State Transport Employees Union vs Metro Transport Corporation Chennai Ltd.

K.P. Sivasubramaniam, J.—The petitioner, State Transport Employees Union pray for a Certiorarified Mandamus to call for the records

relating to the order dated 14.03.2001 of the respondent, to quash the same and to direct the respondent to restore the seniority of the workmen

whose names are given in the typed set from the date of their original appointment with all the consequential benefits.

The petitioner is a Registered Union under Trade Unions Act. The respondent Corporation while recruiting the Drivers on regular basis follow

various procedures. Eligible candidates are called from Employment Exchanges. Subsequently, they will be called for interview. After holding the

interview/test, the candidates will be selected, subject to their satisfying the requirements and qualifications for being appointed as regular Drivers.

After selection, the respondent will collect deposit amount including training fee. The selected candidates will then be sent for training for a period

of about two to three months. After completion of training, they will be posted in various depots/branches. The employed individuals will be initially

employed on daily rated on monthly paying basis and after completion of 240 days of service, the respondent will have to issue an order of

confirmation in terms of settlement in force. They will also be given staff numbers.

During January 2000, the respondent called for names of eligible drivers from employment exchange and the exchange sponsored about more

than 100 persons. They were called for interview by individual letters. The workmen concerned in this writ petition were also called for interview

by individual letters and they had attended the interview on various dates. They were selected in the interview and were required to appear before

the General Manager with their driving licence and other Certificates in full uniform. Accordingly, they appeared before the general manager.

Thereafter, they were directed to take training after remitting a sum of Rs. 4,500/- as training fee. After the training was over, they were also asked

to remit Rs. 5,500/- towards the share of Medical and Engineering Colleges run by Institute of Road Transport (IRT). The said amount was

collected as Fixed Deposit for Tamil Nadu Transport Development Financial Corporation. Subsequently, they were appointed and posted in

various Depots. They were also given staff number. About 108 drivers were appointed in the said process. Most of the workmen continued in

service, while the workmen concerned in the writ petition alone were denied employment on various dates commencing from 22.01.2001 to

31.01.2001, without any reason or notice. It is further stated that though their work was permanent, regular and continuous, the petitioners were

denied employment. Therefore, the workmen had submitted individual letters and requested the respondent to provide them employment

continuously. As there was no response, Union wrote letters on 01.03.2001. Union also had direct talks with the Transport Secretary, The

Government of Tamilnadu. Only after such efforts, the respondent came forward to provide employment to the workmen concerned with effect

from 14.03.2001. But to the shock of the petitioners, the workmen concerned were paid wages on daily rated basis every day and they were also

given new staff number. Thus the services of the workmen are not continued with the earlier staff number. Earlier the workmen were paid wages

once in a month. It is also seen that the present engagement was only for the period of 59 days from 14.03.2001. Hence according to the

petitioners, the impugned order is illegal, arbitrary and unjust.

In the counter filed by the respondent, it is stated that temporary vacancies normally arise when permanent employees avail leave during festive

seasons, pilgrimages, marriages, leave on medical grounds etc., or due to absenteeism. In order to effectively operate the bus services and to

maintain fleet strength in the interest of the public, the daily rated and casual employees are recruited through the Employment Exchange. They are

gradually absorbed as and when vacancies arise in permanent post. The persons whose names are given in the typed set, were engaged purely on

casual basis to meet the exigencies. They were not given appointment order nor termination order. On successful completion of over and above

240 days to be as casual labourer, depending upon the vacancies and based on regularity in duty, the good performance and accident free driving,

they are brought into daily paid category and staff numbers are allotted to them. On successful completion of 240 days as daily paid workmen

without any remarks, they will be regularised and their names will come under the category of regular monthly paid employees.

The contention that the candidates were called for the post of driver in the regular and permanent vacancies were denied. The workmen were

placed only in casual vacancies. The workmen cannot claim employment as they have no legal right or privilege to do so. The contention that they

were paid charges on daily rated basis and that they were given staff numbers are also denied. The workmen were very much informed about the

nature of work and they were informed that their employment was only casual in nature and was for 59 days only. They have not completed

continuous services as defined u/s 29-B of Industrial Disputes Act. As regards the amount collected from them, it is stated that as a matter of

procedure where the candidates have been placed in casual post or permanent post, the amount of Rs. 5,500/- is collected. If the candidates are

absorbed in the services of the Corporation, the said amount will be retained and in cases where the candidates are not absorbed, the said amount

will be refunded.

Mr. Hariparanthaman, learned counsel appearing for the petitioner Union submits that all the workmen whom the petitioner Union represents

were recruited only through proper channel and there was no back door entry. The regular process of selection was gone through and the required

test also was conducted in which the petitioners proved successful. They were selected only after the due process of selection. From each of them

a sum of Rs. 4,500/- had been collected as training fee and a sum of Rs. 5,500/- had been collected towards the share of Medical and Educational

Colleges run by the IRT. The contributions have been made and received by the respondent only at the stage where permanent vacancies have

arisen and the said vacancies have to be filled up. They were also given specific staff number. After having been selected during January 2000, they

were working regularly on daily rated monthly paid basis. However without any justification, they came to know by virtue of the order dated

14.03.2001 that they will be engaged only for a period of 59 days. While doing so, the respondent has violated the provisions of Section 25G and

25H of the Industrial Disputes Act. Even in case of retrenchment, the principle of seniority has to be followed, which has not been complied with in

the present case.

Reference is made to the judgment of the Supreme Court reported in The Manager, Government Branch Press and D.B. Beliappa 1979 I LLJ

P 156 and reliance is placed on the observation that the protection under Article 14 and 16(1) will be available even to a temporary employee, if

he had been arbitrarily discriminated.

Reference is also made to the observations of the Supreme Court made in Samishta Dube Vs. City Board, Etawah and Another, that the rule of

first come, last go"" will be applicable even in the case of daily wages employees.

The learned counsel referred to the standing order and the provisions of Section 12(3) settlement and contended that on completion of

satisfactory service of 240 days, the employees were entitled to be regularised in services.

The learned counsel for the respondent contends that the employment of the drivers depends upon the existing requirements, which fluctuate in

view of several reasons such as the permanent employees going on leave, especially during festive occasions, short term or long term leave etc.

Therefore the period for which the services of a casual driver would be required cannot be fore-seen or definite. The workmen represented by the

petitioner Union were not appointed in any regular or permanent service or vacancy. They were given duty only as casual employees. The

petitioners are the junior most and they have been stopped from duty for want of vacancy. The learned counsel further submits that excessive

appointments made by the then Managing Director and the General Manager came to light and action against them has been promptly initiated.

In this context an additional affidavit has been filed on behalf of the respondent on 01.11.2003. It is stated that the notification dated

14.03.1999 was issued for the recruitment of 100 drivers in the general category and 60 drivers from IRT. However, the officers responsible for

the recruitment process recruited 153 drivers in the general category, viz., 53 drivers in excess and in the IRT category, instead of 60 drivers, 64

drivers were recruited. Among the 53 drivers in the general category, 6 of them were terminated and one in the category of IRT. Thus, the total

excess recruitment in the general category was 57 and in the IRT category there was three excess recruitment. By the impugned order, the

respective branch managers were directed not to continue the engagement of the excess drivers. It is further stated that while discharging the

excess drivers, the principle of ""last come, first go"" was clearly adopted. It is further stated that for the alleged misconduct of excess recruitment,

proceedings have been initiated against the Managing Director, the then General Manager and General Manager, Division II and other officials on

31.03.2000 itself. The learned counsel submits that the appointment of more drivers than the sanctioned strength was an illegal action and it can be

only due to fraudulent collusion with the appointees. The petitioners who have secured employment in a fradulent manner have no legal right to be

enforced.

Learned counsel further contends that the dispute relates ultimately to individual cases of non-employment and their individual grievances in

terms of employment. The Union cannot espouse the cause of the individual workers. The issue involves consideration of the claims of each

worker such as length of service and reliance is placed on the following decisions in support of the said submission.

i)Tamilnadu Civil Supplies Corporation Employees Union and others Vs. Tamil Civil Supplies Corporation Limited 1999 (2) LLN 755

ii) T.N. Civil Supplies Corpn. Workers Union Vs. T.N. Civil Supplies Corpn. Ltd. and Others,

I have considered the submissions of both sides. On the question of maintainability, I am unable to sustain the objection. The impugned order

has been issued only in general terms and not individually. The issues which are raised for consideration is also one of general policy adopted by

the management, while effecting retrenchment. No specific objection is raised by the respondent in respect of any particular employee or a set of

employees. Reference to the two decisions cited supra is not appropriate.

The decision reported in Tamilnadu Civil Supplies Corporation Employees Union and others Vs. Tamil Civil Supplies Corporation Limited

1999 (2) LLN 755 relates to transfer of protected workmen. Dispute relating to transfer order was held to be capable of adjudication only with

reference to individual cases. Orders were issued only to individual workers.

In the case reported in T.N. Civil Supplies Corpn. Workers Union Vs. T.N. Civil Supplies Corpn. Ltd. and Others, , the Supreme Court was

concerned with the case of termination of certain employees, whom the management alleged as seasonal employees. Some of them had filed writ

petitions earlier individually and findings against them had been rendered to the effect that the establishment was a seasonal one. But the Union by

filing another petition sought to take up the cause of the workman and it was in those circumstances, the Supreme Court held that the Union''s

petition cannot be maintained. Hence, I am unable to sustain the said contentions.

I am also unable to sustain the contention that the employees had been engaged only as casual employees and that they have no right to be

absorbed into regular vacancies. The action of the respondent has to be characterised as unfair labour practice. Notices calling for selection are

issued with a call letter to the employment exchange. The fact that the petitioners were sponsored by the Employment Exchange is not at all denied.

Thereafter, the interview and test are conducted and they are appointed only on being satisfied with the appointees fulfulling the basic requirements.

Pursuant to their selection, huge amounts are collected from them as training fees and also as contribution to the institutions run by IRT. Such

demand not only result in financial stress on the workers, but also gives a definite hope that they are being appointed in regular service. The only

requirement is that they have to put in the required number of minimum years of service and satisfactorily discharge their duties without any blemish

during the period of 240 days, which is fixed as the minimum required period for regularisation into service. A perusal of the agreement u/s 12(3)

discloses that on completion of 240 days of satisfactory services, they are entitled to be regularised in service.

The contention on behalf of the respondent that the Corporation is prepared to refund the amount collected from them towards the educational

institutions run by IRT is not only improper but also does not satisfactorily disclose the real characteristics of the employment. Therefore, I am

inclined to hold that the appointments thus made have to be considered for filling up the regular vacancies. The action of the respondent in limiting

the number of working days to 59 days in an artificial manner cannot at all be appreciated. It is very unfortunate that public institutions like the

respondent should indulge in actions which amount to clear unfair labour practice. It is a matter of regret that the policy of hiring and firing is being

practised by public bodies and state owned Corporations.

But a further contention which is raised on behalf of the respondent tends to reverse the entire complexion of the dispute namely that excessive

appointments had been made over and above the notified vacancies which were alone sought to be filled up. Collusion and fraud being alleged, if

proved, would vitiate the selection. The facts stated and the figures given in the additional counter of the respondent regarding the excessive

recruitment are not disputed by the petitioner Union and hence, this Court has to proceed on the premise that the allegation that a total number of

about 53 drivers had been recruited in excess is true. At present about 45 persons are stated to fall under the category of excessive recruitment.

The above stated facts should normally result in vitiating the entire selection and the entire set of employees have to be directed to be

terminated. It cannot lie in the mouth of any employee to claim regularisation not withstanding any fraudulent collusion for securing employment in

an arbitrary manner. But the further difficulty in this context is that it is not possible to specifically pin-point or to identify as to who are those

specific individuals/appointees who could be accused of having actually colluded with the officials. Therefore, while terminating the services of the

employees on the ground of excess recruitment the principle of ""Last come, first go"" has to be adopted. According to the respondents, the ousting

orders had been issued strictly in conformity with the said principle.

Learned counsel for the petitioner however states that the excuse of excess recruitment as put forth by the respondent is aimed only to replace

the petitioners with some other individuals of their own choice in an arbitrary manner, even though the petitioners are qualified and had been

selected in a proper manner through employment exchange. Learned counsel relies on the Performance Report of the Metropolitan Transport

Corporation Limited, Chennai for the month of May 2001, which will be dealt with below.

I am inclined to agree with the contention of the learned counsel for the petitioner. As regards the employees who are rendered liable for

ousting as a result of excessive recruitment, their right to be considered for filling up subsequent vacancies cannot be denied. The Performance

Report of the Corporation relating to the Month of May 2001 analyses the various causes resulting in loss of kilometre. Those several factors are

enlisted. It is reported that there was a loss of 11,06,826/- kms for want of crew alone during the month of May 2001. For the year 2001, upto

the month of May the total loss relating for want of crew is reported 14,24,167 kms. Therefore the contention that the Corporation is not required

to employ any more persons cannot at all be sustained. When the loss is admittedly due to the reason of lack of crew, no worthwhile administration

can refuse to recruit sufficient number of crew contending either that there are no sanctioned vacancies or that there is a ban for fresh recruitment.

Both reasons have to be stated only to be rejected. Sanction of cadre strength has to be properly structured according to the requirements. The

administration cannot artificially and unrealistically keep down the sanctioned strength, ignoring the actual requirements. Bar of fresh recruitment

cannot also be cited in the case of transport services, which is an essential service or to deny the lawful rights of an aggrieved employee.

Therefore, when a clear case is made out for recruiting more number of persons, there is no justification to refuse to employ the petitioners

unless and otherwise any one of them is found to be actually involved in the illegal action of excess recruitment, as stated above. It is also seen that

in W.M.P.No.12666 of 2001 by order dated 05.10.2001 interim stay was granted in favour of the petitioner union and the same has also been

made absolute and hence the petitioners appear to be continuing in service.

In the above background, I am inclined pass the following order.

i) The petitioners shall continue in service and be regularised in service in accordance with the service regulations, settlement and standing orders

applicable as between the parties.

ii) Only such of those petitioners who are actually found guilty of any collusion, or fraud in the matter of excess recruitment (as contended by the

management), if any, shall be liable to be terminated from service and they shall not be entitled to the benefits of this order.

iii) The seniority of the respective workmen shall be fixed on the basis of date of joining in service.

The writ petition is ordered subject to the above observations. No costs.