Returning to the road

The Madras High Court overturns a tribunal order and reinstates over 9,000 road workers retrenched by the State government.

in Chennai

JUSTICE has at last been done to about 10,000 road workers who were literally thrown on the street en masse two years ago by an executive order of the Tamil Nadu government. These workers, who were appointed by the State Highways Department in 1997 for road maintenance, were among the first victims of the Jayalalithaa government's dogged pursuit of the policy of privatisation since 2001. A Division Bench of the Madras High Court ordered their reinstatement within three months with back wages and continuity of service and termed as "misadventure" the government's abolition of the post of "gang mazdoor" [G.O.Ms.No.160 (Highways) dated September 5, 2002] on the grounds of economy, which resulted in the loss of jobs to thousands of workers.

"As the Government Order is wholly illegal and invalid in law, the consequent orders of termination issued to 9,183 gang mazdoor are set aside," ruled the Bench of Justices P.K. Misra and F.M. Ibrahim Kalifulla. The court held that the termination was in "gross violation of the provisions of the Industrial Disputes Act" and allowed a batch of writ appeals against an April 16, 2003, order of the State Administrative Tribunal. The order upheld the abolition of the posts, but directed the State government to pay a sum equivalent to six months' salary to each gang mazdoor, irrespective of whether the worker had filed an original application of the Tribunal or not. The Tamil Nadu Highways Roadways Employees' Association was among the principal appellants.

For the retrenched workers, who have also been mounting pressure on the government through relentless struggles, the judgment would mean an end to their two-year ordeal. Trade union leaders hailed the judgment as a "whiff of fresh air" and appealed to the government to implement it immediately instead of treating it as a matter of prestige and preferring an appeal. The judgment contains several significant observations and also marks a break from the adverse judicial and executive decisions that government employees had to face in the past two years.

THE plight of gang mazdoors has to be seen in the light of their struggles of the past several decades to get their services regularised. Until 1977, gang mazdoors were recruited by work-charged departments of the government, mostly on a temporary basis, for specific projects and works. After the completion of the project, the workforce was generally disbanded. Of course, in certain cases these workers were engaged in other projects, resulting in a continuity even in their temporary assignments. There were two categories of workers, provincial and non-provincial, and two modes of payment of wages - one on the basis of a time-scale and the other fixed pay. In 1977, following a series of struggles by the workers, the government regularised their services and made them eligible for all benefits enjoyed by government employees. It, however, stopped the recruitment of gang mazdoors.

In 1987, the government passed an order with a view to creating 10,636 permanent posts of gang mazdoors. In 1992, by another order it imposed a ban on the filling of the posts. In 1996, at the instance of Chief Minister M. Karunanidhi, the government made a general assessment of the number of gang mazdoors needed to maintain the 60,000 km of road in the State. The number that would be needed was estimated at 14,872. Through two G.Os, the government created 4,280 posts, to be filled along with the little over 5,000 existing unfilled posts. It also announced, through separate G.Os, that each worker would be paid Rs.1,500 a month and that after the successful completion of a year of probation the worker would be put on the regular scale.

The recruitment was to be done locally, and the upper age limit was fixed at 35. The government also exempted this recruitment from the stipulation that all applications should be routed through employment exchanges. Division-level officials of the Highways Department selected persons with the required qualification on a 1:3 ratio and the final selection was done by a draw of lots.

The selected workers were regularised subsequently and had served for four years, enjoying all the benefits that came with regular service, until the September 5, 2002 G.O. abolished the post.

The Jayalalithaa government's decision to abolish the post stemmed from its decision to privatise road maintenance works. Public Works Minister O. Panneerselvam announced a major policy change in this regard in the State Assembly on April 29, 2002, five months before the axe fell on the gang mazdoors. He said the government had decided to involve the private sector in an integrated improvement-cum-maintenance contract for State highways. Significantly, almost a year after the abolition of the posts, the government signed an agreement with the World Bank (on August 28, 2003) to facilitate the implementation of a Rs.2,118-crore Tamil Nadu Road Sector Project (TNRSP).

The dismissed gang mazdoors challenged the termination of service before the State Administrative Tribunal. They questioned the validity of the G.O. abolishing the post, on the grounds that it violated Article 14 of the Constitution. The Tribunal, on April 16, 2003, accepted the government's submission that the abolition had been done in pursuance of one of its "policy decisions" and stated that it could not interfere with "policy decisions of the government".

The Division Bench of the High Court, hearing writ appeals against the Tribunal judgment, did not agree with the government's contention that the Highways Department was a part of the government and was not covered by the Industrial Disputes Act. It cited the landmark judgment in the Bangalore Water Supply case (1978) by a Constitution Bench of the Supreme Court to state that "all functions of the State need not necessarily be sovereign in nature, merely because such functions are either organised or administered by the State. In fact, in the Bangalore Water Supply case, the Honourable Supreme Court made it clear that while applying the dominant nature test, even in the departments discharging sovereign functions if there are units which are industries and they are substantially severable, they can be considered to be an industry to come within Section 2 (1) of the Industrial Disputes Act."

The Division Bench ruled that maintenance of road and allied activities carried out by the dismissed gang mazdoors were a "manufacturing process", thereby bringing it within the ambit of the definition of industrial establishment as defined in the Industrial Disputes Act. The provisions of the Act were, therefore, applicable to the Highways Department of the Tamil Nadu government. Also, gang mazdoors were "workmen" as defined in the Act.

Explaining the significance of the judgment, advocate R. Vaigai, who appeared for the petitioners, said it had really called the government's bluff in many respects. More than anything else, the High Court went by the government's own conduct to show that road maintenance was not a sovereign function. The Bench contended that if it was a sovereign function, it should be an inalienable function, something that could not be performed by a person who is not in governance. But here, after abolishing the posts the government itself had contracted out these jobs and so it was not a sovereign function and therefore it could not be exempt from the Industrial Disputes Act.

The Bench also categorically declared that the government's action in abolishing the posts was "a misadventure", because neither the reasons nor the manner in which the actions had been taken could be justified, said Vaigai. Since the Industrial Disputes Act covers the government, it ought to have followed the procedure set in the Act if it wanted to retrench workers. The Bench also said that the government in such respects should also be a "model employer".

The Bench did not agree that the procedure followed in the 1997 recruitment was faulty. The procedure had been laid out clearly and there was transparency in the whole system, it held. The contention that the appointments were illegal was therefore not tenable.

The argument that the courts could not interfere with "policy decisions" was also brought in. The tribunal upheld the contention. The government contended that the abolition of the post was a policy decision taken in the interest of the economy. Since the expenditure on the salary front for these works was going beyond manageable limits, the government thought it necessary to abolish the post. The court steered clear of these arguments, but was categorical that whatever action the government took should be in accordance with the law of the land. Referring to the government's stand that the reason for the abolition of the post was the annual entailment of an expenditure running to Rs.75 crores, the Bench observed, "If the rise in the salary component was due to spiralling prices of commodities and consequent revision of wages, the gang mazdoors cannot be blamed."

The Bench said it could never be held that there was lack of performance by the mazdoors, warranting removal from service.