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An Mokamad Jinna v. General Manager (Regional Services) - W.A. No.871 OF 2005 [2005] RD-TN 321 (25 April 2005)


Dated: 25/04/2005


The Hon'ble Mr. MARKANDEY KATJU, Chief Justice and

The Hon'ble Mr. Justice F.M. IBRAHIM FALIFULLA W.A. No.871 OF 2005

An Mokamad Jinna

(formerly A. Mohamed Ali Jinna) ... Appellant -Vs-

General Manager (Regional Services)

(formerly Executive Director)

Indian Oil Corporation Limited

139 Nungambakkam High Road

Madras 600 034 ... Respondent Appeal under Cl.15 of the Letters Patent against the order dated 25-6-2004 in W.P. No.14734 of 1996.

For Appellant :: Mr. G. Ramachandran For Respondent :: ---


(Delivered by the Hon'ble The Chief Justice)

This writ appeal has been filed against the impugned order of the learned single Judge dated 25-6-2004.

2. We have heard the learned counsel for the appellant and carefully perused the impugned order and the records.

3. Appellant/writ petitioner had filed the writ petition for a Writ of Mandamus directing the respondent Corporation to make him a permanent employee as per Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workman) Act 1981. The appellant claimed that he joined the services of the respondent Corporation as a Messenger to collect Consignee Receipt Certificates (CRCs) from Madras-based consignees and to hand them over to the respondent Corporation. It is his claim that he was paid the remuneration of Rs.70/- per day, which was increased from time to time. It is his further claim that he has worked continuously in the respondent Corporation for more than 480 days and, therefore, he is entitled to be made permanent as per Section 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to workmen) Act, 1981.

4. A counter-affidavit was filed by the respondent Corporation in which it is stated that the appellant/petitioner was only a contractor and not an employee of the respondent Corporation and, therefore, he cannot invoke the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1991. The appellant/petitioner was being used as a courier and he was paid on the visit basis and not on day to day basis or weekly or monthly basis.

5. In determining the relationship of a person with an employer, viz. whether he is an employee or a contractor all relevant facts and circumstances are required to be considered including the terms and conditions of the contract. Originally the test utilised by the courts for determining whether a person was an employee or an independent contractor was the Supervision and Control Test under which it was held that while a contractor is only told what to do, an employee is also told how to do it, i.e. the mode and the manner in which the work to be done. The aforesaid Supervision and Control Test broke down in certain cases, e.g. The Captain of a Ship and this paved way for the other tests, e.g., Part and Parcel of the Organisation Test or Integration Test by which the relationship is determined by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relevant for this purpose are - who has the power to select and dismiss, to pay remuneration, supply tools and materials, etc. - vide (2004) 3 SCC 514 (Workmen of Nilgiris Cooperatives Marketing Society v. State of Tamil Nadu); JT 2003 (8) SC 345 (Ram Singh and others v. Union Territory, Chandigarh). The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before the industrial adjudicator and the same cannot be gone into by this Court under Art.226 of the Constitution. Hence, the appellant/petitioner is at liberty to approach the appropriate authority by raising an industrial dispute under the Industrial Disputes Act and if he does so, the same will be decided expeditiously. With these observations, the writ appeal is dismissed. Connected WAMP Nos.1642 and 1643 of 2005 are closed. Index:Yes




General Manager (Regional Services)

(formerly Executive Director)

Indian Oil Corporation Limited

139 Nungambakkam High Road

Madras 600 034


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