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2004 DIGILAW 331 (MAD)

C. Ramamurthy v. The Management Rural Unit & Others

2004-03-03

K.P.SIVASUBRAMANIAM

body2004
Judgment :- The petitioner prays for the issue of writ of certiorari to call for the records relating to the award of the Labour Court, Vellore in I.D.No.421 of 1993 dated 5.10.1994 and to quash the same. 2. The following facts are sufficient for the disposal of the writ petition and the facts stated in this para are not in controversy. The petitioner, who is a B.Sc.(Botany) graduate, came to be appointed as Agricultural Supervisor Trainee on 1.7.1983 in the Rural Unit for Health and Social Affairs (RUHSA) Gudiyattam, N.A.A.District. From 1.3.1984 he was appointed as supervisor on probation for a period of one year. That was done by virtue of the order dated 9.5.1984 with effect from 1.3.1984. Subsequently, the second respondent, the Management, Christian Medical College and Hospital, Vellore, NAA District, under whom the employees were appointed, were given option either to remain under RUHSA Rules or to come under CMCH Rules. It was made clear that if the employee opted to come under CMCH Rules, he will be governed only by the RUHSA rules and regulations regarding pay, increments, D.A., leave rules and service condition etc., The following is the letter calling for the option from the employees:- " Consequent on the reorganisation of RUHSA, you are requested to give your option to come under the discipline, salary scales of C.M.C.H., and also to work in any department of C.M.C.H. Or RUHSA department as; the case may be or to remain in the old scales of RUHSA on or before 8th April, 1986. You are required to give your option in the tear off slip provided below, failing which it will be construed that you would like to remain in the old RUHSA scales. If you would like to remain in the RUHSA scales of pay, you will be governed by the old RUHSA rules and regulations regarding pay, increments, D.A., leave rules and service conditions etc., as on 30.6.1985. The retirement benefits will also be as per RUHSA's rules. On the other hand if you opt to come under the discipline of CMCH, you will be governed by the CMCH rules and regulations regarding pay, increment, D.A., and leave rules, retirement benefits, Death benefits etc., with effect from 1.7.1985. The option once made is final and irrevocable." 3. The retirement benefits will also be as per RUHSA's rules. On the other hand if you opt to come under the discipline of CMCH, you will be governed by the CMCH rules and regulations regarding pay, increment, D.A., and leave rules, retirement benefits, Death benefits etc., with effect from 1.7.1985. The option once made is final and irrevocable." 3. There is also no dispute over the fact that by letter dated 22.7.1987, the petitioner opted to come under CMCH Rules. In the letter he has stated that he was working as Dairy Supervisor in RUHSA from 1.7.1983 having been appointed by the Programme Director, RUHSA and that consequent on the reorganisation of RUHSA, he has given his option and willingness to come under the discipline of CMCH and also to work in any unit/Department of CMCH or RUHSA department as the case may be and that he will abide by the CMCH Staff service rules, Leave rules and other Rules & Regulations. The other portions of the format are struck off. 4. Thereafter the appointment of the petitioner was extended every year from 1988 to 1990. The last extension is dated 4.1.1990, extending the period up to 1.2.1990. 5. However, by letter dated 29.1.1990, the services of the petitioner were ordered to be closed and in that letter it was stated that in terms of his appointment order dated 4.1.1990, his term of appointment as Live Stock Assistant in RUHSA Department expired on 31.1.1990 and that there is no further extension due to the reduction of funds and that his appointment shall cease from 1.2.1990. 6. Aggrieved by the same, the petitioner raised Industrial Dispute before the Labour Court. The Labour Court on considering the material contentions, came to the conclusion that the appointment of the petitioner was only project based and that when once the project was completed, the services of the persons appointed under the said project also would come to an end. Labour Court has also found that the project itself was started for training village people in the special sphere of the activities and that the project was never considered to be a permanent institution and therefore, the employees engaged under that project cannot claim permanent status. With the result, the award went against the employee and hence the above writ petition. 7. With the result, the award went against the employee and hence the above writ petition. 7. Mr.R.Ganesan, learned counsel appearing for the petitioner contends that the second respondent was indulging in unfair labour practice. Having appointed the petitioner as a probationer for a period of one year in the year 1984 after completion of training in 1983, till 1990, the period of probation was extended every year. In spite of the fact that he has put in more than 7 years of service, he has been terminated and that as the requirements under Section 25-F of the Industrial Disputes Act have not been complied with by the respondents, the petitioner is entitled to be reinstated. 8. Mr.Sanjay Mohan, learned counsel appearing for the second respondent contends as follows:- The petitioner was appointed only on the basis of the funds allotted to the second respondent under the scheme of RUHSA. It was a project based institution/department of the second respondent and even though RUHSA was treated as a Department of CMCH, the functions of the said department would come to an end, when once the project was completed. Enough materials were placed before the Labour Court, which would go to show that RUHSA was a project based scheme and that the scheme came to an end during the year 1990, when the sponsors of the project in England expressed their option not to continue the project. Therefore, with the closure of the project, the petitioner, who was appointed only for the project, cannot claim any right to be continued as an employee under the CMCH establishment. Learned counsel further contends that the fact that the petitioner had exercised his option to be governed by the rules of CMCH, it will not make any difference. Considering that the project itself has come to an end, and the department itself having become non functional with the closure of the project, the petitioner cannot claim any right to be continued in service. His services cannot be extended even beyond the closure of the project, under which alone the petitioner came to be appointed. 9. I have heard the submissions of both sides. 10. It is true that the initial appointment of the petitioner was made only under RUHSA rules as a Trainee Supervisor/Live Stock Assistant. His services cannot be extended even beyond the closure of the project, under which alone the petitioner came to be appointed. 9. I have heard the submissions of both sides. 10. It is true that the initial appointment of the petitioner was made only under RUHSA rules as a Trainee Supervisor/Live Stock Assistant. Subsequently, by order dated 11.5.1984, the petitioner was informed that he will be on probation for one year with effect from 1.3.1984 and that he was bound by RUHSA Staff Service Rules. It is only subsequently, the petitioner was called upon to exercise his option either to remain with RUHSA Rules or to come under CMCH Rules. The option to be exercised by the employees as extracted above would show that they were given option either to remain under the project or not. Otherwise, there was no purpose in calling for an option, if the petitioner was to continue only under the RUHSA Rules. The very purpose of calling for the option was only to give liberty to the employees either to remain with RUHSA Rules/project or to come under CMCH Rules/establishment. There is no dispute over the fact that the petitioner had exercised his option to come under regular CMCH establishment. Having regard to the said fact, the contention of the learned counsel for the respondents that he still continued to be in service only under the RUHSA Project and that therefore, he cannot seek to be the employee of CMCH after the closure of the RUHSA Department, cannot be accepted. It is true that it is within the discretion of CMCH to have kept the petitioner either under RUHSA project or under CMCH establishment in their administrative discretion as long as the project continued. But when once the RUHSA project concluded, it was obligatory on the part of the respondents, to have transferred the petitioner to any other department of CMCH. That would be the natural out come of the petitioner having exercised his option. He cannot be treated as an employee under the project after he had exercised his option. 11. But when once the RUHSA project concluded, it was obligatory on the part of the respondents, to have transferred the petitioner to any other department of CMCH. That would be the natural out come of the petitioner having exercised his option. He cannot be treated as an employee under the project after he had exercised his option. 11. As regards the contention raised by the learned counsel for the respondents that he was trained only to be a Live Stock Assistant and therefore, there was no other assignment suitable to him under CMCH and when once the project was over, there was no possibility of posting the petitioner to any other department, I am unable to sustain the said contention for reasons already stated. The petitioner is a B.Sc.,Graduate and he could be fitted in any other appropriate posting in the college or Hospital under CMCH. The petitioner is entitled to succeed. The action of the respondents in having continuously extended the probation period for nearly 7 years cannot also be accepted. The petitioner is therefore entitled to be regularised in the service. 12. In result, the award of the Labour Court, Vellore in I.D.No.421 of 1993 dated 5.10.1994 is set aside and the petitioner is entitled to be reinstated in any suitable post and be regularised in the service of CMCH/second respondent, with all consequential benefits of continuous service. 13. However, taking into account that the petitioner has not been rendering any service, from the date of his termination, he will not be entitled to any backwages. The writ petition is allowed subject to the above observations. No costs.