Partly allowed

The Deputy Director v. P.Venkatesan,S/o.Pachaiyappan

Madras HC5 Jul 2023WP/7250/2016

Case brief

AI extract

What is this about?

The High Court held that while outsourced employees are not entitled to reinstatement, compensation is payable. It dismissed theHealth Department's writ petitions challenging the Labour Court's award and directed payment of compensation to the sacked workers.

What did the court decide?

Writ petitions filed by Health Department dismissed; Health Department directed to pay compensation per Labour Court award with 6% interest.

The Deputy Director Vs P.Venkatesan,S/o.Pachai… — Pension and Retirement Benefits | Madras HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 05.07.2023

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CORAM :

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THE HONOURABLE MR. JUSTICE M. DHANDAPANI

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W.P.Nos.7250 and 7251 of 2016 and 14922 and 14923 of 2017 and WMP.Nos.6506 & 6507 of 2016 and 10010 & 10011 of 2022

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W.P.No.7250 of 2016:

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The Deputy Director, Health Services, Tiruvannamalai.

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... Petitioner Vs.

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P.Venkatesan

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The Presiding Officer, Principal Labour Court, Vellore. ....Respondents

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Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records in connection with the order dated 27.10.2015 made in I.D. No. 59 of 2015 on the file of the Principal Labour Court Vellore the 2nd respondent herein and quash the same.

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W.P.No.7251 of 2016:

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The Deputy Director, Health Services, Tiruvannamalai. ... Petitioner Vs.

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https://www.mhc.tn.gov.in/judis

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C.Kuttiyappan

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The Presiding Officer, Principal Labour Court, Vellore.

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....Respondents

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Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records in connection with the order dated 27.10.2015 made in I.D. No. 60 of 2015 on the file of the Principal Labour Court Vellore the 2nd respondent herein and quash the same.

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W.P.No.14922 of 2017:

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P.Venkatesan

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... Petitioner Vs. 1. The Deputy Director, Health Services, Tiruvannamalai.

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The Presiding Officer, Principal Labour Court, Vellore.

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....Respondents

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compensation of Rs. 3, 50, 000/- and further direct the respondent to reinstatement me in service in the post of sweeper in the Respondents Organization with continuity of service from the date of my termination from 01.11.2012 and with all other attendant benefits.

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W.P.No.14923 of 2017:

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C.Kuttiappan ... Petitioner Vs. 1. The Deputy Director, Health Services, Tiruvannamalai.

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The Presiding Officer, Principal Labour Court, Vellore.

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....Respondents

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Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records connected with the orders passed by the second respondent in I.D.No.60 of 2015 DT.27.10.2015 and quash the same in so far as it has denied my reinstatement with back wages and continuity of service and awarded only a lumpsum compensation of Rs.4,00,000/- and further direct the respondent to reinstatement me in service in the post of sweeper in the Respondents Organization with continuity of service from the date of my termination from 01.11.2012 and with all other attendant benefits.

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https://www.mhc.tn.gov.in/judis

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For Petitioner	:	Mr.S.John T.Raja Singh, AGP
		in W.P.Nos.7250 & 7251 of 2016 Mr.Balan Haridass in W.P.Nos.14922 & 14923 of 2017
For Respondents	:	Mr.Balan Haridass R1
		in W.P.Nos.7250 and 7251 of 2016
		Mr.S.John T.Raja Singh, AGP For R1
		in W.P.Nos.14922 & 14923 of 2017

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COMMON ORDER

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Since the issue involved in all the cases are one and the same and

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hence, all the writ petitions are disposed of by way of this common order.

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2. W.P.Nos.7250 of 7251 of 2016 have been filed seeking to quash the

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order dated 27.10.2015 made in I.D. Nos. 59 and 60 of 2015 respectively on the file of the Principal Labour Court, Vellore/ 2nd respondent.

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3. W.P.Nos.14922 and 14923 of 2017 have been filed seeking to quash

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the orders passed by the second respondent in I.D.No.59 and 60 of 2015 respectively dated .27.10.2015 and further direct the respondent to reinstatement in service in the post of sweeper in the Respondents Organization with continuity of service from the date of my termination from 01.11.2012 and with all other attendant benefits.

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4. For the sake of convenience, the petitioners in W.P.Nos.7250 and

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7251 of 2016 are referred to as ''Health Department'' and the petitioners in W.P.Nos.14922 and 14923 of 2017 are referred to as ''Employees''.

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5. The learned counsel for the Health Department submitted that the Health Department issued a Government Order in GO.Ms.No.212 Personnel and Administrative Reforms (P) Department dated 29.11.2011 has completely banned certain categories of posts such as Teachers, Doctors and Police Constables. In GO.Ms.No.49 Personnel and Administrative Reforms (P) Department (F) dated 14.05.2002, the Government directed that all D Group staff like sweeper, scavenger, cleaner, garderner, office assistant may progressively outsourced and entrusted on contract basis. In G.O.(2D) No.15 Health and Family Welfare (C2) Department dated 22.03.2005, the Government permitted the Head of Department to fill the categories of Paramedical staff by outsourcing through the agencies at the rates finalised by the Tamil Nadu Medical service corporation.

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6. The learned counsel for the Health Department submitted that based on the above, the Director of Public Health and Preventive Medicine, Chennai

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entered into an agreement with Soceity for Education and Women

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Development, Madurai for supply of manpower in the category of sweeper. Based on the recommendation of the agency, the employees joined a sweeper at the Primary Health Centre, Vettavalam. The wages of the employees was paid through the saud oursourcing unit till the date of retrenchment. The first respondent is not an industrial worker and he cannot claim relief under the provisions of the Industrial Disputes Act.

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7. The learned counsel for the Health Department submitted that the outsourced employees were not appointed by the Government but by oursourcing agencies and the department was not aware of their qualification and no communal roaster was followed. Hence the Government instructed all the heads of the departments to implement the orders issued in G.O.ms.No.59 Health and Family Welfare Department (C2) Department dated 16.02.2008 and to terminate all the outsourced employees in phased manner by a maximum spread over period of one year and hence, the employees was terminated from service as per the orders of the Director of Public Health and Preventive Medicine, Chennai vide letter dated 13.08.2012. At this stage, the first respondent raised an Industrial Dispute in ID.No.59/2015 before the

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Principal Labour Court, Vellore. The Principal Labour Court, Vellore, vide order dated 27.10.2015, partly allowed the ID with a direction to pay the lumpsum compensation of Rs.3,50,000/- to the employees herein within a period of one month, failing which, it shall carry interest at the rate of 9% per annum from the date of award.

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8. The learned counsel for the Health Department further submitted that the Principal Labour Court, Vellore has not considered the fact that the employees are an outsourced employees and they were not sponsored by employment exchange and was engaged through private agency. Hence, the Health Department have filed Writ Petition Nos.7250 and 7251 of 2016 challenging the impugned order dated 27.10.2015 in ID. Nos.59 and 60 of 2015.

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9. The learned counsel for the employees submitted that the employees were appointed as drivers in the Health Department at Thiruvannamalai Zone and their appointment was an outsourcing through a contractor by name Society for Education and Women Development, Madurai and M/s.Shiva Industrial Security Agency respectively and the contract was terminated on

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30.06.2006. However, the employees continued to work in the same

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organization but under the direct supervision with pay and allowance paid by the Health Department from 01.07.2006 and the employees were paid a monthly consolidated wages. The Government has issued Government order in GO.Ms.No.59 Health and Family Welfare Department dated 16.02.2008, the Health Department terminated the outsourced employees on 31.10.2012 after rendering 6 years and 4 months continues servic from 01.07.2006 to 31.10.2012 excluding the period of oursourcing. Therefore, the employees raised disputes under Section 2A(2) of ID Act before the Labour Court, Vellore in ID. No.60 of 2015 for their re-instatement with back wages. The Court passed an award dated 27.10.2015 directed to pay a lump sum compensation of Rs.4,00,000/- instead of ordering re-instatement. Hence, the Health Department have filed Writ Petition Nos.14922 and 14923 of 2017 challenging the impugned order dated 27.10.2015 in ID. Nos.59 and 60 of 2015.

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10. Heard the learned counsel for the employees and the learned Counsel for the Health Department and perused the materials available on record.

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11.

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The facts of the case are not in dispute. As narrated supra, the Health Department appointed the employees from the outsourcing agency based on the Government orders and thereafter, the employees was terminated from their service. Even after the termination, the Health Department utilized the service of the employees and they disbursed the wages to the employees through METC. Further the Health Department issued a Identity cards to the employees and transfer orders were also passed. The said facts were elaborately discussed by the Labour Court and the wages receipts was marked as Ex.W4 and the appointment orders were also marked as Exs.W9 to W15, which makes it clear that the Health Department have utilized the employees for nearly seven years.

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12. Further, the Health Department has not denied that the employees were issued termination orders, which itself shows that there was direct employment between the employees and Health Department. Hence, the writ petitions filed by the Health Department is misconceived and the same is liable to be dismissed.

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13. Now the question arises in these cases is whether the employees are

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entitled for compensation or reinstatement. In the present case, the employees have not recruited either Employment Exchange or though Tamil Nadu Public Service Commission. Admittedly, the employees were appointed from the outsourcing agencies. Hence, the employees have no right for reinstatement and therefore, the reinstatement does not arise. However, the Labour Court has rightly passed an award to pay compensation to the employees. Hence, the writ petitions filed by the employees are dismissed.

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14. In view of the above discussion, all the writ petitions are dismissed.

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No costs. However, the Health Department is directed to pay the compensation as ordered by the Labour Court to the employment along with 6% interest from the date of award to till date within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed.

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05.07.2023

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Index : Yes / No Speaking order / Non speaking order Netrual Citation Case : Yes / No rli

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The Deputy Director, Health Services, Tiruvannamalai.

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The Presiding Officer, Principal Labour Court, Vellore.

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https://www.mhc.tn.gov.in/judis 11/12

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M.DHANDAPANI, J.

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rli

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W.P.Nos.7250 & 7251 of 2016 and W.P.Nos. 14922 & 14923 of 2017

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05.07.2023

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The Deputy Director v. P.Venkatesan,S/o.Pachaiyappan

Case brief

What is this about?

What did the court decide?

The Deputy Director v. P.Venkatesan,S/o.Pachaiyappan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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