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2005 Supreme(Mad) 1488
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.P. SIVASUBRAMANIAM
K.Narayanan & Others - Appellant
Versus
Indian Airlines Limited (Southern Region) & Others - Respondents
W.P.No.40768 of 2002 and W.P.Nos.7822 and 7908 of 2003
Decided On : 05 September 2005
The main legal point established in the judgment is the duty of the respondent under Section 25-H of the Industrial Disputes Act to give priority and permanent employment to ex-casual drivers, and the unfair labor practices of the respondent in overlooking the preferential claim of casual employees.
Headnote:
Industrial Disputes Act - Employment Notice No.6 of 2001 - Section 25-H of the Industrial Disputes Act - Summary of Acts and Sections: The court discussed the unfair labor practices and the rights of casual workers recognized by the courts, emphasizing the provisions of Section 25-H of the Industrial Disputes Act. The judgment highlighted the duty of the respondent under Section 25-H to give priority and permanent employment to ex-casual drivers. The court also emphasized the need for preference to be given to casuals who had been selected in earlier tests, as recognized in previous judgments. The judgment also discussed the issue of prolonged engagement of casual employees without attempts to regularize their services, which was deprecated by the courts as unfair labor practice.
Fact of the Case:
The three writ petitions involved three erstwhile casual employees/Drivers who were working under Indian Airlines and were aggrieved by their non-selection and appointment as regular Drivers. The petitioners claimed that they were qualified and experienced drivers who had been promised priority and permanent employment by the Airlines. The Airlines, on the other hand, argued that the petitioners, as casual employees, had no right to claim any preference or regularisation of service contrary to the rules.
Finding of the Court:
The court found that the petitioners had been unjustly treated, emphasizing the duty of the respondent under Section 25-H of the Industrial Disputes Act to give priority and permanent employment to ex-casual drivers. The court also found that the respondent had overlooked the preferential claim of casual employees, which goes against the law of the land. The court held that the overlooking of the petitioner's seniority as a casual employee and not giving any weightage for his experience as a casual employee was unjust and cannot be sustained. However, the court did not interfere with the appointments already made but ordered the appointment of the petitioner with continuity of service from the date when orders of appointment were issued to the respondents, without back-wages.
Issues: The issues involved the unfair treatment of casual employees, the duty of the respondent under Section 25-H of the Industrial Disputes Act, and the preferential claim of casual employees in the matter of selection for vacancies in the sanctioned posts.
Ratio Decidendi: The court's decision was based on the duty of the respondent under Section 25-H of the Industrial Disputes Act to give priority and permanent employment to ex-casual drivers, the unfair labor practices of the respondent in overlooking the preferential claim of casual employees, and the unjust treatment of the petitioner in not giving any weightage for his experience as a casual employee.
Final Decision: The court dismissed two writ petitions and allowed one. The petitioner was ordered to be appointed with continuity of service from the date when orders of appointment were issued to the respondents, without back-wages. The court also clarified that the benefit of the order shall not be available to any other similarly placed individuals by filing fresh writ petitions, as they had not approached the Court at the proper time. No costs were awarded.
(PRAYER: W.P.No.40768 of 2002 is filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus calling for the records of the first respondent culminating in the impugned notice of the first respondent being Employment Notice No.6 of 2001 dated 28.9.2001, bearing reference: MPE/DR/DVR/2001/2154, quash the same and direct the first respondent to give employment as Driver (MT) to the writ petitioner inter-alia by adhering to Section 25-H of the Industrial Disputes Act, 1947.
W.P.No.7822 of 2003 is filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus calling for the records of the first respondent culminating in the impugned order of the first respondent dated 17.2.2003 bearing reference: MPE/DR/535, quash the same and direct the first respondent to give employment to the petitioner as Driver (MT) at Chennai pursuant to Employment Notice No.6 of 2001 dated 28.9.2001 bearing reference: MPE/DR/DVR/2001/2154.
W.P.No.7908 of 2003 is filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus calling for the records of the first respondent culminating in the impugned order of the first respondent dated 17.2.2003 bearing reference: MPE/DR/534, quash the same and direct the first respondent to give employment to the petitioner as Driver (MT) at Chennai pursuant to Employment Notice No.6 of 2001 dated 28.9.2001 bearing reference: MPE/DR/DVR/2001/2154.)
In these three writ petitions, three erstwhile casual employees/Drivers who were working under the first respondent Indian Airlines (I.A.) are aggrieved by their non-selection and appointment as regular Drivers.
2. In W.P.No.40768 of 2002, the petitioner states that he is a qualified automobile driver having obtained a valid driving licence in the year 1985. Subsequently, he obtained endorsement to drive heavy vehicles from the year 1991. He has been continuously working as a driver with good experience. He was also working as a casual driver with the first respondent on and from 18.11.1995 to 23.3.2001. The practice adopted by Indian Airlines was to engage casuals for a maximum period of 180 days and give them an artificial break when they were about to complete 180 days. The said practice was adopted for the purpose of depriving the benefits of an employee becoming permanent. Though there are large number of vacancies, the Airlines was adopting the practice of maintaining a list of casuals. Such method is adopted only to avoid benefits due to permanent employees. The petitioner was serving the Airlines sincerely and faithfully for about eleven years. During the period when he was kept out of job, he was doing regular work in private transports as detailed in the affidavit.
3. The Airlines was repeatedly promising that persons who have been working as casuals will be given priority and permanent employment as and when there was recruitment. It was the statutory duty of the respondent under Section 25-H of the Industrial Disputes Act to do so. By Employment Notice No.22 of 1997 dated 15.9.1997, applications were called for from ex-casual drivers for the post of driver. By letter dated 28.2.1998, he was called for trade test/interview on 23.3.1998. He attended the test and interview and he was selected and empanelled. However, though he passed the trade test and interview and empanelled as Sl.No.24, as a result of a simultaneous issue of employment notice calling for applications from the general category, he was not employed as a permanent driver.
4. Thereafter, the Airlines issued another employment notice No.6 of 2001 dated 28.9.2001 for the same post of driver. Though the notice contemplates relaxation of age for those who had worked as casual drivers, there was no mention of any priority to such ex-casual drivers. On enquiry, the petitioner was informed that priority for ex-casuals will be given at the time of the interview. The petitioner beli
