- (1.) THESE petitions coming on for hearing on Wednesday the 10th day of January, 1990 and upon perusing the petitions and the affidavit filed in support of W. P. No. 1672/89 on the file of the High Court and the order of this court dated 13th February 1989, and made in W. M. P. No. 2563/89 upon hearing the arguments of Mr. N. T. Vanamamalai for Mr. K. K. Parthasarathy, Advocate for the petitioner in both the petitions and of Mr. N. Bhaskaran, Government Advocate, on behalf of the respondent 1 to 3 in both the petitions and of Mr. Sanjay Mohan, Advocate for the 4th respondent and having stood over for consideration till this day, the court made the following order.
(2.) W. M. P. No. 2563 of 1989 is filed by the writ petitioner for grant of ad interim injunction restraining the fourth respondent-Management from in any way displacing or terminating the services of 14 workmen presently employed in the process of sweeping and scavenging in the fourth respondent establishment pending disposal of the writ petition. W. M. P. No. 2564 of 1989 is filed by the writ petitioner for issuance of a direction to the fourth respondent-Management for payment of interim relief to bridge the gap between the amounts being paid to the petitioner workmen concerned in the range of Rs. 300/- to Rs. 450/per month and the applicable scale of pay to the same category of workmen in the fourth respondent-establishment in the range of Rs. 1,500/- per month or any amount as per the direction of the court pending disposal of the writ petition.
(3.) THE facts which are necessary for the disposal of these petitions as disclosed from the affidavit filed in support of the petitions are briefly as follows :- 14 sweeping and scavenging workmen, who are members of the petitioner-Union, are employed by the fourth respondent through a contractor, most of whom have put in 16 years of service. The Government of Tamil Nadu, namely, the first respondent herein, have issued a Notification G. O. Ms. No. 2082 dated 19th September 1988, which came into force on 1st October 1988, prohibiting the employment of contract labour in the process of sweeping and scavenging in the establishments which are employing 50 or more workmen. It is submitted that consequent on the coming into force of the said Notification, all the 14 workmen already working as sweepers and scavengers for several years in the establishment on the fourth respondent became and deemed to be workmen directly employed under the fourth respondent-management. Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 empowers the Government of Tamil Nadu to prohibit by Notification contract labour in any process, operation or other work in any establishment. It is stated that the above Notification issued by the Government is applicable to the establishment of the fourth respondent in as much as there are more than 150 employees engaged in the said establishment. To a notice issued by the petitioner-Union on 2nd November 1988 to the fourth respondent inviting its attention to the said notification and requesting its confirmation for absorbing these workmen as direct employees and paying them salaries as per fourth respondent-Management's applicable scale of pay, the fourth respondent-Management in reply contended that the said Act did not apply to it. According to the petitioner, the reasons given therein are not tenable. It is stated that the work of sanitation is a perennial one in the establishment of the fourth respondent and it is bound to provide sanitation facilities to all the employees employed therein and hence there is a necessity to engage the sweeping and scavenging workmen which is perennial in nature. The fourth respondent-Management filed W. P. No. 15066 of 1988 Shaw Wallace Company Ltd. rep. by its Personnel Manager v. Govt. of Tamil Nadu rep. by the Commissioner and Secretary to Govt. Labour and Employment Dept. , Fort St. George, Madras - 9 on 30th November 1988 against the Notification issued under the Act and got stay on 8th December 1988 in W. M. P. No. 22554 of 1988. Aggrieved by the above order, the petitioner-Union filed W. M. P. No. 23799 of 1988 and 23800 of 1988 on 16th December, 1988 to implead the petitioner and to vacate the stay order. The fourth respondent - Management withdrew the said stay order. Hence there is no stay of the operation of the Notification in the fourth respondent-Management in view of the voluntary withdrawal. All efforts of the petitioner-Union requesting respondents 1 and 2 to take necessary action for the implementation of the Notification in the fourth respondent's Establishment proved of no avail. It is further submitted that the workmen once engaged in the sweeping and scavenging work under the contractor all along, had been working under the fourth respondent under its supervision and control directly because the contractor has no role to play in the actual performance of the duties. The fourth respondent-Management maintains the regular attendance register to enforce the attendance of the workmen engaged to do the scavenging and sweeping work. They are all governed by the E. S. I. , leave and other regulations and discharge duties for more number of hours than other in the fourth respondent's concern. The work involved is not mechanical but has to be done by the workmen through human agency with a certain amount of skill and diligence to cater to the needs of sophisticated establishment and it officers and staff. It is further stated that these workmen are covered by the provisions of the Industrial Disputes Act and they have fulfilled the requirements of uninterrupted service conditions laid down under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 and they are deemed to be permanent workmen under the fourth respondent - Management when the notification came into operation on 1st October 1988. The workmen are paid a consolidated salary in the rate of Rs. 300/- to Rs. 450/- per month although they have put in very long service under the fourth respondent - Management. The initial starting salary of the sub-staff in the category of sweeping and scavenging in the fourth respondent - Establishment is more than Rs. 1,500/- per month. Hence, it is prayed for the issuance of direction to the fourth respondent for payment of interim relief to bridge the gap between the amount being paid to the petitioner-workmen concerned in the range of Rs. 300/- to Rs. 450/- per month and the applicable scale of pay to the same category of workmen in the fourth respondent - Establishment in the range of Rs. 1,500/- per month or any other amount as per the direction of the Court. Further, consequent upon the abolition of the contract labour through the abovesaid Notification by the Government of Tamil Nadu, the petitioner - employees became the direct workers under the fourth respondent. Hence they filed the writ petition for issuance of a writ of mandamus directing the Assistant Commissioner of Labour (C) Madras - 6, the authority constituted under the Contract Labour (Regulation and Abolition) Act, 1970, the third respondent herein, to implement the Notification by regularising all the existing 14 workmen permanently employed in the fourth respondent establishment in sweeping and scavenging as direct workmen and fixing them in the regular scales of pay applicable as per their service with effect from 1st October 1988 and pending disposal of the said writ petition, they filed these two miscellaneous petitions. ;