w w w . L a w y e r S e r v i c e s . i n



A. Kasturi v/s The National Institute of Fashion Technology, Represented by the State Level Management Committee through its Member Secretary Chennai


Company & Directors' Information:- J R FASHION PRIVATE LIMITED [Active] CIN = U17121GJ2007PTC051911

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Company & Directors' Information:- K. V. FASHION PRIVATE LIMITED [Active] CIN = U18101GJ2007PTC049885

Company & Directors' Information:- J G A FASHION PRIVATE LIMITED [Active] CIN = U18101DL2004PTC127450

Company & Directors' Information:- S G S FASHION PRIVATE LIMITED [Active] CIN = U17120WB2009PTC136899

Company & Directors' Information:- KASTURI (INDIA) PRIVATE LIMITED [Active] CIN = U22121DL1998PTC093714

Company & Directors' Information:- K L FASHION PRIVATE LIMITED [Active] CIN = U18109WB2011PTC164424

Company & Directors' Information:- M G FASHION PRIVATE LIMITED [Under Liquidation] CIN = U18101MH2003PTC141420

Company & Directors' Information:- M D FASHION PRIVATE LIMITED [Active] CIN = U74994MH2006PTC158814

Company & Directors' Information:- D K FASHION PRIVATE LIMITED [Active] CIN = U17210PB2005PTC029052

Company & Directors' Information:- A J FASHION PRIVATE LIMITED [Under Process of Striking Off] CIN = U18100MH2005PTC153001

Company & Directors' Information:- FASHION INDIA LIMITED [Active] CIN = U99999MH1993PLC070454

Company & Directors' Information:- V M G INSTITUTE OF FASHION PRIVATE LIMITED [Strike Off] CIN = U74994WB2011PTC166944

Company & Directors' Information:- G. N. FASHION PRIVATE LIMITED [Active] CIN = U52322MH2011PTC218508

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Company & Directors' Information:- F M FASHION PRIVATE LIMITED [Active] CIN = U52190WB2012PTC174195

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Company & Directors' Information:- S R K FASHION PRIVATE LIMITED [Strike Off] CIN = U74994MH2006PTC159371

Company & Directors' Information:- N S FASHION PRIVATE LIMITED [Active] CIN = U18109DL2006PTC156664

Company & Directors' Information:- S I FASHION PRIVATE LIMITED [Strike Off] CIN = U18204DL2006PTC157108

Company & Directors' Information:- N A FASHION PRIVATE LIMITED [Strike Off] CIN = U51101DL2007PTC163354

Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- R N G FASHION PRIVATE LIMITED [Strike Off] CIN = U17200DL2012PTC229730

Company & Directors' Information:- S G A FASHION PRIVATE LIMITED [Active] CIN = U18100DL2006PTC155885

Company & Directors' Information:- S S J FASHION PRIVATE LIMITED [Strike Off] CIN = U18101DL2013PTC248837

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

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Company & Directors' Information:- KASTURI MANAGEMENT PVT LTD [Strike Off] CIN = U51109WB1996PTC078504

Company & Directors' Information:- G FASHION PRIVATE LIMITED [Strike Off] CIN = U17120DL2007PTC164098

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    W.P.No.6455 of 2002

    Decided On, 12 June 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. MANIKUMAR

    For the Petitioner: V. Prakash (SC) for T. Ramkumar, Advocate. For the Respondent: K.V. Sudararajan, Advocate.



Judgment Text

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Mandamus, forbearing the respondent herein from denying work to the petitioner and in particular forbearing the respondent from denying work to the petitioner insisting that she would have to come through a Contractor.)

1. The petitioner has sought for a writ of Mandamus, forbearing the respondent herein from denying work to her and in particular, without insisting that she should come through a Contractor.

2. It is the case of the petitioner that she joined the services of the respondent institute as a Sweeper on 04.08.1994. However, no written order of appointment was issued to her. At that time, National Institute of Fashion Technology, Taramani, Chennai, was functioning within Co-Optex Compound, Pantheon Road, Egmore, Chennai. Her work was to clean the premises, class rooms, office room and hostel premises. Working hours of the petitioner was between 08.00 A.M. to 05.00 P.M. She was employed on all days except on sundays.

3. It is the further case of the petitioner that at the time of appointment, she was paid a salary of Rs.750/- per month. She has also submitted that on the date of filing of the writ petition, she was paid Rs.900/- per month. On 31.12.2001, she was informed that from 01.01.2002, she has to work under a contractor. The institute was shifted to Taramani on 01.01.2002. Though the petitioner insisted that she should be continued to be employed as a direct labourer and that no contractor need be introduced, the petitioner along with four others were denied work.

4. The petitioner has further contended that National Institute of Fashion Technology, Taramani, Chennai, is an industry within the meaning of Section 2(j) of the Industrial Disputes Act and the petitioner is a worker within the meaning of Section 2(s) of the Act. No notice or written communication was given to the petitioner, denying work. According to her, introduction of an intermediary contractor, as a condition precedent, for continuation of her work is violative of Section 9(A) of the Industrial Disputes Act. On the above pleadings, the petitioner has sought for a Mandamus, stated supra.

5. Based on the counter affidavit filed by the Registrar and the Director, National Institute of Fashion Technology, Taramani, Chennai, Mr.K.V.Sudararajan, learned counsel for the respondent, made a preliminary objection that the petitioner cannot be termed as a worker as defined in Section 2(s) of the Industrial Disputes Act. According to him, if there was any denial of work, or violation of any of the provisions of the Industrial Disputes Act, the remedy open to her is to approach the Labour Court under the said Act and that therefore, the writ petition deserves to be dismissed. Without prejudice to the above, he has also submitted that National Institute of Fashion Technology is a Central Government Institute. It has become a statutory institute by an Act of Parliament, namely, National Institute of Fashion Technology Act 2006. It has 15 centres across the country, including Chennai Campus. NIFT has a single Board of Governors with the Director General, as the Chief Executive Officer of the Institute. The Head Office of the Institute is located at New Delhi.

6. Learned counsel for the respondent further submitted that by order, dated 09.06.1995, Government of India, Ministry of Textiles, ordered for setting up of branches at Bombay, Calcutta, Madras, Hyderabad and Gandhi Nagar, with certain terms and conditions. One of the terms and conditions was that the State Government concerned, should make suitable that temporary accommodation to start the courses from the academic year 1995-96 onwards and temporary accommodation should be provided, free of rent/charges. The State Government should provide free of cost, a land for building, permanent campus of the NIFT branch. In the light of the above, the Government of Tamil Nadu permitted to set up NIFT branch at Chennai in Co-Optex Complex, Pantheon Road, Egmore, Chennai-8.

7. Referring to the date of joining 04.08.1994 mentioned in the supporting affidavit to the writ petition, learned counsel for the respondent, submitted that on that date, the petitioner could not have joined the services of the respondent as a Sweeper, as NIFT branch was opened in Chennai only on 09.06.1995. According to him, in 1995, it was a small organisation and therefore, there was no requirement of Sweeper, Cleaner, Watchman, etc., on regular basis. During those days, persons working in Co-Optex and other neighbouring organisations were called and their services were utilised.

8. Learned counsel for the respondent further submitted that inauguration of the new premises at Taramani was done on 28.07.2002 and that therefore, the contention that the Institute was shifted on 01.01.2002 is not correct. According to him, for house keeping, security, electrical and for other services, third parties are being engaged on contract basis, awarded by way of tenders. There is no provision in the service rules of the respondent for the post of Sweeper and no post has been sanctioned in the category of Sweeper, Cleaner, Watchman etc., and in the abovesaid circumstances, the relief sought for has to be rejected.

9. Placing reliance on a decision of the Supreme Court in Bihar Rajya Vidyut Parishad Field kamgar Union Vs. State of Bihar and Others, reported in1987 (3) SCC 512, he submitted that when the appointment of the petitioner as Sweeper on 04.08.1994, much earlier to the very creation of NIFT branch at Chennai, her continuous engagement and other aspects have been disputed, the same should be adjudicated only before the appropriate Forum under the Industrial Disputes Act and on the facts of this case, a writ petition would not lie.

10. By way of reply, Mr.V.Prakash, Learned Senior Counsel appearing for the petitioner, submitted that being a poor lady appointed as a Sweeper, way back in 1995, is not expected to maintain any records, as no appointment order was issued to her. According to him, all along, her services as Sweeper were utilised and when the institute shifted their place of functioning, suddenly, the respondent had compelled her to seek employment through a contractor and when she insisted for continuation of work as a Sweeper directly without any intermediary, she was stopped and therefore, she was constrained to approach this Court, for a Mandamus and unfortunately, the request to grant an interim injunction, restraining the respondent from denying work to the petitioner as Sweeper in their institute, pending disposal of this writ petition, was not granted. According to him, National Institute of Fashion Technology was set up by the Government of India as a society under the Societies Registration Act, 1860. The Institute had been conducting full time diploma programmes in fashion designing, garment manufacturing technology etc., in seven centres including Chennai, even before passing of an enactment and after the enactment, National Institute of Fashion Technology Act 2006, the said institute has been given a statutory status, for promotion and development of education and research in fashion technology, and for matters, connected therewith.

11. Taking this Court through the provisions of the abovesaid statute, he submitted that the institute conducts courses leading to graduation and post graduation degrees, Doctoral and Post Doctoral courses and research in fashion technology, hold examinations and awards degrees etc, and therefore, having regard to the nature of functions carried on by the institute, it is not open to the respondent to contend that house keeping, security, electrical and other services were done only, by engaging contractors. According to the Learned Senior Counsel the post of Sweeper or any other similar Class-IV employee in an establishment or institute of this nature, where there would be lot of waste materials such as textile materials, leather and other materials used for tutorial or practical purposes and that cleaning up of the premises of the institute is a continuous work and in the abovesaid circumstances, when the petitioner was engaged, all along from 1994 onwards, it is not open to the respondent to disrupt the services of the petitioner and other similarly placed persons, by resorting to contract labour, without regularising their services, by creation of suitable posts, if necessary. Learned Senior Counsel also submitted that after the hearing of preliminary arguments were advanced on behalf of the petitioner, the respondent has chosen to file a counter affidavit and introduced new facts, by filing an additional affidavit, by which, engagement of the petitioner as Sweeper has been denied, for the first time and therefore the same should not be entertained.

12. Placing reliance on the decision of the Supreme Court in The Workmen of the Food Corporation of India Vs. M/s.Food Corporation of India, reported in 1985 II LLJ 4, Learned Senior Counsel submitted that disengaging the services of the petitioner without following the provisions of the Industrial Disputes Act, would amount to unfair labour practice and for the reasons stated supra, prayed for appropriate directions to the respondent to allow continuous engagement of the petitioner in the institute.

Heard the learned counsel for the parties and perused the materials available on record.

13. Though the petitioner has contended that she was appointed as a Sweeper on 04.08.1994, in the National Institute of Fashion Technology, Taramani, Chennai, the respondent herein, functioning within Co-Optex Compound in Pantheon Road, Egmore, Chennai, no material document has been placed before this Court. Even according to the petitioner, there is no written appointment order. It is the case of the respondent that the National Institute of Fashion Technology, Taramani, Chennai, has been established by an Act of Parliament in the year 2006. As against the case of the petitioner that she was engaged as Sweeper from 08.00 A.M to 05.00 P.M., in the year 1994, the respondent has submitted that in 1995, the institute functioning within Co-optex Compound, Pantheon Road, Egmore at Chennai, was a very small organisation and that there was no requirement of Sweeper, Cleaner and Watchman, etc., on regular basis and services of persons from neighbouring organisations, like Co-Optex etc., were utilised. There may be a possibility that her services could have been utilised by the institute, but then, according to the respondent, there was no need for engaging a sweeper on regular basis. At this juncture, it is also to be noted that no post of Sweeper has been sanctioned.

14. The plea to reject the averments in the additional counter affidavit, cannot be countenanced, for the reason that it is always open to the contesting respondent to place facts in the form of an affidavit. What has been pleaded in the counter affidavit is about the establishment of the institute, shifting of the same to Taramani and incidentally, the respondent has also denied engagement of the petitioner as Sweeper. Even otherwise, dealing with the nature of evidence and the distinction as between a civil suit and a proceeding under Article 226 of the Constitution of India, the Supreme Court in Bharat Singh and Others Vs. State of Haryana and Others, reported in 1988 (4) SCC 534, at paragraph 13, the Supreme Court held as follows:

".... In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evident which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."

15. It is the specific case of the respondent that right from the beginning, no posts of Sweeper, Cleaner or Watchman etc., were sanctioned in the organisation and from 01.01.2002 onwards, the Institute has been shifted to Taramani. From the abovesaid date, contractors have been engaged for house keeping, security, electrical and for other services and that contracts have been awarded, by way of tenders. Though the petitioner has contended that she was continuously working from 1994 onwards and paid Rs.750/- per month, there is no proof. No materials have been placed before this Court to substantiate her claim. Even assuming that the petitioner had worked for 240 days or more in a year, yet the Supreme Court held that it is for the petitioner to substantiate the same. When continuous engagement is disputed, then this Court cannot record any finding. Reference can be made to few decisions:-

(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Ors.) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court.

(b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows:

"19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Panda case (1994) 5 SCC 304 was essentially a question of fact...."

In paragraph 22, the Honourable Supreme Court further held as follows:

"22. ...a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1...."

(c) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Ors.), the Honourable Supreme Court held that

'The statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'.

(d) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows:

"Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter.'

16. Though this Court expresses its appreciation for the efforts taken by the Learned Senior Counsel in vindicating the grievance of the petitioner, but, in the absence of any supporting materials stated supra and in the light of the decision of the Supreme Court in Bihar Rajya Vidyut Parishad Field kamgar Union Vs. State of Bihar and Others, reported in 1987 (3) SCC 512, and The Workmen of the Food Corporation of India Vs. M/s.Food Corporation of India, reported in 1985 II LLJ 4, this is not in a position to issue any Writ in the nature of Mandamus, directing continuance of the services of the petitioner. According to the respondent, decision to engage contractors for house keeping, security, electrical, and other services to third parties by way of contracts has been taken in 2002 and it is stated to be continued. Though the contention of the Learned Senior Counsel that there would be a constant requirement of cleaning up the premises of the institution, could be accepted, but at the same time, the decision of the respondent to engage the contractors for the abovesaid purposes, cannot be declared as arbitrary, in this writ petition, at this length of time, as even during the commencement of the institute, posts of Sweepers, Watchmen etc., have not been sanctioned. Creation and abolition of posts is the purely prerogative of the Government and Courts cannot direct them to create a posts for regularisation of the services of the petitioner. Even in Secretary, State of Karnataka and others vs. Umadevi and others,reported in 2006 (4) SCC 1, the Apex Court directed regularisation of many daily rated employees who were engaged for more than 10 years alone, as a one time measure. Even assuming that the petitioner had worked in the institute, in the absence of proof, and satisfying the required number of years of work in the institute, the benefit of the judgment in Umadevi's case (cited supra), cannot be extended. On the aspect of creation and abolition of posts, reference can be made to the following decisions.

17. In P.U.Joshi and others vs. Accountant General Ahmedabad and others reported in (2003) 2 Supreme Court cases 632 at paragraph 10 of the judgement, the Supreme Court held as follows:

"Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to the fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment of eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criterial and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."

18. The above legal position has been affirmed in a recent judgment in Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. reported in (2007) I Supreme Court Cases 408 at paragraph 37,

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/> "That creation and abolition of posts and regularisation are purely executive functions vide P.U.Joshi v. Accountant General reported in (2003) 2 Supreme Court cases 632 : 2003 SCC (L&S) 191. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This court cannot arrogate itself the powers of the executive or legislative. There is broad separation of powers under the constitution, and the judiciary, too, must know its limits." 19. In a recent decision, State of Haryana and others vs. Navneet Verma, reported in 2008(2) CTC 416, the Supreme Court after considering various decisions, summarised the power of the government in creating/abolishing a post as follows: "a) The power to create or abolish a post rests with the government; b) Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity; c) Creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration. d) Creation, continuation and abolition of posts are all decided by the government in the interest of administration and general public. e) The court would be the least competent in the face of scanty material to decide whether the government had acted honestly in creating a post or refusing to create a post or its decision suffers from malafide legal or factual; f) As long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted." The decision made in The Workmen of the Food Corporation of India Vs. M/s.Food Corporation of India, reported in 1985 II LLJ 4, would not lend any support to the case of the petitioner in the absence of evidence. 20. For the reasons stated supra, this Court is of the view that the petitioner has not made out a case for issuance of a writ of Mandamus. Accordingly, the writ petition is dismissed. No costs.
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