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2003 DIGILAW 1695 (MAD)

The Commissioner, Coimbatore City Municipal Corporation, Coimbatore v. Andal Eswari

2003-10-20

R.JAYASIMHA BABU, S.K.KRISHNAN

body2003
Judgment :- S.K. KRISHNAN, J.: 1. Aggrieved by the order of the learned Single Judge dated 30.11.1999, passed in W.P.No.2845 of 1997, the appellant filed this writ appeal under Clause 15 of the Letters Patent. 2. The facts, in brief, giving rise to this appeal, are as follows: The respondent/petitioner was appointed as a section writer in the water charge and accountant section by the appellant Corporation in the month of November, 1990 by order dated 28.11.1990 on daily wages basis. Prior to that, the respondent had worked under the appellant as a section writer on piece rate basis. Though the respondent had given representations in the years 1988, 1989, 1990 and 1991 to the Appellant to absorb her on a permanent basis in the vacant post, since the same failed to elicit any response from the Appellant, in the wake of judgment of this Court in W.A.No.1544 of 1988 dated 3.1.1989, wherein, a direction was given by this court to absorb the daily rated workman, she filed a writ petition in W.P.No.17064 of 1991, for absorption under the appellant, which is pending before this Court. Thereafter, for five years, the appellant was in the practice of permitting the employees including the respondent to work for 89 days and terminate them on 90th day and again reinstate them on 91st day. Lastly, the respondent was appointed on 4.11.1994 and was terminated on 2.2.1995. Since the respondent and other employees had approached the Government, which was the appellate authority, it issued a fax message to the appellant to keep the termination orders in abeyance. However, the appellant did not do so and therefore, the aggrieved, including the respondent had filed another writ petition in W.P.No.12092 of 1995 to issue a writ of mandamus directing the appellant to implement the order of the Government dated 6.2.1995, but the writ petition was dismissed as not maintainable. Therefore, the aggrieved, including the respondent had given representations dated 15.12.1995 and 18.9.1996 to the Government to intervene in the matter with regard to non-implementation of its order dated 6.2.1995 and also they had given representations to the appellant on 26.10.1995, 15.12.1995, 5.1.1996 and 6.2.1996. Therefore, the aggrieved, including the respondent had given representations dated 15.12.1995 and 18.9.1996 to the Government to intervene in the matter with regard to non-implementation of its order dated 6.2.1995 and also they had given representations to the appellant on 26.10.1995, 15.12.1995, 5.1.1996 and 6.2.1996. Since the attempts of the respondent had ended futile, she once again invoking the jurisdiction of this Court under Art.226 of the Constitution of India, filed a writ petition in W.P.No.2845 of 1997, wherein, this Court by order dated 30.11.1999, directed the appellant to provide employment and regularise the services of the respondent, against which, the appellant has come forward with this appeal. 3. Heard the learned counsel for the appellant as well as the respondent. 4. It is contended by the learned counsel appearing for the appellant that there is no sanctioned post of section writer in the Corporation and the respondent/petitioner had been appointed in that post to assist the billing clerk and was paid Rs.30 per day as wages to the respondent on condition that she would be terminated at any point of time and therefore, she cannot claim employment in the Corporation as a matter of right. Moreover, the post in which the petitioner was appointed as a section writer is not a permanent post. In such circumstances, she has no locus standi to claim employment in the Corporation. 5. The learned counsel would further contend that even though the respondent claims that she had been working in the Corporation as section writer from 1987 onwards, she has not produced any documentary evidence to prove the same. Further, it is pointed out that the respondent is not a workman and that she is not entitled to claim any benefits provided under the Industrial Disputes Act. 6. During the course of arguments, the learned counsel appearing for the appellant would contend that the Corporation utilised the services of the respondent as and when required and the respondent was already informed that she would be terminated from service at any point of time. It was also informed even in the appointment order itself and therefore, the respondent, on any ground, cannot claim employment in the Corporation and that the claim is neither acceptable nor sustainable under law. 7. It was also informed even in the appointment order itself and therefore, the respondent, on any ground, cannot claim employment in the Corporation and that the claim is neither acceptable nor sustainable under law. 7. It is seen from the affidavit filed by the appellant that the respondent had worked as section writer from 26.11.1990 till 2.2.1995 and relevant particulars thereto are available in para 2 to 7 of the affidavit. It is pointed out that after 2.2.1995 no appointments of section writerposts were made by the Corporation and hence the respondent, Andal Eswari was not appointed after 2.2.1995 till date. 8. Per contra, the learned counsel appearing for the respondent would contend that the respondent had been attending the work in the office of the appellant even after 1995. This fact has been set out by the respondent in para 4 of her affidavit and the respondent also enclosed the copy of the bills, dated 18.8.1999 and 20.8.1999 towards typing charges received from the appellant, dated 18.8.1999 and 20.8.1999 in support of her claim. Therefore, in such circumstances, the learned counsel would point out that the respondent has been attending the work under the appellant Corporation for many years and therefore, the appellant Corporation should appoint her in the said post and regularise the services of the respondent. 9. It could be seen that from the very beginning the respondent has been continuously raising her claim for an appointment in a permanent post under the appellant Corporation and agitating the matter by giving several representations as well as by filing several writ petitions. This fact had been elaborately discussed by the learned single Judge of this Court in his order. Considering the plight of the respondent, the learned single Judge of this Court, following the judgment of this Court in W.A.No.1544 of 1988 dated 3.1.1989, allowed the writ petition filed by the respondent herein with specific directions to the appellant Corporation for providing employment to the respondent and regularisation of her services. 10. Considering the plight of the respondent, the learned single Judge of this Court, following the judgment of this Court in W.A.No.1544 of 1988 dated 3.1.1989, allowed the writ petition filed by the respondent herein with specific directions to the appellant Corporation for providing employment to the respondent and regularisation of her services. 10. In such circumstances, when it is clear from the materials available on records that the respondent has been working under the appellant Corporation more than a decade i.e., from 1990 onwards, in the light of the well-settled propositions, and also following the order made by the Division Bench of this Court in W.A.No.1544 of 1988 dated 3.1.1989, we are not inclined to allow this writ appeal since no case was made out and therefore, while dismissing this appeal, the order of the learned single Judge of this Court passed in a batch of writ petitions, dated 30.11.1999 is confirmed in so far as the Respondent herein alone. 11. In result, the writ appeal is dismissed. No costs. Consequently, the C.M.P.No.233 of 2001 is also dismissed.