(Prayer : This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorari calling for the records relating to the common award dated 11.10.2004 made in I.D.Nos.887/1998, 888/1998, 64/1999, 65/1999, 108/2001, 110/2001 and 312/2001 passed by the first respondent, and quash the same insofar as it relates to the petitioners and consequently direct the second respondent to reinstate the petitioners with continuity of service, backwages and all other attendant benefits.

COMMON ORDER:

The prayer in all these writ petitions are to quash the common award dated 11.10.2004 passed in I.D.Nos.887/1998, 888/1998, 889/1998, 64/1999, 65/1999, 108/2001, 110/2001 and 312/2001.

2. The eight individual workmen, engaged in the second respondent management on daily wage basis, have jointly filed W.P.No.3211 of 2006 challenging the award of the Labour Court dated 11.10.2004 denying reinstatement with continuity of service and backwages, whereas W.P.Nos.10711 to 10718 of 2006 are filed by the management against the respective workman so far as the grant of compensation at the rate of Rs.25,000/- to them.

3. The issue arises for consideration in all these writ petitions being one and the same and common award is passed by the Labour Court, all these writ petitions are disposed of by this common order.

4. The case of the workmen are, the Erode District Co-Operative Milk Producers Union (hereinafter called the Management) is having Dairy Plant at Chithoor and Milk Chilling Centres at Sankarandampalayam, Sathyamangalam and Thalavadi. The Management is collecting and processing milk and manufacturing bye-products such as cream, butter, ghee and milk powder. The workmen were employed as workers by the management on the following dates and the daily wages paid to them are as follows:

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Workmen/Petitioner Date of joining Daily wage Date of oral

in W.P.3211/2006 service paid termination

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1st Petitioner 20.7.1987 Rs.22/- 01.01.1994

2nd Petitioner 4.9.1985 Rs.22/- 01.11.1994

3rd Petitioner 23.7.1987 Rs.22/- 01.01.1994

4th Petitioner 17.1.1986 Rs.22/- 01.11.1994

5th Petitioner 15.6.1983 Rs.40/- 01.11.1994

6th Petitioner 31.12.1988 Rs.40/- 13.10.1994

7th Petitioner 3.01.1986 Rs.22/- 01.10.1994

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According to the workmen, they have discharged their duties without giving room for any complaint, however, their services were not regularised and therefore they were forced to join in the Workers Union. The management also failed to pay the statutory benefits and through the Union, the workmen demanded reglarisation of their services and thereafter the management orally terminated the workmen on the dates mentioned above. The workmen demanded reinstatement and the said demand having not been acceded to, they have raised disputes before the Labour Officer, Erode. The conciliation proceedings having failed, failure report was furnished and thereafter respective industrial dispute was raised and those industrial disputes were tried by the 1st respondent/Labour Court together and the impugned common award was passed on 11.10.2004.

5. The first and second petitioners in W.P.No.3211 of 2006 were examined as Pws.1 and 2 before the Labour Court and Exs.P-1 and P-2 were marked. The management neither examined any witness nor marked any document on their behalf.

6. Petitioners 1 and 2 viz., Pws.1 and 2 deposed before the Labour Court to the effect that the management wantonly denied employment beyond 19 days in a month to ensure that the workmen could not complete 240 days of employment in a year. The contention of the management was that the workmen were not sponsored through Employment Exchange at the time of initial engagement; that they have not worked for 240 days in a year; and that, the workmen abandoned their services on their own. The management also denied the alleged oral termination.

7. The Labour Court came to the conclusion that the workmen were employed as casual labourers and in spite of giving time to produce the wage register and attendance register, the same were not produced by the management. As far as the contention that the workmen have abandoned their service, no show cause notice was issued and therefore the said plea cannot be accepted and the Labour Court found that the non-employment of the workmen are not justified. However, the Labour Court held that the appointment of these workmen were irregular and they also had not completed 240 days of employment in a year and there was delay in raising the dispute and therefore they are not entitled to get reinstatement and in lieu of reinstatement ordered a compensation of Rs.25,000/- each to be paid within three months. The said award of the Labour Court is challenged by both the workmen and management as stated supra.

8. The learned counsel for the workmen submitted that the management has followed unfair labour practice by giving artificial break in service based on the instruction given by the Manager (Production) and a copy of the instruction given by the said Officer through office order made in No.G.76/D1/89/CL, dated 17.3.1989 is also produced in support of his contention wherein it is stated that while engaging daily paid workers the officials must see that persons who have completed 480 days as on 31.1.1989 within 24 calendar months shall be continuously engaged and others shall not be engaged continuously for 240 days in 12 months period. The said direction which was issued confidentially was directed to be strictly followed by all concerned and therefore the management purposely denied employment to these workmen and others continuously for 240 days within 12 months to see that they cannot claim any benefit under the Labour Welfare Legislations. The learned counsel also submitted that the workmen having been employed on daily wage basis, that too as unskilled labourers, sponsorship through employment exchange is not mandatory under Section 3 of the Employment Exchange Compulsory Notification Act, 1962. The learned Counsel also submitted that many persons employed after the engagement of these workmen were granted absorption with time scale of pay and the action of the management is discriminatory and arbitrary.

9. The learned counsel for the management on the other hand submitted that the workmen in these writ petitions having not been sponsored through employment exchange, they cannot demand regularisation, particularly when they have not completed 240 days of employment in 12 calendar months. The learned counsel further submitted that these workmen were engaged in a seasonal nature of work by the management and as on today no vacancy is available to employ these workmen and therefore the writ petition filed by the workmen challenging the award of the Labour Court is to be dismissed. The learned counsel further submitted that the workmen having failed to establish their right to get reinstatement and other service benefits, the Labour Court is not justified in ordering compensation of Rs.25,000/- to each of these workmen and therefore the impugned award so far as ordering compensation is bound to be set aside and the writ petitions filed by the management may be allowed.

10. I have considered the rival submissions of the learned counsel for the Workmen as well as Management.

11. The Workmen were employed by the management from 20.7.1987, 4.9.1985, 23.7.1987, 17.1.1985, 15.6.1983, 31.12.1988 and 3.1.1986 respectively till January to October, 1994 for 19 days in a month is not in dispute. A general direction was issued by the Manager (Production) on 17.3.1989, the translated version of which reads as follows:

"R.C.No.76/D1/89 CONFIDENTIAL

Dated: 17.3.89

OFFICE ORDER

Sub: Establishment Erode Milk Dairy

Appointing persons on daily wages reg.

Ref: This office note dated 2.3.89 (Letter in the

even number)

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As requested in the letter cited under reference, it is requested that the officers, under mentioned, while appointing persons on daily wages in respect of work related to their section, shall strictly adhere to the rules and regulations, mentioned below. It is informed that if any officer fail to do so, the respective officer shall be held fully responsible for the consequences resulted thereto.

1. None other than those who worked for 480 days in 24 months as on 31.1.89 shall be allowed to work for 240 days continuously in 12 months.

2. For example, if an individual attended the work for 258 days in the calendar year 1988, he shall be permitted to work by ensuring that the total number of working days shall not exceed 480 days, inclusive of the working days in the next 12 months.

3. The rules and regulations shall be strictly adhered to.

4. The aforesaid rules and regulations shall be certified and signed by the concerned officers in the monthly salary slip of the persons on daily wages and also to be certified that the aforesaid rules and regulations were not violated.

Sd/- xxxxxxxx

Manager (Production)"

According to the workmen, relying on the said circular issued, these workmen are not given continuous employment and the said action of the management is definitely an unfair Labour Practice. It is the case of the workmen, if the number of public holidays and sundays are added as employment period, they will be definitely completing 240 days within a period of 12 calendar months. The workmen have issued notice to the management to furnish attendance and wage registers, which were not furnished by the management. Thus, the findings given by the Labour Court holding that these workmen served for more than 240 days in a year cannot be treated as perverse finding.

12. The contention that the workmen were not sponsored through employment exchange while they were initially engaged cannot be treated as a valid defence of the management in view of Section 3 of the Employment Exchange Compulsory Notification Act, 1962, which clearly states that the post which are coming under the unskilled category can be filled up without sponsorship through employment exchange. The learned counsel for the Workmen submitted that several persons appointed after these workmen, though not sponsored through employment exchange, were granted absorption as permanent workmen and they are serving as on date. The Labour Court gave a finding that the workmen have completed 240 days in a year and rejected the relief by holding that their appointments were irregular and ordered compensation of Rs.25,000/- to each of the workmen.

13. The learned counsel for the workmen submitted that the management having engaged other persons after these workmen, is bound to engage these workmen also. In answer to the said submission the learned counsel for the management submitted that now there is no vacancy as per the cadre strength fixed. The same is not disputed by the learned counsel for the workmen. As the workmen have approached the Labour Court with considerable delay of four years and they are not in employment all these years and their earlier employment itself is on daily wage basis and no vacancy is available as on date, they are not entitled to get reinstatement and continuity of service or backwages. However these workmen are entitled to get benefit under Section 25H of the Industrial Disputes Act, 1947, which reads as follows:

"25-H. Re-employment of retrenched workmen. Where any workmen are retrenched and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."

14. In view of the above findings, the impugned award dated 11.10.2004 is set aside and the management is directed to engage these workmen in accordance with Section 25H of the Industrial Disputes Act, 1947, while filling up the vacancy/vacancies that may arise in future. It is made clear that the management cannot employ any other person before considering the claim of these workmen as they are having a right to get preference under Section 25H of the Industrial Disputes Act, 1947. Since relief to that extend is granted now, the lumpsum payment ordered by the Labour Court need not be paid to the workmen. However, if any of the workman is willing to receive the compensation by giving up his right conferred under Section 25H of the Industrial Disputes Act, 1947, he is entitled to get Rs.25,000/- with 9% interest per annum from the date of the award till the date of payment.

The writ petitions are disposed of accordingly. No costs. Connected miscellaneous petitions are closed.