by the Inspector orLabour, these casual labourers were made permanent under consolidated wages as per G.O.Ms.No. 473, Labour and Employment Department dated 22.3.1990. It is further stated that if the services of the petitioners are regularised the respondent corporations has to meet with heavy financial burden and hardship to post the petitioners in the absence of sanctioned strength for regular vacancy. The respondents are not in a position to absorb these petitioners on par with regular workmen and pay wages or other benefits as claimed. With these averments, they prayed for dismissal of the writ petition.
5. In the light of the above pleadings, I have heard Mr.S. Venkataraman, learned counsel for the petitioner and Mr.V. Perumal for respondents.
6. It is the case of the petitioners that after the order of the authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status for Workmen) Act. 1981 (hereinafter referred to as 'the Act') dated 30.4.1994, the respondents ought to have regularised their services. Instead of doing so, the 2nd respondent Senior Regional Manager, Tamil Nadu Civil Supplies Corporation, Gopalapuram, in his proceedings dated 26.6.1995 conferred permanent status to the petitioners 2 to 5 without regularisation of their services on the existing system of payment of wages. This, according to the petitioners, cannot be accepted. They also relied upon an earlier decision of this Court in M. Arumugham and 27 others v. The Tamil Nadu Civil Supplies Corporation Ltd., represented by its Chairman -cum- Managing Director, Madras- 10 (A.Ps.Nos. 16001 and 16181 of 1990, dated 8.10.1996) wherein this Court, in respect of other petitions who are similar to the present petitioners, directed the respondent Corporation to absorb and regularise them in the services of the Corporation at the basic pay of the lowest grade of employees at the lowest pay scale of the Corporation with effect from the date of filling the writ petitions. Mr.S. Venkataraman, learned counsel for the petitioners very much relied on the decision referred to above. It is true that in the said decision, the petitioners who were working as casual labourers on the basis of the interim order of this Court completed the minimum period of service; accordingly in the absence of any counter affidavit filed by the Corporation, this Court had directed the respondents for regularisation of their services in the Corporation. Though it is possible to issue similar direction, since the petitioners 2 to 5 had also served more than 480 days within a period of 24 calendar months, in view of the stand of the respondent as seen from the counter affidavit as well as the various other decisions of the Supreme Court and this Court, the relief prayed for by them cannot be granted.
7. Inasmuch as there is an order of the authority under the Act dated 30.4.1994 as well as the further order of the second respondent dated 26.6.1995 conferring permanent status to petitioners 2 to 5, it is unnecessary to refer other details. In the counter affidavit, it is specifically pleaded that these petitioners were employed as labourers in the mini godown at Gopalapuram, Chennai, for the purpose of packing essential commodities,groceries and other items for distribution through its retail shops as well as 'Amudham Departmental Stores'. Their work is intermittent in character and they were employed in intermittent intervals and the petitioner are not engaged throughout the month or year. Daily wages were paid as fixed by the District Collector from time to time. They also expressed that if the services of the petitioners 2 to 5 are regularised, the respondent Corporation has to meet with heavy financial burden and hardship to post them in the absence of sanctioned strength for regular vacancies. They also pleaded that they are not in a position to absorb these petitioners on pay with regular workmen and pay wages or other benefits as claimed. In other words, it is clear from the counter affidavit that there is no sanctioned post to regularise all these petitioners, nor continuous work throughout the month of year. Now I shall consider some of the decisions on this aspect referred to by Mr. V. Perumal, learned counsel for the respondents.
8. In State of U.P. and others v. Ajay Kumar, : (1997)ILLJ1204SC , Their Lordships of the Supreme Court have expressed that in the absence of any sanctioned post, it is not possible for this Court or Tribunal to issue direction for regularisation of the persons who were not appointed through Employment Exchange. The conclusions of their Lordships is as follows:
'...The Division Bench reversed the decision of the learned Single Judge and had given directions. It is now settled legal position that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division Bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above facts is, obviously, illegal.'
9. In the case of Ram Sakthi Devi v. State of U.P., : [1997]3SCR157 Their Lordships of the Supreme Court have held that power to regularise ad hoc appointment could not be used as routine in the following manner:
'...It is mandatory for the management to 'notify to the Commission and in case the Commission is unable to recommend the selected candidates within a reasonable time, any candidate appointed on ad hoc basis will be deemed to have been appointed in substantive capacity. The recourse to Section 33-A should be made sparingly and not as a routine. If the selection 33-A route is adopted as a routine, the entire process of selection contemplated under the Act would be given a decent burial and illegal appointments would gain legitimacy, Under these circumstances, we do not mink that the counsel is right in contending that the appellant could be regularised under Section 33-A of the Regulation.'
10. In the case of Municipal Corporation v. Veera Singh Rajput, : (1998)9SCC250 , on behalf of Municipal Corporation, Billaspur it is stated that in view of the financial stringency, they are not in a position to create new postsor to regularise the respondents. In spite of the statement made by the Corporation, the High Court directed the Corporation to regularise the persons who have approached. Taking note of the submission of the Corporation viz., they are unable to create new posts and to regularise the persons who have approached, Their Lordships have made the following observation:
'3. The High Court has purported to follow the decision of this Court in State of Haryana v. Piare Singh, : (1993)IILLJ937SC . In this judgment in para 25, this Court has pointed out that before giving directions for regularisation, the Court must act with due care an caution. 'A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the affect of increasing the cadre strength of a particular service, class or category.' In this paragraph there is a discussion on several problems which can arise if wholesale regularisation is ordered. One such problem relates to irregularities in appointments. Candidates who are sought to be regularised may be neither sponsored by the employment exchange nor appointed after issuing a proper advertisement calling for applications. 'In short, it may be a back-door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices.' In the present case, the stated of the appellant-Corporation throughout has been that these daily-rated employees nave been appointed because of political consideration by the Standing Committee. After the standing Committee was superseded and Administrator was appointed, serious irregularities were discovered in these appointments. In this situation, a direction given by the High Court for regularisation of such person is not warranted. Our attention has been drawn to the observations made by this Court in Satyanarayan Sharma v. National Mineral Development Corporation Limited, : (1990)IILLJ596SC where this Court declined regularisation in a case where there were no vacancies and work was not available in the establishment. In the present case, there is no material indicating that the Work is not available. The appointments, however, are irregular and made on political considerations. There are clear government directions for reduction of establishment expenditure and a prohibition on the filing of vacant posts or creating new posts including regularisation of daily-waged employees. The order of the High Court for regularisation of such employees is not warranted. It is in the teeth of these administrative directions and cannot be sustained.'
All the above decisions of the Apex Court make it clear that in the absence of any post either under the statutory rule or by way of administrative instructions, it is not possible for this Court to issue positive direction to the respondents for regularising the services of the petitioners.
11. Mr. Perumal has also very much relied on a recent Division Bench decision of this Court reported in Tamil Nadu Civil Supplies Corporation Workers Union v. Tamil Nadu Civil Supplies Corporation, : 1997(3)CTC535 . AR. Lakshmanan, J., speaking for the Bench, after referring to the earlier decisions of the apex Court in a similar circumstance, has observed thus:
'15. It was argued by Mr. Periasamy and Mr. Perumbulavil Radhakrishnan, learned counsel that the employees who have completed 480 days of service should be considered for regularisation. We are unable to acceptthe said argument. Mere continuance and completed 480 days of service on the basis of the interim stay granted by this court is not eligible for regularisation on the ground that the seasonal employees cannot continues in service on his own right under the appointment order. Further more, the seasonal employees have no right to claim for permanent post, till they are duly selected and appointed and their appointment was not made in accordance with the rules. As rightly pointed out by the learned senior counsel, there must exist a post to appoint the employees to the post. The seasonal employees cannot make a claim for regularisation against non-existent vacancies and the regularisation of such employees amounts to a nullity and dehors the budgetary sanction.'
Before the Division Bench, the petitioners have completed 480 days of service and because of the closing down of 'Direct Purchase Centres' all of them were sent out. There also all the petitioners have completed and satisfied the minimum requirement of service, namely, 400 days in 24 calendar months. Inspite of the above factual position, the learned Judges have dismissed the writ petitions holding that without existence of a post, it is not possible to direct the Corporation to regularise those persons. The very same Civil Supplies Corporation as well as the similar employees are the parties in the case before the Division Bench.
12. No doubt, Mr. Venkataraman has brought to my notice that out of 50 persons, they had already regularised 46 persons and 4 persons, namely, the petitioners 2 to 5 alone were left out. He also submitted that even these 4 persons were sent for medical examinations. It is true that amount the 50 persons sent for medical examinations, the names of the petitioners 2 to 5 find place as item 47 to 50. However, in the light of the categorical averment in the counter affidavit as well as the law laid down by the Apex Court in the above referred decisions and the recent Division Bench decision of this Court, I do not find any acceptable reason to issue the direction as claimed by the petitioners. Consequently, the writ petition fails and the same is dismissed. No costs. It is, however, made clear that in view of the fact that the respondent Corporation has already regularised 46 persons either in pursuance of the earlier orders of this Court or by themselves, if any vacancy arises or new posts are created, the claim of the petitioners 2 to 5 may be considered and they may be given preference to others.