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THE MANAGEMENT OF TIRUCHENGODE versus THE INSPECTOR OF LABOUR

High Court of Madras

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The Management of Tiruchengode v. The Inspector of Labour - Writ Petition No.16405 of 1995 [2002] RD-TN 468 (12 July 2002)



In the High Court of Judicature at Madras

Dated: 12/07/2002

Coram

The Hon'ble Mr. Justice P. SATHASIVAM

Writ Petition No.16405 of 1995
and
W.M.P.No.26039 of 1995


The Management of Tiruchengode
Agricultural Producers
Co.operative Marketing Society
Ltd., rep. By its Special Officer,
Thiruchengode 637 211. .. Petitioner

vs.

1.The Inspector of Labour
(Authority constituted under the
Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to
workmen) Act, 1981),
Office of the Inspector of Labour, Salem.

2.S. Kandasamy and 18 others and
N. Ramasamy and 27 others. .. Respondents

Petition filed under Article 226 of the Constitution of India praying
for issuance of writ of certiorari as stated therein.

For petitioner : Mr. R. Viduthalai

For respondents: Mr. S. Ayyathurai for R.2

:ORDER



The Management of Tiruchengode Agricultural Producers Co.operative Marketing Society Ltd., aggrieved by the order of the Inspector of Labour (Authority constituted under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 in C.P.S.A.No.8319 of 1992 dated 27.09.1995, has filed the above writ petition to quash the same on various grounds.

2. The case of the petitioner Society is briefly stated hereunder:-

The petitioner, the Tiruchengode Agricultural Producers Co. operative Marketing Society is a Co.operative Society governed by the Tamil Nadu Co.operative Societies Act, 1983. The function of the petitioner Society includes the marketing of the agricultural produce such as cotton, groundnut, gingelly, castor seeds, coconuts etc., for fetching maximum fair price to the farmers. The distribution of agricultural inputs like seeds, fertilizers, pesticides, agricultural implements etc., to the farmers and grant of loans to the farmers on the pledge of produce are also the functions of the Society. The petitioner Society employees more than 250 persons. Apart from regular employees, contract employees are also engaged in loading and unloading operations. Such persons are employed through contractors, as and when occasion demands. These contract employees are paid on piece rate basis calculated on the head load. They are paid at the end of every week and are free to carry the load of any other persons like the wholesaler, trader or supplier of agricultural products, who may require their services. They are not bound to report for duty every day. Their services are summoned only when there are loading and unloading operations. They are not on the pay rolls of the petitioner Society. They are paid through the contractors. They were not in continuous service for any period. None of the contract employees have completed 48 0 days of continuous service in a period of 24 calendar months. The completion of 480 days of continuous service is a sine-qua-non for claiming the status of a permanent employee as per the provisions of Section 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 (in short "the Act"). None of the employees who filed the petition claiming permanent status pleaded completion of 480 days of continuous service in a period of 24 calendar months. The second respondent claimed a permanent status by making representation to the petitioner Society. The said representation was rejected on account of the fact that none of the persons were regular employee of the Establishment, as they were either the contractors or the contract employees. Aggrieved by the rejection of the request, the second respondent filed a petition before the first respondent for adjudication. After holding that there was no relationship of employer and employee as between the parties, none of the persons completed the period prescribed in the relevant statute, allowed their application by order dated 27.09.1995, which is impugned in this writ petition. The order of the first respondent suffers from illegality warranting interference by this Court, hence the present writ petition.

3. The Secretary of the second respondent Union filed a counter affidavit disputing various averments made in the affidavit filed in support of the above writ petition. It is stated that 45 Kalasi workers are not independent contractors working for the members of the Society and the merchants; on the contrary they are all workmen working for the Society and they are all paid by the Society for the work done by them. All the workmen concerned have been working continuously ranging from 8 years to 30 years. The first respondent has taken into account all the relevant oral and documentary evidence and on which considered relevant contentions and found that the workers are allotted by the management and the equipments are given by the management and the management has been wrongfully denying permanent status, which is in violation of the law.

4. In the light of the above pleadings, I have heard the learned counsel for the petitioner Society and second respondent Union.

5. Mr. R. Viduthalai, learned counsel appearing for the petitioner Society, after taking me through the application submitted by the Union, counter statement by the petitioner and the impugned order of the first respondent authority would contend that in the absence of any pleading for 480 days of continuous work in a period of 24 calendar months by the members of the second respondent Union and in the absence of any reference to the oral and documentary evidence, the finding of the first respondent is a perverse one and the same cannot be sustained. He also contended that in the absence of individual application by the workmen concerned highlighting their entitlement, the application filed by the Union cannot be maintained.

6. On the other hand, Mr. S. Ayyathurai, learned counsel appearing for the second respondent would contend that in the light of the individual particulars furnished in the application, the Union is entitled to represent and the first respondent is fully justified in passing the impugned order conferring permanent status on the workmen concerned.

7. I have carefully considered the rival submission.

8. Before the Inspector of Labour, Salem - first respondent herein, the Authority constituted under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, the Tiruchengode - Sankari Co.operative Labour Union through its Secretary has filed C.P.S.A.No.8319 of 1992 under Section 3 read with Section 5 ( a) of the Act, claiming permanent status to the workmen mentioned therein with effect from the year of their working under the Society. The said application was resisted by the Society by filing a counter statement. Before considering the said application, it is useful to refer some of the provisions from the Act. " Sub-section (3) of Section 1 of the Act applies to every industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than fifty workmen were employed on any day of the preceding twelve months. If any question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently the decision of the Government thereon shall be final.

Sub-section (4) of Section 2 defines "workman".

" 2 (4) workman" means any persons employed in any industrial establishment to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied (and includes a badli workman),

but does not include any such persons,--

(a) who is employed in the police service or as an officer or other employee of a prison; or

(b) who is employed mainly in managerial or administrative capacity; or

who, being employed in a supervisory capacity, (draws wages exceeding three thousand and five hundred rupees per mensem) or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." Sub-section (1) of Section 3 of the Act speaks about Conferment of permanent status to workmen.

" Section 3 (1). Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment shall be made permanent. " As per Section 7, the provisions of the Act shall not apply to workmen employed in certain industrial establishment. -- " Nothing contained in this Act shall apply to workmen employed in an industrial establishment engaged in the construction of buildings, bridges, roads, canals, dams or other construction work whether structural, mechanical or electrical. "

Among the Rules framed in exercises of powers conferred by Subsection (9) of Section 10 of the Act, we are concerned with Sub-rules (1) and (4) of Rule 6. " Rule 6. Maintenance of registers by employers.-- (1) Every employer of an industrial establishment shall maintain a register of workmen in Form 1 and shall produce the register whenever it is required by the Inspector having jurisdiction over the industrial establishment.

(2)....

(3)....

(4) Any employee who finds his name not entered in the list referred to in sub-rule (2) or finds that the entries have not been made correctly or finds that though entries regarding his service have been made correctly but he has not attested the entries in the register of workmen inform 1 may make a representation to the Inspector concerned. The Inspector after examining the representation or after making enquiries may issue suitable directions to the employer for the rectification of the register in Form 1 or for the issue of orders conferring permanent status to the workman concerned. "

9. A reading of all the above provisions clearly show that notwithstanding anything contained in any law, every workman who is in continuous service for a period of 480 days in a 24 calendar months in an industrial establishment shall be made permanent. It is true that it is for the individual workman to apply before the authority by furnishing the required details, namely number of days in which he worked in the industrial establishment supported by acceptable material. Mr. R. Viduthalai, by pointing out that the application having been made only by the Union and in the light of the above referred statutory provisions, vehemently contended that the application by the Union itself is not maintainable.

10. In support of his contention he relied on the Division Bench decision of this Court in the case of Tamil Nadu Civil Supplies Corporation Workers Unions vs. Tamil Nadu Civil Supplies Corporation reported in 1997 (III) C.T.C. 535 and the affirming judgment of the Supreme Court in the case of Tamil Nadu Civil Supplies Corporation Workers Union vs. Tamil Nadu Civil Supplies Corporation Ltd., and others reported in 2001 (2) C.T.C. 92. In that case, the Workers Union of Civil Supplies Corporation filed a writ for mandamus forbearing the Tamil Nadu Civil Supplies Corporation to oust any of the Bill Clerks, Helpers and Watchmen working in the Direct Purchase Centres under the control of the Corporation who have rendered 480 days of service in two consecutive years or who have been granted permanent status by the Inspector of Labour, Thanjavur. The learned single Judge dismissed the writ petition in limine, against which the Union preferred a writ appeal before the Division Bench. The Division Bench after holding that the writ petition seeking permanent status beyond the scope of Section 12 (3) settlement which binds all the temporary / ousted employees of the "Direct Purchase Centres" is liable to be dismissed and the termination of the services of the seasonal employees are therefore bona fide, legal and in order and therefore do not call for any interference by this Court, dismissed the writ appeal. The workers Union took the matter to the Supreme Court, which is reported in 2001 (2) C. T.C. 92 (cited supra). In para 7, the Hon'ble Supreme Court has stated that,

"7. ..... The Division Bench also agreed with the conclusion of the single Judge that the since the services of the employees had been terminated, it was for the employees to seek their remedies in a manner known to law. We find no infirmity with the reasoning of the Division Bench and see no reason to interfere. "

11. The definition of "workman" in Section 2 (4), the language used in Section 3 (1) of the Act and Rule 6 (4) show that it is for the individual employee to make a representation in Form I to the Inspector concerned. Thereafter, the Inspector after examining the representation and after making enquiries, issue suitable directions to the employer for the rectification of the register in Form I or issue orders conferring permanent status to the workman concerned. However, as rightly argued by Mr. S. Ayyathuri, nowhere there is any prohibition or restriction involving the Union for the cause of individual workman. In other words, if the required materials, namely details regarding number of days the workmen worked in an industrial establishment, the year on which they were asked to work and other details and the same are substantiated before the authority, it is for the authority to decide and issue suitable direction to the employer either for rectification of the register in Form I or order conferring permanent status to the workmen concerned. Inasmuch it is the required details that has to be placed and substantiated before the authority and not otherwise, accordingly, I hold that the application made by the Tiruchengode-Sankari Labour Union through its Secretary claiming permanent status in respect of the workmen mentioned in the annexure to the said petition is maintainable. In the Division Bench as well as before the Supreme Court though it is stated that against the order of termination it was for the employees to seek their remedies in the manner known to law, the Court had no occasion to consider similar question whether the Union can make an application on behalf of certain workmen for conferment of permanent status under Section 3 (1) of the Act. Inasmuch as the above enactment is beneficial legislation intended to safe guard the interest of the workmen, the same has to be interpreted in such a manner.

12. Coming to the merits of the order passed, according to the Union, the Society employs about 250 persons of whom are 47 Kalasis, of the 47 Kalasis 28 are employed at Konganapuram and 19 are at Tiruchengode. The details of 47 Kalasis are given in the annexure to the said application. In the annexure the Union has furnished their names, their father's name, the year on which they were given employment in the Society. Apart from the other details, such as entitlement and also the counter statement of the Society opposing their move, on the side of the Union 6 persons were examined as P.W.1 to P.W.6. The Union has also produced documents as Exs.P.1 to P.23 in support of their claim for permanency. On the side of the Society, three persons were examined as R.W.1 to R.W.3 and also marked Exs.M.1 to M.3. Though the Inspector of Labour, Salem has referred the general proposition relating to existence of employer - employee relationship, selection of persons, payment of remuneration, right to control, right to pass suspension or termination order etc., absolutely there is no discussion regarding the materials placed by both parties. In other words, as rightly contended by Mr. R.Viduthalai, the Inspector of Labour has not considered the oral and documentary evidence let in by both side. Without considering the evidence on record, merely on the basis of general principle and without a specific finding, namely whether each workman has completed 480 days in a continuous period of 24 calendar months as provided in Sub-section (1) of Section 3 of the Act, has directed the Society to give permanent status to all the workmen concerned. The said conclusion is a perverse one and not supported by any material, accordingly, the same is liable to be set aside. After referring the general principle, it is for the Inspector of Labour to verify whether each workman has satisfied the fact that he is in continuous service for a period of 480 days in a 24 calendar months. It is also open to the authority to make enquiries and verify the records from the employer in order to arrive such a conclusion. The said procedure has not been followed by the first respondent.

13. In the light of what is stated above, while holding that the application made by the Tiruchengode - Sankari Co.operative Labour Union under Section 3 read with Section5 (a) of the Act is maintainable, the ultimate conclusion arrived at by the Inspector of Labour cannot be sustained. The order in C.P.S.A.No.8319 of 1992 dated 27.09.1995 is quashed and the matter is remitted to th e first respondent to pass fresh orders after affording opportunity to both parties. The first respondent is also directed to consider and pass orders as mentioned above within a period of four months from the date of receipt of a copy of this order. The writ petition is allowed to the extent mentioned above. No costs. Consequently, connected WMP., is closed.

Index:Yes

Internet: Yes

kh

12.07.2002

To

The Inspector of Labour

(Authority constituted under the

Tamil Nadu Industrial Establishments

(Conferment of Permanent Status to

workmen) Act, 1981),

Office of the Inspector of Labour,

Salem.

P. Sathasivam,J.,

Order in

W.P.No.16405 of 1995


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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