(Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to direct the respondent to provide the job of loader or any suitable job to the petitioner who is the legal heir of deceased A.Thangadurai, one of the workman concerned in ID 65/91treating him on par with similarly placed legal heir's of two of the deceased employees namely Anburaj and R.Rajagopal.)
1. Instant writ petition is for a writ of mandamus, directing the International Airport Authority of India (herein after called as IAAI), respondent to give a suitable job to the petitioner, whose father was a Contractual employee.
2. IAAI used to engage contract labour for loading and unloading of cargo. Though the monthly pay was paid by the Contractor to the contractual employee, their work was supervised by IAAI. Employees, who were working in 1985 as contract employees were terminated. They formed a Cooperative Society and continued to do the job of loading and unloading the work as per Memorandum of Understanding entered into between them and IAAI. When IAAI admitted to engage another Contractor, Union approached the Industrial Tribunal, stating that they were the employees of IAAI and the Memorandum of Understanding between the Society and IAAI is only sham and they demanded that their services must be regularised by IAAI itself. Vide, order, dated 21/12/1994, Tribunal has held that Memorandum of Understanding/Contract entered into between the Society and the IAAI is sham and that all the persons are employees of IAAI. This order was challenged before this Court, in W.P.No.6126 of 1995 by IAAI. The learned Single Judge, set aside the award, by its order, dated 15/12/1997, and passed certain directions, which reads as under:
“(i). The Central Government and the Advisory Board constituted under the provisions of the Act 37/70 are directed to consider the question of abolition of contract labour in the task of packing and loading; and works incidental thereto if such question is not already engaging their attention. The examination of the question and appropriate decision thereon shall be taken within a period of twelve months from today.
(ii). Until such time of the Central Government takes a decision, the workmen concerned in this dispute shall be continued notwithstanding the interruption in their employment as contract labourers from 1994 till date, as contract labourers on the terms and conditions that were part of the agreement between the society and IAAI prior to 1994, subject to the further condition that the wages payable to the workmen shall not be less than what was aid to the contract labourers who had been engaged between 1994 and 1997.
(iii). The engagement of these workmen as contract labourers will be subject to their good behaviour, conduct and discipline and efficient performance of the duties which they are required to be discharged in the cargo complex
(iv). The workmen shall be engaged in the cargo complex with effect from first week of January; and
(v). In the event of Central Government issuing a Notification under Section 10 prohibiting contract labour in these occupations, all those who had worked as contract labourers under the contracts between the society and IAAI upto the number specified in the contract, shall be absorbed by IAAI in the same manner as was directed by the Apex Court in the case of AIR INDIA STATUTORY CORPORATION.”
3. Union, challenged the order of the learned Single Judge, in W.A.No.544 of 1998. A Hon'ble Division Bench by its judgment dated 12/11/2001, set aside the order of the learned Single Judge, and confirmed the award of the Tribunal, dated 23/12/1994, stating that Tribunal is fully justified in directing the absorption of the members of the workers Union as stated in the annexure to the claim petition except the members who expired and who have left the service, according to seniority and as per the requirements of the IAAI with effect from 23/12/1994, namely, the date of the award.
4. Order of the Division Bench was challenged by filing SLP which on admission was numbered as C.A.No.224 of 2002 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by its judgment dated 13/4/2009, set aside the order of the Hon'ble Division Bench and restored the order of the learned Single Judge. The Hon'ble Supreme Court, ordered as under:-
“30. In the light of our findings on the two questions, the order of the Division Bench cannot be sustained and is liable to be set aside and the order of the learned Single Judge has to be restored. We may, however, note that the last direction given by the learned Single Judge that in the event of the Central Government issuing a notification under Section 10 of the CLRA Act, all those who had worked as contract labour under the contract between IAAI and society should be absorbed in the same manner as was directed by this Court in Air India is a direction which is bad in law, as subsequent to the said decision of the learned Single Judge, this Court in SAIL, reversed the decision in Air India. IAAI did not challenge the said direction. SAIL has also made it clear that the decision in Air India is overruled prospectively and any declaration or direction issued by industrial adjudicator or High Court for absorption of contract labour following the judgment in Air India shall hold good and shall not be set aside, altered or modified on the basis of the decision in SAIL. Therefore, the said direction of the learned Single Judge which has attained finality, as IAAI did not challenge the same, is not disturbed. In view of the above, the appeal is allowed in part, the order of the Division Bench is set aside and the order of the learned Single Judge is restored.”
5. Pursuant to the order of the Hon'ble Supreme Court, IAAI terminated the services of the workmen leading to filing of W.P.No.10383 of 2009. A learned Single Judge by an order, dated 16/6/2014, set aside the termination but held that though the workers are only contract labours but they are being engaged by IAAI purely as an interim measure, until a decision is taken by the Central Government, under Section 10 of the Contract Labour (Regulation and Pollution) Act, 1970.
6. Be that as it may. Petitioner's father passed away on 17/3/2004. The petitioner is therefore, seeking compassionate appointment on the ground that the petitioner's father was one of the 77 workers who have approached the Tribunal and salary was being paid, as per the direction of the Hon'ble Division Bench of this Court in W.A.No.544 of 1998. Petitioner also would claim that two other persons, who are placed in similar circumstances had passed away and therefore, their legal heirs were given job as contract labour and have been paid by the Airport Authority of India.
7. Respondents have filed a counter affidavit. In the counter, respondents have categorically stated that Uma Maheshwari and R.Thanigavelu, were not employed by the Airport Authority of India rather they were appointed on compassionate grounds by the Society. It is therefore, the stand of the respondents that the petitioner cannot claim employment directly by IAAI. It is further stated that all the workers are being paid by the Transport Authority of India only in terms of the directions of the Hon'ble Supreme Court. It is stated that since the petitioner's father was only contract labour, the petitioner cannot claim any right to be appointed on compassionate basis.
8. Heard Mr.N.G.R.Prasad, learned counsel for the petitioner and Mr.R.Parthiban, learned counsel for the respondent.
9. From the materials available on record, it is made clear that writ petition is silent as to who provided employment. In the counter, respondent has taken a categorical stand that IAAI has not given the employment rather the society which was the contractor in between had permitted the legal representatives to continue to work as labourers. No rejoinder has been filed to this counter. In fact, the first annexure in the typed set which lists out the members shows Uma Maheshwari and R.Thanigavelu are members of the Union which impliedly shows that they were working as Contract Labour as appointed by the Contractor. The petitioner's father Late.A.Thangadurai, is shown as deceased member and the petitioner had not been appointed by the Contractor. The petitioner cannot take a claim with IAAI for appointment on compassionate basis. The petitioner has not referred to any scheme with IAAI which provides for employment on compassionate basis for workers who have not been regularized or absorbed by the IAAI. The fact that two of the members of the Union had passed away and that the contractor had himself given appointment on compassionate basis to the legal representatives of the deceased members of the Union cannot give rise to any claim by the petitioner against the IAAI. The fact stated above would show that other members of the Union are being continued to work till an appropriate remedy is passed by the Government under Section 10 of the Contract Labour (Regulation and Pollution) Act, 1970.
10. After the hearing, the learned counsel for the petitioner has produced office note dated 21.11.2019, which reads as under:-
"Reference Manager (Law), AAI, Chennai Airport mail dated 21.11.2019 on the above mentioned subject.
2. In this regard, it is informed that the contract employees who were ex-loaders at Chennai Airport approached the Honourable Supreme Court and obtained an order on petition(s) for Special Leave to Appeal (Civil) No.20562/2009. As per the Order the status quo of the ex-loaders has to be maintained at Chennai. Out of total 77 ex- loaders who were members of the subject case, 56 ex-loaders have joined and they were deployed by AAI w.e.f 10.04.2013 to Feb-14 in batches. The remaining 21 ex-loaders are those who have either expired or attained the age of 60 years as on the date of the initial deployment i.e 10.04.2013.
3. As per records available at HRM Department, AAI has started paying minimum wages to the ex-loaders w.e.f 10.04.2013 as per Central Govt Minimum Wages Act based on the directions of the Hon’ble Court and they were also provided with statutory benefits since the date of their joining.
4. However, it is further informed that the records of deployment and payment of wages to ex-loaders prior to Apr-2013 are not available with HRM department as they were not dealt by HRM department during that period."
A perusal of the above note states that out of 77 contract employees who were ex-loaders at Chennai Air Port had approached the Hon'ble Su
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preme Court and obtained an order of status quo. 56 loaders have appointed and they were deployed by the respondent from 10.04.2013 to Feb-14 in batches. Remaining 21 loaders have either passed away or attained the age of 60 years on 10.04.2013. The fact that these loaders have got employment by the Air India, pursuant to the order of the Hon'ble Supreme Court again does not establish any claim for the petitioner who is the son of a loader who had passed away. As stated earlier, in absence of any provisions which grants compassionate appointment even to the contract labours, this Court is not able to grant relief to the petitioner. 11. It is well settled that appointment on compassionate basis is not a matter of right. There is nothing on record to show that petitioner's father was working with IAAI. The fact that he was being paid by IAAI directly in pursuance to the interim order, dated 1/9/1998 would not give rise to any right to be appointed on compassionate basis. In the absence of any right, the claim of the petitioner for a writ of mandamus on the basis of similarly placed persons cannot be entertained. 12. Accordingly, writ petition is dismissed. No costs.