The Hindu : Tamil Nadu News : Court orders reinstatement with back wages

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Thursday, Sep 09, 2004

Tamil Nadu

Tamil Nadu

Court orders reinstatement with back wages

By Our Staff Reporter

CHENNAI, SEPT. 8. The Madras High Court today described as "misadventure" a September 2002 order abolishing the posts of about 10,000 road workers and ordered their reinstatement with back wages and continuity in service.

(About 10,000 workers, recruited in two batches in 1997, were displaced by a Government Order on September 5, 2002. The present batch of writ petitions challenged an April 16, 2003 State Administrative Tribunal order, upholding the abolition of posts. The tribunal held that it could not interfere with the "policy decision of the Government.")

A Division Bench, comprising Justice Prafulla Kumar Misra and Justice F.M. Ibrahim Kalifulla, in its 103-page order, said: "As the Government Order is wholly illegal and invalid in law, the consequent orders of termination issued to 9,813 gang mazdoors are set aside. The termination is gross violation of the provisions of the Industrial Disputes Act... Having regard to the blatant violation of the provisions of the Act by the State Government, which should have acted as a model employer, we have no hesitation in holding that all the employees would be entitled for not only reinstatement but all back wages, continuity of service and other attendant benefits."

However, keeping in mind the enormous financial impact the payment of full back wages would have on the exchequer, the judges directed the Government to pay wages only for six months, the equivalent of one-fourth of the entire back wages. If the Government paid salaries for six months to the dismissed mazdoors as per an earlier Division Bench order, the payment could be adjusted now.

Purview of the Act

Firstly, the judges ruled that maintenance of road and allied activities carried out by the dismissed gang mazdoors were a "manufacturing process," thereby bringing it within the ambit of the definition of industrial establishment as defined in the ID Act." The provisions of the Act were applicable to Tamil Nadu Highways department. Also, the gang mazdoors were "workmen" as defined in the Act.

The judges said once the Government took the stand that the provisions of the Act would not apply and that non-compliance with the various stipulations in Chapter V-B of Section 25(F) of the ID Act also could not be disputed, "it will have to be inevitably held that non-employment of the entire lot of gang mazdoors, which fall within the definition of Section 2(oo) of the Act, was wholly illegal."

As for the government submission that the appointment and exemption clause invoked for these appointments itself was illegal and a nullity, the judges said, "the Government, in its desperate attempt to sustain the wholesale abolition of mazdoors, has taken an extreme stand of disowning its own orders... At the time of appointment, every statutory requirement was noted and wherever exemption was required it was also issued by validly invoking the relevant provisions. We are unable to find fault with the manner of recruitment of gang mazdoors through GOs dated May 29, 1997 and August 19, 1997."

Salary bill

Pointing out that the official reason given for the abolition of these posts was an entailment of an expenditure of about Rs. 75 crores and that it could be avoided if road maintenance jobs were entrusted to private contractors, the judges said, "if the rise in the salary component was due to spiralling prices of commodities and the consequent revision of wages, the gang mazdoors cannot be blamed. It can never be held that there was any lack of performance by the mazdoors in the course of discharge of their duties," warranting unceremonial dispensing with their services.

They said all the directions should be complied with by the Government within three months. The State was also given leave to prefer a special leave petition before the Supreme Court.

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