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J.PILAVENDRA THILAGARAJ versus THE MANAGEMENT OF

High Court of Madras

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J.Pilavendra Thilagaraj v. The Management of - WRIT PETITION (MD) Nos.4304 of 2007 [2007] RD-TN 2485 (25 July 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 25/07/2007

CORAM:

THE HONOURABLE MR. JUSTICE K.CHANDRU

WRIT PETITION (MD) Nos.4304 of 2007

WRIT PETITION (MD) Nos.4305 to 4313, 4316 to 4325, 4326 to 4335, 4441 to 4450, 4451 to 4460, 5701 to 5707 of 2007

and

M.P.(MD)No.1 of 2007 in all the Writ Petitions for injunction W.P.(MD)No.4304 of 2007

J.Pilavendra Thilagaraj .. Petitioner vs.

The Management of

Tamil Nadu State Transport Corporation

(Kumbakonam) Ltd.,

Kumbakonam Region,

Rep. by its Managing Director,

Kumbakonam. .. Respondent Writ Petition (MD) No.4304 of 2007 filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to re-employ the petitioner forthwith as Conductor in the existing vacancies as per the Section 25-H of the I.D.Act and as per G.O.Ms.No.41 Transport (C.1) Department dated 13.7.06 before appointing any new person as Conductor either by direct recruitment or otherwise.

In WRIT PETITION (MD) Nos.4304 to 4313, 4316 to 4325, 4326 to 4335, 4441 to 4450, 4451 to 4460 of 2007

For petitioner .... Mr. S.Arunachalam For respondent .... Mr. S.Singaravelan W.P.(MD)No.5701 of 2007

C. Natarajan .. Petitioner vs

1. The Secretary to

Government of Tamil Nadu,

Transport & Highways Dept.,

Fort St.George,

Chennai - 600 009.

2. The Managing Director,

Tamil Nadu State,

Transport Corporation Ltd.,

Madurai Division - III,

Madurai.

3. The General Manager,

Tamil Nadu State,

Transport Corporation Ltd.,

Madurai Division - III,

Nagercoil. .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to appoint the petitioner for the post of driver in the third respondent corporation based on the interview conducted by the third respondent on 24.2.2007 as per the order passed in W.P.No.36801 of 2005 dated 9.12.2005.

In W.P.(MD) Nos. 5701 to 5707 of 2007 For petitioners : Mr. Silambannan, Senior Counsel

for Mr. C.T.Perumal For respondents : Mr. R.Singaravelan :COMMON ORDER



Heard Mr. S.Arunachalam, learned counsel for the petitioners in W.P.(MD)Nos.4304 to 4313, 4316 to 4325, 4326 to 4335, 4441 to 4450, 4451 to 4460, and Mr. Silambannan, learned Senior Counsel for Mr. C.T.Perumal, learned counsel for the petitioners in W.P.(MD)Nos.5701 to 5707 of 2007 and Mr. R.Singaravelan taking notice for the respondents and have perused the records.

2. The prayer in the Writ Petitions represented by Mr.S.Arunachalam is for a direction to the respondent to re-employ the petitioners forthwith as Conductors in the existing vacancies as per Section 25-H of the I.D.Act and as per G.O.Ms.No.41, Transport Department, dated 13.7.2006 before appointing any new persons either by direct recruitment or otherwise.

3. The prayer in W.P.(MD)Nos.5701 of 2007 and batch cases is for a direction to appoint the petitioners in the respondent Corporation on the interview conducted by the third respondent and as per the order made in W.P.(MD)No.36801 of 2005 dated 9.12.2005.

4. Insofar as the Writ Petitions represented by Mr. Silambannan, learned Senior Counsel, it is seen that the petitioners were already called for an interview and it is not known as to the result of the interviews. In the meanwhile, they are seeking for implementation of the earlier Division Bench Order dated 9.12.2005. If the case of the petitioners represented by the learned Senior Counsel is already covered by the Division Bench Order, there is no necessity for them to file any second Writ Petition. If they are called for the interview for direct recruitment, then, they will have to wait for the outcome of the said interview and can challenge selection of others or the non- selection of the petitioners in appropriate proceedings. Therefore, the Writ Petitions are misconceived.

5. In respect of the Writ Petitions represented by Mr.S.Arunachalam, learned counsel, it must be stated that the petitioners cannot blow hot and cold. On the one hand they cannot claim re-employment under section 25-H of the I.D.Act and on the other hand, claim for any direct recruitment in terms of G.O.Ms.No.41, Transport Department, dated 13.7.2006.

6. In any event, the nature of right projected by the petitioners represented by the learned counsel has already been answered by this Court vide judgment in K.Kumaran and others v. State of Tamil Nadu, rep. by its Secretary, Transport Department, Chennai and others (2007) 3 MLJ 233 (rendered by me). In paragraph 36 and 37, this Court after analysing various aspects of G.O.Ms.No.41, Transport Department, dated 13.7.2006 and all the previous litigations and orders passed relating to the said G.O., it was observed as under. Para 36: "These two sub-paragraphs found in paragraphs 4(ii) and 4(iii) are completely contrary to the preferential right carved out under Section 25-H of the I.D.Act as interpreted by the Apex Court and therefore, these two paragraphs viz., 4(ii) and 4(iii) of G.O.Ms.No.41, Transport Department, dated 13.7.2006, which are sought to be enforced by the petitioners in these writ petitions and several other writ petitions, had to be rejected for the following reasons: (i) Right of re-employment under Section 25-H of the I.D.Act will have to be determined only if an employee's retrenchment comes within the definition of the term 'retrenchment' found in Section 2(oo) of the I.D.Act and that it is not hit by the exception found in sub-section (bb) introduced by Central Act 49 of 1984 with effect from 18.8.1984.

(ii) Further, the claims of workmen will have to be determined in terms of paragraph 139(3)(b) of the order passed by the learned Judge in the batch of cases, disposed on 14.12.2006, wherein the learned Judge clearly states that only persons who are qualified under Section 25-F of the I.D.Act are eligible for re-employment but it will not apply to persons, who have not actually worked under the Corporation but made a bogus claim.

(iii) The workmen, who have approached this Court including the petitioners, though made a false claim about the length of their service and by the impugned order, the respondent-Corporation had taken a definite stand that they had worked less than 20 days and 11 days that too, they had worked in vacancies due to unforeseen circumstances like strike, festivals and large scale absenteeism, are not eligible for an preferential treatment.

Para 37 "In view of the dispute over their claim, the said employees will have to approach the appropriate Labour Court to establish the total number of days worked by them and that their subsequent non-employment and their claim preference for re-employment was guaranteed under Section 25-H of the I.D.Act. It is for them to prove to the satisfaction of the Labour Court that they were actually retrenched in terms of the main definition under Section 2(oo) of the I.D.Act and not covered by the exception found under sub-section (bb) of Section 2(oo) of the I.D.Act."

7. In the light of the same, it is for the petitioners to work out their rights in terms of the orders passed by this Court. However, Mr. S. Arunachalam, learned counsel submitted that the Trade Union of the petitioners have already raised the dispute regarding their rights under the I.D.Act and it is pending conciliation before different Conciliation Officers. Therefore, it is for the petitioners to work out their rights in terms of the provisions of the I.D.Act and not to come before this Court with relief based upon the some apprehensions.

8. Therefore, all the Writ Petitions are misconceived and the same will stand dismissed. No costs. Interim injunction already granted stands vacated and consequently, Miscellaneous Petitions are closed. asvm

To

1.The Managing Director,

The Management of

Tamil Nadu State Transport Corporation

(Kumbakonam) Ltd.,

Kumbakonam Region,

Kumbakonam.

2.The Secretary to

Government of Tamil Nadu,

Transport & Highways Dept.,

Fort St.George,

Chennai - 600 009.

3.The Managing Director,

Tamil Nadu State,

Transport Corporation Ltd.,

Madurai Division - III,

Madurai.

4. The General Manager,

Tamil Nadu State,

Transport Corporation Ltd.,

Madurai Division - III,

Nagercoil.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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