Madras High Court
The Managing Director vs Shanmugam (Deceased) on 30 September, 2019
Equivalent citations: AIRONLINE 2019 MAD 1443
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.09.2019
CORAM
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Appeal Nos.2871 and 2872 of 2018
&
C.M.P.Nos.23820,23822 and 23823 of 2018
The Managing Director
Tamil Nadu State Transport Corporation Ltd
Coimbatore Division
Erode Region
Chennimalai Road
Erode. ... Appellant in both
the writ appeals
Vs
Shanmugam (deceased)
Substituted by Tmt.Karpagavalli ... Respondent in
W.A.No.2871 of 2018
(Vide order, dated 15/11/2018 by
SMKJ & SPJ)
and
P. Subramaniam ... Respondent in
W.A.No.2872 of 2018
Prayer:- Appeals filed under Clause 15 of Letters Patent against the
order dated 11/1/2013, made in W.P.No.31322 and 31323 of 2005.
For appellant ... Mr.T.Chandrasekaran
For Respondents ... Mr.V.Ajay Khose
http://www.judis.nic.in -----
2
COMMON JUDGMENT
(Judgment of the Court was made by S.Manikumar,J) Tamil Nadu State Transport Corporation Ltd, Chennai, has challenged an order, dated 11/1/2013, in W.P.Nos.31322 and 31323 of 2005, by which a learned Single Judge allowed the writ petitions and directed the appellant herein to give the benefit of the order, dated 31/5/2005, passed by the Authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981.
2. Brief facts leading to the appeal are as under:-
Respondents joined as Conductors in the appellant Corporation on 04.11.1993 and 31.01.1994, respectively, on daily rated paid basis.
Appellant Corporation terminated the services of the respondents orally on 14.07.1996 and 23.07.1996, respectively, without any justifiable reason and also without complying with the mandatory conditions stipulated under Sec.25f of the I.D.Act. Therefore, respondents filed W.P.No.4172/97, to declare to reinstate them with backwages.
3. Vide, order, dated 17/9/1998, writ Court directed the appellant Corporation to undertake an exercise to find out as to whether the respondents had worked for more than 240 days in a year. Writ Court, http://www.judis.nic.infurther directed that had the respondents worked, for more than 240 days 3 in a year, the appellant should reinstate the respondents with backwages and other benefits. If they had worked for less than 240 days in a year, appellant should give preference in future vacancies, as contemplated under Section 25 H of the I.D.Act.
4. As the respondents had worked for more than 240 days in a year, appellant reinstated them in service from 10.04.1999, but their services were not regularised. Others, similarly placed employees namely M.Thangavelu, S.Guhanathan, G.Rajendran, R.Palanisamy, terminated, were also reinstated, regularised and given scale of pay and other benefits.
Therefore, the respondents approached the authority under the Tamilnadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 along with 19 other workmen and prayed for permanency. Vide, proceedings, dated, 31.05.2005 the authority directed the appellant to confer permanency of the respondents, from the date of completion of 480 days of service in 24 calendar months. Respondents submitted a representation dated 04.07.2005. It is the case of the respondents that instead of replying, the appellant Corporation pressurised the respondents to give a letter agreeing to forego the benefits of permanency to work as daily rated monthly paid workmen from 01.09.2005 for issuance of a Writ of Mandamus to direct the appellant to regularise the services of the respondents in time scale post and to grant all attendant benefits on http://www.judis.nic.in 4 completion of 480 days of service as per order, dated 31.05.2005.
5. Before the writ Court, appellant Corporation has filed a counter affidavit and the same reads thus:-
“2. It is true that the Inspector of Labour, Erode, in Lr.No."64609/2003, dt.31.5.2005 directed that the petitioner may be made permanent on completion of 480 days in two years from the date of appointment. However subsequent to this order {I.e. on 31.08.2005) a settlement was arrived at between the Management of the various Transport Corporations and all the Employees Union Federation Under Section 12(3) of the industrial Distputes Act 1947.
In this settlement, it was agreed that the casual Labourers/employees working in all the Transport Corporations would be appointed as daily paid employees w.e.f 1/9/2005 and that they would be made permanent on completion of 240 days of service from the date of appointment on a daily wages.
3. The orders of the' Inspector of Labour dt.31.05.2005 was superseded by the 12(3) settlement dt.31.8.2005. As the settlement dt.31.08.2005 is binding on the petitioner since the unions made a demand to make the casual employees permanent on completion of 240 days. After having elaborate discussion with the Trade Unions that the casual employees were not property recruited and appointed the Government had taken a decision on sympathetic ground in good gesture to appoint them initially as daily rated employees and then to make them permanent employees. In such circumstances, the petitioner is precluded from claiming the relief based on the orders of the Inspector of Labour, Erode dt.31.05.2005. Under such circumstances the Corporation had not filed any appeal against the orders of the inspector or Labour.
4. In accordance with the 12(3) settlement dt.31. 08.2005 http://www.judis.nic.in arrived at before the Joint Commissioner of Labour, Chennai, the 5 Petitioner was appointed as daily paid employee vide office order No.2846/P1/TNSTC/Coimbatoee/Erode Region/05, dt 1/9/2005 along with other nineteen persons. The other 18 persons had agreed to accept the daily paid order. They were made subsequently permanent on completion of 240 working days
5. As per the order vide Ref.No, 19077/P1 /PD2/ TNSCT/CBE/E4/07, Dt.9.7.2007 the individual was confirmed and his basic pay is Rs.4,290/- in the scale of pay Rs.4290-60-4770-65- 5745.
6. The petitioner is not entitled to the relief claimed by him based on the orders dt.31.05.2005 of the Inspector of Labour. Erode. The 12(3) settlement dt.31.8.2005 is binding on the petitioner in letter and spirit”
6. Vide, common order, in W.P.Nos.31322 and 31323 of 2005, dated 11/1/2013, writ Court has passed the following order:-
“Tho ugh no tice has be en se rve d to th e res p ond e nt and t he name of the res p on d en t is prin ted , the res po nd e nt is n eith er ap pe arin g in pe rso n nor thro ugh c ou ns el. Con s eq ue n tly, with t he avai lab le re cord s , th ese writ p etiti on s ha ve to b e dis p o se d o f.
2. The writ petitions are filed for issue of a Writ of Mandamus directing the respondent to regularise the services of the respective petitioners in the time scale post and all attendant benefits on completion of 480 days of service as per order dated 31.05.2005.
3. The case of the petitioners before this Court is that they had joined the respondent Corporation in the year 1993 and 1994 respectively on daily rated basis. They had served without any break. However, their services were terminated orally on 14.07.1996 and 23.07.1996 respectively. Consequently, W.P. No. 4172/1997 was filed with the prayer to declare the termination as http://www.judis.nic.in illegal and for a direction to reinstate them with backwages. That 6 writ petition was disposed of by order dated 17.09.1998 with a direction to the respondent to find out whether the petitioners had served for more than 240 days in a year and if in the event of the petitioners having served for more than 240 days, they should be reinstated with backwages and other benefits. Subsequent to this, the petitioners were also reinstanted in service with effect from 10.04.1999. However, their services were not regularised.
Consequently, the petitioners had approached the authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 along with 19 other workmen with the prayer to confer permanency. The authority passed an order dated 31.05.2005 with a direction to the respondent to confer permanency from the date of completion of 480 days of service in 24 calendar months. Based on this order, the petitioners made representations through the trade union. However, the same were not considered. Consequently, these writ petitions are filed.
4. According to the learned counsel for the petitioners, in spite of the direction given by the statutory authority dated 31.05.2005, no orders have been passed.
5. Though notice has been served, the respondent is neither appearing in person nor through counsel. Since already, the statutory authority has passed an order with a direction to confer permanent status on completion of 480 days, a duty is cast upon the respondent to implement the same.
6. In view of this, the respondent is directed to give the benefit of the order dated 31.05.2005 to the petitioners within a period of 2 weeks from the date of receipt of a copy of this order. However, the respondent shall pay cost of Rs.1OOO/- to the petitioners. This cost is imposed for two reasons, the first reason is that though an order has been passed in the year 2005, even after the lapse of 7 years, it has not been brought to the notice of this Court whether that order has been implemented or any further steps have been taken as against that order and the second reason is that inspite of service of http://www.judis.nic.in notice, the respondent is neither appearing in person nor through 7 counsel. The writ petitions are accordingly allowed. No costs.
7. Being aggrieved by the order of the writ Court, the appellant Corporation has filed the instant writ appeals on the following grounds:-
(i). Writ Court has failed to note that the respondents were employed as Conductors from 1994 only on daily rated basis.
(ii). Writ Court has failed to note that there were 20 casual employees filed application before the competent authority, but pursuant to the order passed by the competent authority, 18 casual employees accepted 12 (3) settlement and did not file any writ petition before this Court, except the respondents. Learned counsel for the Transprot Corporation, fairly admitted that before the authority, appellant did not contest and the order become final.
8. Learned counsel for the respondents submitted that the respondents had worked for more than 240 days in a year, and they were reinstated in service from 10.04.1999, but their services were not regularised. Respondents approached the authority under the Tamilnadu Industrial Establishments (conferment of Permanent Status to Workmen) Act, 1981 along with 19 workmen and prayed for permanency. Vide proceedings, dated, 31.05.2005 the Authority directed the Appellant/Transport Corporation to confer permanency of the respondents, from the date of completion of 480 days of service in 24 calendar months.
Without complying with the order dated 31.05.2005, the appellant http://www.judis.nic.in 8 compelled the respondents to agree with the settlement dated 31.08.2005 agreeing to forego the benefits of permanency to work as daily rated monthly paid workmen from 01.09.2005. Against which, the respondents filed W.P.Nos. 31322 and 31323 of 2005, praying to regularise the services of the respondents in time scale post and to grant all attendant benefits on completion of 480 days of service as per order dated 31.05.2005.
9. In support of their contention, appellant has relied on a decision of this court in Management, rep. By its Managing Director, Tamil Nadu State Transport Corporation, Coimbatore Vs. Labour Inspector Authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, Coimbatore District, wherein the court held thus:
“ 4.Challenging the correctness of the orders passed by the learned single Judges, the Management has come up with these appeals.
5.The core question that arises for consideration in these appeals is as to whether the settlement arrived at between the Management and the Trade Union to which these workmen belongs, is binding on them, or the statutory benefit of conferring the permanent status on the workmen will prevail.
6.The learned counsel for the appellant-Management has relied upon the judgment of the Hon'ble Supreme Court in Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Limited, reported in 1990 CJ(SC) 67, in which it is stated that a http://www.judis.nic.in settlement arrived at in the course of conciliation proceedings 9 with a recognised majority Union will be binding on all workmen of the establishment, even those who belong to the minority Union which had objected to the same; that to that extent it departs from the ordinary law of contract. Relying upon the said judgment, the learned counsel has submitted that the case of the second respondents herein, lies in the similar footing and hence these appeals have to be allowed.
7.The learned counsel for the second respondent in each of these appeals, relied upon the judgment of this Court in Tata Tea Ltd. v. State of Tamil Nadu, reported in 2010-II-LLJ-762 (Mad), and submitted that a settlement cannot supersede the statutory right. He also relied upon a decision of this Court in Kumar Polydot Mills Ltd. v. Dy.Chief Inspector of Factories, reported in 2010-III-LLJ-756 (Mad) and submitted that the contention that the settlement provided a scheme of absorption and therefore, they need not be made permanent cannot be accepted in the light of the amendment made to Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, whereby the Explanation II was added by the Amending Act 44/1985 and Section 3 will henceforth override any settlement.
He further submitted that when the above said amended provisions were challenged before the Hon'ble Supreme Court, the Act was held to be intravires of the Constitution by the Hon'ble Supreme Court in State of Tamil Nadu and others v. Nellai Cotton Mills Ltd and others, reported in 1990 (2) SCC 518. For this, he relied upon the order passed by this Court in The Management of Tamil Nadu Civil Supplies Corporation Ltd. v. Inspector of Labour, in W.P.No.4371 of 1998 dated 30.07.2008, and submitted that objections based on the award and settlement by the learned counsel for the Management must necessary fail and these writ appeals have to be dismissed.
8.The learned Special Government Pleader appearing for http://www.judis.nic.in the first respondent in all these appeals, has submitted that 10 between the year 1999 and 2005, viz. till the end of the Section 12(3) settlement reached between the Management and the Unions, there was a total ban on recruitments by the Government and as such, conferment of permanent status to the workmen in the present cases, does not arise at all.
9.We have given our anxious consideration to the submissions made by the learned counsel on either side and perused the materials available on record carefully and meticulously, with regard to the operation of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and also Section 12(3) Settlement arrived at between the Management and the Unions.
10.As projected by the Management, between the years 1999 to 2005 there was a ban on recruitments by the Government, during which period the private respondents alleged to have been working for 480 days within a period of 24 calendar months. However, permanent status cannot be conferred during the currency of the said ban period from the year 1999 to 2005. It is not disputed by the learned counsel for the workmen that the alleged dates of conferment of permanent status on these workmen, falls during the ban period. When such being the case, we find no hesitation to come to the conclusion that permanent status cannot be conferred on the workmen, on the dates falling within the ban period.
11.In view of the above stated circumstances, we hereby allow these appeals, setting aside the impugned orders passed by the learned single Judges. Thus, the orders passed by the first respondent herein, which were impugned in the writ petitions under challenge in these appeals, dated 30.07.2009 are restored. No costs. Consequently, the connected miscellaneous petitions are closed.
http://www.judis.nic.in 11
10. In the reported judgment, between 1999 and 2005, there was a ban on recruitment during the relevant period and hence court held that conferment of permanent status does not arise. Whereas, in the case on hand, the respondents were initially appointed as Conductors on 4.11.93 and 31.1.94 respectively on daily rated basis. Inspector of Labour, Erode, vide order dated 31.5.2005, directed that the respondents be conferred permanent status after completing 480 days in two years from the date of appointment and on the date of passing of the order, the settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947 was not there.
The settlement was arrived at on 30.8.2005, much later than the order. In the said settlement, it has been arrived at that casual labourers/employees working in all the Transport Corporations, would be appointed as daily paid employees with effect from 1.9.2005. But in the case on hand, contention of the respondents that they are already engaged as daily rated basis, has not been disputed. Their requirement to seek for conferment of permanent status, as per Section 3 of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, has arisen from the date of their appointment as daily rated employees, on completion of 480 days in 24 calendar months. That apart, settlement arrived at on 31.8.2005, cannot be applied retrospectively to an statutory order made earlier.
http://www.judis.nic.in 12
11. In Metal Powder Co. Ltd., Thirumangalam and another v. The State of Tamil Nadu and another [1985 (2) L.L.J. 376] wherein after referring to the similar provisions in other Labour enactments at paragraph 27, the court observed as follows:-
“ 27. That brings us to the second argument advanced by Mr. Chidambaram, viz., whether S. 3(2) supersedes the agreements which are already in force between the employer and the workman, so far as the petitioner in W.P. 5918/82 is concerned. There are three settlements dated 29th July, 1980, 23rd January, 1981 and 11th September, 1981 respectively. These settlements dealt with certain rights of the employees. By one of these settlements dated 29th July, 1980 the permanent strength of the workmen was fixed at 260 for 12,000 spindles. It was agreed that casual labour would be engaged in temporary vacancies in the absence of permanent workmen. There was an agreement with regard to the payment of consolidated wages to these casual workers. This agreement was to come into force on 1st July, 1980 and was to be effective for a period of three years. The other settlement dated 23rd January, 1981 covered 15 casual workers who were given the status of badlis. Their wages were fixed providing for progressive increase in their basic wage in future. Then there was the settlement dated 11th September, 1981 which fixed the workload and the basic wages of the permanent workers. It is alleged that these three settlements are still in force and whatever matters are covered by these settlements, would have to be http://www.judis.nic.in 13 excluded from the purview of the provisions of S. 3. Mr. Chidambaram's argument was also adopted by Mr. Dwarakanathan appearing in W.P. 10419/83. Learned Advocate General as well as Mr. Janakiraman contended that a settlement derives its force from the provisions of the Industrial Disputes Act, 1947, such as S. 18, and therefore the settlements must be treated as law. It appears to us that when the legislature incorporated a non- obstante clause in S. 3(1) and restricted the non-obstante clause only to "any law for the time being in force," S. 3(1) must be construed as evincing an intention that S. 3(1) will operate notwithstanding any statutory law to the contrary. Whenever the legislature has intended that either awards or agreements or decrees of courts were to be superseded by legislation, reference was always made in the non- obstante clauses to such agreements. By way illustration, we may refer to S. 14 of the Payment of Gratuity Act, 1972 which reads :
"The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."
It is obvious that when the legislature has made reference to "any instrument or contract having effect by virtue of any enactment other than this Act", the legislature had in mind the provisions of S. 18 of the Industrial Disputes Act under which the effect of the settlement between the employer and the workmen was to http://www.judis.nic.in be provided for. We may also refer to S. 40 of the Beedi 14 and Cigar Workers (Conditions of Employment) Act, 1966. S. 40(1) of the said Act, which is marginally headed, "Effect of laws and agreements inconsistent with this Act," reads as follows :
"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the terms of any award, agreement, or contract of service whether made before or after the commencement of this Act ....."
A similar provision is made in S. 37 of the Motor Transport Workers Act, 1961. This section reads as follows :
"The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service which are made before or after the commencement of this Act."
We are bound to take notice of the legislative practice that where the intention of the legislature is that a law is to have effect notwithstanding any award, agreement or contract of service, such an intention is expressed in clear and unambiguous words. Consequently, in the absence of reference to an award, an agreement or a contract of service in S. 3(1) and restricting the operation of the non-obstante clause in S. 3(1) only to "anything contained in any law for the time being in force", we must accept the contention of the learned counsel for the petitioner that S. 3 will not supersede a settlement between the employer and the employees in so far as the subject-matter of the settlement is conferment of http://www.judis.nic.in permanent status to the workmen. What is the nature of 15 the settlement in a given case and how far it covers the subject-matter in respect of which S. 3(1) has been enacted, will have to be determined on the facts and circumstances of each case.”
12. In State of Tamilnadu and Others vs. Nellai Cotton Mills Ltd and Others, (1990) 2 SCC 518, it has been held thus:
The Tamil Nadu Government passed an Act called the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 ("The Act") which came into force on 1st January, 1982. The Act was to confer permanent status to workmen in various industrial establishments who have put in continuous service for a period of 480 days in a period of 24 calendar months in an industrial establishment. Section 3 is a crucial provision in the Act. It reads as under:
"Sec. 3. Conferment of permanent status to workmen-- (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.
(2) A workman shall be said to be in continuous service for a period if he is, for that period, in uninter-
rupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lockout http://www.judis.nic.in or on account of non-employment or discharge of such 16 workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer, or a cessation of work which is not due to any fault on the part of the workman.
Explanation: For the purposes of this section the number of days on which a workman has worked in an industrial establishment shall include the days on which
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act XX of 1946) or under any other laws applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave, so, however, that the total period of such maternity leave does not exceed twelve weeks."'
2. The constitutional validity of the Act was challenged in a batch of writ petitions by various industrial establish- ments before the High Court of Madras. The High Court has allowed the writ petitions in part holding, inter alia, as follows:
"The Explanation to section 3 is incapable of enforcement and must therefore be held to be redundant.
http://www.judis.nic.in (2) The provisions of Section 3(2) of the Act are 17 valid except that the 'clause or on account of non-
employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer' is void on the ground that it amounts to an unreasonable restriction on the right of the employer.
(3) An apprentice or a badli worker could not be included in the 'workman' referred to in section 3(1) and (2) of the Act, and they will, therefore, be not entitled to the benefit of section 3.
(4) The Act will not supersede a settlement between the workers and the employer in so far as it deals with the subject of conferment of permanent status to workman.
(5) The Act cannot be held to be retrospective in character."
3. On 7th July 1985, the State of Tamil Nadu preferred this appeal challenging the judgment of the High Court. During the pendency of the appeal, the State also amended the principal Act in order to obviate the practical difficulties in implementing the provisions of the Act by reason of the judgment of the High Court.
4. The relevant portion of the Amending Act 44 of 1985 reads as under:
"2. Amendment of section 3, Tamil Nadu Act 46 of 1981-In section 3 of the Tamil Nadu industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981) (hereinafter referred to as the principal Act)-- http://www.judis.nic.in (1) in the Explanation, for the opening portion 18 beginning with the words "for the purposes of this section"
and ending with the words "include the days on which", the following shall be substituted, namely--
"For the purposes of computing the continuous service re- ferred to in sub-sections (1) and (2), a workman shall be deemed to be in continuous service during the days on which--";
(2) the Explanation shall be numbered as Explanation I and after Explanation I as so numbered, the following Explana- tion shah be added, namely:--
"Explanation II--For the purposes of this section, 'law' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act.
5. The Amending Act also contains provision for validation in the following terms:
"3. Validation--Notwithstanding anything contained in any judgment, decree or order of any court or other authority, all acts done or proceedings taken in pursuance of section 3 (including the Explanation) of the principal Act at any time on or after the 1st day of January 1982 and before the date of publication of this Act in the Tamil Nadu Government Gazette in relation to every workman in an industrial establishment for the purpose of conferment of permanent status to such workman by any officer or authority shall, for all purposes, be deemed to be, and to have always been, validly done or taken in accordance with law as if section 3 of the principal Act as amended by this Act had been in force at all material http://www.judis.nic.in times when such acts or proceedings were done or taken".19
6. Mr. Chidambaram learned counsel for the respondents argued that the Legislature while amending the principal Act with retrospective effect and also validating the acts done and proceedings taken under the principal Act appears to have accepted the judgment of the High Court so far as it relates to the offending portion in sub-section (2) of section 3, since no different meaning has been given to that portion from the one asserted by the High Court. But counsel for the appellant argued that the view taken by the High Court as to the scope of sub- section (2) of section 3 has to be determined notwithstanding the foregoing amendments. He claimed that non-employment or discharge of any workman for a period which does not exceed three months, and during which period a substitute has been employed in his place by the employer was intended to cover such cases where the employer deliberately discharges a workman in order to effect a break in service and again re-employs him as a fresh candidate without continuity of service.
7. We may first examine whether there is legislative approval of the High Court decision to the extent indicated by Mr. Chidambaram for the respondent. The Statement of Objects and Reasons accompanying the Amending Act 44 of 1985 reads as follows:
"STATEMENT TO OBJECTS AND REASONS The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981) has been enacted with a view to provide for the con- ferment of permanent status to workmen in the industrial http://www.judis.nic.in establishments in the State of Tamil Nadu. The judgment 20 of the Madras High Court rendered in a batch of Writ Petitions (Nellai Cotton Mills Ltd. Tirunelveli v. State of Tamil Nadu, (Writ Petition No. 5910 of 1982 etc.) had given rise to certain practical difficulties in implementing the provisions of the said Act. It has, therefore, been decided to amend section 3 of the said Act to remove the difficulties caused by the said judgment and confer the intended benefits on workmen.
2. The Bill seeks to achieve the above object."
8. When the Act has been judicially interpreted, Courts may study the subsequent action or inaction of the legislature for clues as to legislative approval or disapproval of judicial interpretation. After the statute has been judi- cially interpreted in a certain way and if the legislature by taking note of the judgment amended the statute appropriately so as to give it a different meaning from the one asserted by the courts, or not giving any different meaning from the view taken by the court, it may be argued with some justification that the legislature has expressly or by implication ratified the judicial interpretation. In the instant case, the legislature has expressly taken note of the High Court verdict and removed the practical difficulties caused thereby in implementing the provisions of the Act, by appropriate amendments. No provision, however, was inserted to re- write and validate the portion which was struck down by the High Court. It could therefore, be reasonably held that the legislature has accepted the judgment of the High Court to the extent indicated.
http://www.judis.nic.in
9. That apart, the view taken by the High Court, in 21 striking down a portion of sub-section (2), in our opinion, cannot be found fault with. Sub-section (2) of section 3 consists of three parts. The first part refers to interruption of service including service which may be interruption on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout. The second part Consists of the portion which has been struck down by the High Court as unreasonable restriction on the right of the employer. The third part refers to cessation of work which is not due to any fault on the part of the workmen. The provisions under the first and the third parts seem to be similar to the terms of section 25B of the Industrial Disputes Act which also provides for continuous service of the workman. The second part dealing with non-employment and discharge of a workman is distinct from the first and the third parts. It refers to the period during which there is no subsisting relationship of master and servant. We agree with the High Court that the word 'non-employment' would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service. much less in continuous service. Therefore, the period of non-employment or the period after discharge cannot be counted for the purpose of giving continuity of service. If the discharge is set aside and workman is reinstated by process known to law the work- man automatically gets continuity of service. No special provision is necessary for such purposes.
10. In any view of the matter we cannot therefore, http://www.judis.nic.in accept this appeal and is accordingly dismissed.
2213. In The Tamilnadu Civil Supplies Corporation, Modern Rice Mill Engineering Section Employees Union, rep by its Secretary, Sundarakottri vs. The Tamilnadu Civil Supplies Corporation rep. By its Managing Direcotr, No.42 Thambuswamy Road, Kilpauk, Madras, 2. The Deputy Chief Inspector of Factories, Thiruchirapalli, reported in 1998 Writ L.R.514, this court held thus:
“...
10. In this connection, it is relevant to refer the following provisions of the said Act.
"Conferment of permanent status to workmen'. 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."
''Powers and duties of Inspectors: Subject to any rules made by the Government in this behalf, the Inspector may, within the local limits for which he is appointed, (a) enter at all reasonable times and with such assistants, if any, who are persons in the service of the Government or of any local authority as he thinks fit to take with him, any industrial establishment; (b) make such examination of the industrial establishment and of any registers, records and notices and take on the spot or elsewhere the evidence of such person as he may deem necessary, for carrying out http://www.judis.nic.in the purposes of this Act; and (c) exercise such other 23 powers as may be necessary for carrying out the purposes of this Act."
Section 6; "Penalties'. (1) Every employer who contravenes the provisions of section shall be punishable with fine which may extend to five thousand rupees and in the case of continuing offence with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues.
(2) No prosecution for an offence punishable under the section shall be instituted except with the previous sanction of the prescribed authority."
11. Section 3(1), being a non obstante provision, it prevails over any law for the time being in force which includes any service rules, Government orders or Government instructions. Therefore, want of sanctioned posts as required under General Service Rules cannot take away the rights conferred under Section 3(1) of the Act Similarly, Government orders which require that the appointment should be made only through Employment Exchange also cannot be a ground to refuse the right provided under Section 3(1) of the Act of the petitioners (sic.) if they comply with the requirements prescribed under Section 3(1). Therefore, it is not open for the respondent to take shelter under any other law in force much less any Government Orders, Government instructions to deny the benefits conferred under Section 3(1) of the Act, to the petitioners if they satisfy the conditions prescribed, therein, irrespective of the fact whether there are irrespective of the availability of http://www.judis.nic.in sanctioned posts or sponsorship from Employment 24 Exchange.
12. It is also relevant to observe Section 5 which prescribes the powers and duties of Inspectors. Under Section 5(b), the Inspector is empowered to evidence (sic.) of such person as he may deem necessary carrying out the purposes of the Act. Section 5(c) further empowers the Inspector to exercise such other powers as may be necessary for carrying out the purposes of the Act. Therefore, under the scheme of the Act, the Inspector is empowered to exercise all such powers that are necessary for carrying out the purposes of the Act including taking evidence, holding enquiry, passing orders, achieve the object of the Act and also to implement such orders for carrying out the purposes of the Act which includes power to initiate penal action under Section 6 of the Act for contravention of Section 3(1) of the Act.
13. In the instant case, the second respondent after satisfying himself that the members of the petitioner- union are entitled for the benefit of Section 3(1) of the Act, forwarded the representation of the members of the petitioner-union for appropriate relief. Under such circumstance, if the first respondent Corporation failed to pass appropriate orders, giving benefits of conferring permanent status to the members of the petitioner-union, certainly the first respondent shall face the consequences of prosecution provided under Section 6 of the Act.
14. That apart, fixing December 15, 1988 as a crucial date for conferment of permanent status to all the persons and regularisation of their service is again http://www.judis.nic.in unreasonable as much as Section 3(1) confers right of the 25 permanent status on every workman, if the conditions contemplated under Section 3(1) are complied with, in the case of individual workman.
15. Therefore, the respondents arc directed to modify the proceedings, dated February 24, 1989, to confer the permanent status to individual workman from the day on which they satisfy the condition namely completing the continuous service for period of 480 days in a period of 24 calendar months in the respondent establishment. The respondent shall pass appropriate orders as directed above within six weeks from the date of receipt of a copy of this order.
14. In N.S.Giri vs. Corporation of City of Mangalore and Others, 1999 4 SCC 697, it has been held thus:
The short question arising for decision in this appeal is whether an award made under Section 10A of the Industrial Disputes Act, 1947 can be given effect to if it be inconsistent with the statutory provisions governing the service conditions of the employees.
In New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad & Ors. Vs. The Textile Labour Association, Ahmedabad 1961 (3) SCR 1, the Constitution Bench has held :-
"It is open to an industrial court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace or give http://www.judis.nic.in 26 awards which may have the effect of extending Agreement or making new one, but this power is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by the Supreme Court."
7. In The Management of Marina Hotel Vs. The Workmen 1962 (3) SCR 1, the award of the Industrial Tribunal holding entitlement to 15 days casual-cum- sickness leave *was held to be illegal being contrary to the provisions of Section 22 of Delhi Shops and Establishments Act, 1954 which contained a peremptory direction of the Legislature for leave not exceeding 12 days only being allowed. The decision in M/s Dalmia Cement (Bharat) Ltd. Vs. Their Workers represented by the Dalmia Cement Workers Union, Dalmiapuram AIR 1960 SC 413 which is to the same effect, was followed. So is the view taken by this Court in M/s Dalmia Cement (Bharat) Ltd., New Delhi Vs. Their Workmen and Anr. AIR 1967 SC 209.
8. In Hindustan Times Ltd., New Delhi Vs. Their Workmen AIR 1963 SC 1332 also the Industrial Tribunal fixing the period of sick leave at 15 days and permitting accumulation contrary to the provisions of the Delhi Shops and Establishments Act, 1954 was held to have acted illegally.
9.The Constitution Bench in State Bank of India & Ors. Vs. Their Workmen 1959 (II) LLJ 205 and three-Judges Bench in Workmen of Hercules Insurance Co.Ltd. Vs. http://www.judis.nic.in Hercules Insurance Co. Ltd., Calcutta 1961 (I) LLJ 249 have 27 held that any reference by way of industrial dispute seeking award of bonus beyond the limits prescribed by law was incompetent.
10. It is thus clear that an award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme Court and if it does so, it is illegal and cannot be enforced.
11.The learned counsel for the appellant heavily relied on the three-Judges Bench decision in The Life Insurance Corporation of India Vs. D.J. Bahadur and Ors. AIR 1980 SC 2181. Vide para 80, the majority view has been set out as under :-
"82. In my opinion, it is difficult to resist the conclusion that the Industrial Disputes Act is a special law and must prevail over the Corporation Act a general law, for the purpose of protecting the sanctity of transactions concluded under the former enactment. It is true that as laid down in Life Insurance Corporation of India Vs. Sunil Kumar Mukherjee, (1964) 5 SCR 528 : (AIR 1964 SC 847) and reiterated in Sukhdev Singh V. Bhagat Ram, (1975) 3 SCR 619: (AIR 1975 SC 1331), the Regulations framed under the Corporation Act have the force of law. But that is of little moment if no reference is permissible to the Regulations when considering the validity and operation of the "settlement" contract. Accordingly, Regulation 58, a product of the Corporation Act, cannot supersede the contract respecting bonus between the parties resulting from the settlement of 1974."
12. The abovesaid decision does support the http://www.judis.nic.in proposition canvassed by the learned counsel for the 28 appellant that an industrial settlement would operate even by overriding a statutory provision to the contrary. However, suffice it to observe that the Constitution Bench decision in The New Maneck Chowk Spinning and Weaving Co.Ltd., Ahmedabad & Ors. (supra) and also the decision of this Court in Hindustan Times Ltd. (supra) which is four Judges' Bench decision, were not placed before the learned Judges deciding the LIC of India's case. A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available. Respectfully following the earlier two decisions referred to hereinabove, we are of the opinion that the award dated 11.1.1969 under Section 10A of the ID Act appointing the age of retirement at 58, contrary to the provisions of the statutory rules appointing the age of retirement at 55, cannot be upheld and given effect to by issuing a writ for its implementation. In any case, the award stood superseded by the subsequent statutory rules of 1974 which too appointed the age of retirement at 55 and there is nothing wrong in the appellant having been asked to superannuate at the age of 55 consistently with the service rules as applicable on that day.
13. For the foregoing reasons, the appeal is held devoid of any merit.
15. In Management of Tamil Nadu Civil Supplies Corporation Ltd Rep. http://www.judis.nic.in 29 By its Senior Regional Manager, Sachidanandha Moopanar road, Thanjavur vs. Inspector of Labour (Authority under the Industrial Establishments (conferment of permanent status to workment) Act, Thanjavur & Ors, it has been held thus:
17. The argument that the settlement and the Award is binding cannot be accepted because of the non-obstante clause found in Section 3(1) of the I.D. Act. Originally, it did not cover a Settlement or an Award. Therefore, if there was any settlement or Award between the employer and the workmen, then the provisions of Tamil Nadu Act 46 of 1981 will have no application. This was noticed by a Division Bench of this Court in its judgment in Metal Powder Co. Ltd., Thirumangalam and another v. The State of Tamil Nadu and another [1985 (2) L.L.J. 376] and after referring to the similar provisions in other Labour enactments in paragraph 27, it was observed as follows:-
Para 27: ".... We are bound to take notice of the legislative practice that where the intention of the legislature is that a law is to have effect notwithstanding any award, agreement or contract of service, such an intention is expressed in clear and unambiguous words. Consequently, in the absence of reference to an award, an agreement or a contract of service in S.3(1) and restricting the operation of the non-obstante clause in S.3(1) only to "anything contained in any law for the time being in force", we must accept the contention of the learned counsel for the petitioner that S.3 will not supersede a settlement between the employer and the employees in so far as the http://www.judis.nic.in 30 subject matter of the settlement is conferment of permanent status to the workmen...."
Taking note of the above judgment, the State Legislature amended Section 3(1) of the Tamil Nadu Act 46 of 1981 and the words 'settlement' and 'Award' have been included in the Explanation to Section 3(1) of the Act.
18. In fact, when the amended provisions were challenged before the Supreme Court, the Act was held to be intravires of the Constitution by the Supreme Court in State of Tamil Nadu and others v. Nellai Cotton Mills Ltd.
and others [1990 (2) SCC 518]. Therefore, the objections based on the Award and settlement by the learned counsel for the Management must necessarily fail.
19. Thereafter, Mr. Ajay Khose, learned counsel appearing for the workmen brought to the notice of this Court a judgment of this Court in Tamil Nadu Civil Supplies Corporation Modern Rice Mill Engineering Section employees Union v. The Tamil Nadu Civil Supplies Corporation, rep. by its Managing Director [1998 Writ L.R. 514] relating to the very same Corporation. In that case, the petitioner Corporation gave a circular regularising the casual workers working in the Modern Rice Mill and gave their own date of regularisation. P.D. Dinakaran, J., in paragraphs 11 and 15 of the said judgment, held as follows:-
Para 11: "Section 3(1), being a non-obstante provision, it prevails over any law for the time being in force which includes any service rules, Government Orders or government instructions. Therefore, want of sanctioned http://www.judis.nic.in posts as required under General service rules cannot take 31 away the rights conferred under Section 3(1) of the Act. Similarly, Government Orders which require that the appointments should be made only through Employment Exchange also cannot be a ground to refuse the right provided under section 3(1) of the to the petitioners if they comply the requirements prescribed under Section 3(1). Therefore, it is not open for the respondent to take shelter under any other law in force much less any Government Orders, Government Instructions to deny the benefits conferred under Section 3(1) of the Act, to the petitioners, if they satisfy the conditions prescribed therein, irrespective of the availability of sanctioned posts or sponsorship from Employment Exchange."
Para 15: "Therefore, the respondents are directed to modify the proceedings dated 24.2.1989 to confer the permanent status to individual workmen from the day on which they satisfy the condition namely completing the continuous service for period of 480 days in a period of 24 Calendar months in the respondent establishment. The respondent shall pass appropriate orders as directed above within 6 weeks from the date of receipt of a copy of this order."
20. In the light of the above, the contentions raised by the petitioner Management will have to be necessarily rejected. In fact, the petitioner Management themselves have regularised the workmen on a posterior date. In the light of the above judgments of this Court and the Supreme Court, such action cannot be countenanced by this Court. The impugned order of the first respondent will http://www.judis.nic.in have to be necessarily upheld.” 32
16. In Tata Tea Limited rep. By its Dy. General Manage & Others vs. State of Tamilnadu represented by its Secretary to Government, Labour and Employment Department, Chennai-9 & Ors, wherein it has been held thus:
XII. Settlement cannot supersede the statutory right:-
12.1.The fact that there was some arrangements between workmen and the management in the form of advise by the Labour Officer or there was 18(1) settlement and therefore, the existing arrangement cannot be disturbed also does not merit acceptance. Explanation 2 to Section 3 clearly says that the said section will have an over-riding effect over any award, agreement, settlement, instrument or contract of service whether made before or after commencement of the Act. Explanation 2 was amended by the Tamil Nadu Act 44/85 and was made to come into effect with effect from 1.1.1982. The necessity to introduce such explanation arose after the lacuna was pointed out by the earlier division bench in Metal Powder Co. case (cited supra). In that case, the division bench observed that over riding effect cannot disturb the settlement between the parties. Therefore, the legislature made specific insertion of Explanation 2 to have the Act to over ride any agreement or settlement. The amendment was also noted by the Supreme Court in Nellai Cotton Mills case (cited supra). The court found that the amendment did not set aside the earlier judgment, but took away the legal basis of the earlier settlement.
http://www.judis.nic.in 33 12.2.This Court in Tamil Nadu Civil Supplies Corporation Modern Rice Mill Engineering Section Employees Union (represented by its Secretary), Sundarakottai Vs. Tamil Nadu Civil Supplies Corporation, represented by its Managing Director, Madras and another reported in 1999 (3) LLN 286 held that employer cannot get over the statutory prescription by issuing any order or instructions. The provisions of the Act will over ride such circular or instruction.
XIII. Inspectors power insulated:-
13.1.Insofar as the power exercised by the Inspector under the Act is concerned, it is a peculiar power. His power came to be considered by this court in Tamil Nadu Handicrafts Development Corporation Limited, represented by its Secretary, Madras and another Vs. The Inspector of Factories, Range No.II, Madurai and another reported in 2000 (1) MLJ 251. In repelling the contention of the management that an opportunity was not given when the officer passed an order, in paragraphs 11 and 12, P.Sathasivam, J. (as he then was) dealt with the scope of an Inspector under Rule 6(4) and observed as follows:
"11.....I have already stated that before passing the order, the first respondent inspected the premises, verified the records, heard the grievances of the workers through their Union Secretary and representative of the petitioner Management. In such a circumstances, there is no hesitation to come to a conclusion that the first respondent Officer has complied with the mandate of the Hon'ble Supreme Court enunciated in the Maneka Gandhi's http://www.judis.nic.in case. A.I.R. 1978 S.C. 597.34
12.....when the Inspector has to determine whether the workman is entitled to the benefit of Sec.3 and when the employer contests this right, he has to make the necessary enquiries and these enquiries must culminate in a speaking order disposing of the contentions of the employer, and the workman..."
...I have already mentioned the statutory obligation on the part of every employer to maintain Register of workmen in Form I. The Inspector is authorised to verify the Registers and take appropriate decision...."
13.2.In the present case, it is not as if the employer did not have any obligation to provide necessary materials. In fact in some of the cases, the officers have exercised suo motu power and in some cases, on complaint, they inspected the records and made necessary endorsement. Even in cases where applications were filed by the contesting respondents, it contains details and the management did not seriously challenge those details except taking a legalistic stand and raised technical objections. If the employer wanted to resist the claims, they could have produced proper registers to prove their stand that the workmen have absented themselves from duty or that they had stayed away from work, thereby violating the terms of contract. The Inspector can take adverse inference about the conduct of the management. Ultimately, the authority constituted under the Act is entitled to take a view on the basis of the materials placed before him. Considering the narrow compass in which this court can have a judicial review over such matters, this http://www.judis.nic.in court under Article 226 of the Constitution will not 35 interfere with the findings recorded by the officer unless it is perverse. Since the commission of an unfair labour practice has been specifically prohibited by virtue of Section 25-T, the denial of permanency to those workmen for years together cannot also be accepted by this court.
13.3.In cases represented by Mr.E.K.Nandakumar, the Management except by contending that proceedings must be kept in abeyance, did not place any further materials, which made the officers to pass appropriate orders on the basis of the available materials with them. Their objection before the authority was more to avoid disturbing the existing practice and additional financial burden and not with reference to merits of the individual claims made by the contesting respondents. Going by summary procedure to be adopted by the officer, he need not eternally wait for the employer to come with appropriate replies. Therefore, the present allegation of principles of natural justice was violated cannot be countenanced by this court.
13.4.The last attempt made by the management that some of the workers have left their employment and they were no longer in service will not invalidate the impugned orders. It cannot be a matter over which this Court can excise its mind.
XIV. The Finale:-
14.1.Before this case is concluded, it must be observed if the present contentions of the employers are accepted, it will take the workers back to the days of colonial exploitation, under the doctrine of laissez faire http://www.judis.nic.in and social control over such employments will become non 36 existent. The right of workmen cannot be defeated by such spurious arguments advanced by the employers. The only gain that the employer have had in these cases was to stall the process of implementation of the statutory right accrued to the workmen and underwritten by the Inspector for over a decade without any justification.
14.2.Very recently in the Supreme Court judgment's in Harjinder Singh Vs. Punjab State Warehousing Corporation (Civil Appeal No.587 of 2010 (SLP(C)No.6966/2009)), dt.5.1.2010, A.K.Ganguly, J. in his concurring opinion observed as follows:
"I am in clear agreement with Justice Singhvi that this court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it."
"In doing so, this court should make an effort to protect the rights of the weaker sections in view of the clear constitutional mandate. Social Justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos, in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity."
14.3.Before concluding, it is necessary to recall the poignant observations made by two Supreme Court judges in their latest ruling in Harjinder Singh's case (cited supra), forewarning the courts in getting entangled in the globalisation myth:
http://www.judis.nic.in "The attractive mantras of globalisation and 37 liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic to the plight of industrial and unorganised workers." -Justice G.S.Singhvi.
"I share the anxiety of Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy. Any attempt to dilute the constitutional imperatives in order to promote the so-called trends of globalisation may result in precarious consequences. Reports of suicidal deaths of farmers in their thousands from all over the country, along with escalation of terrorism, throw a dangerous signal. "
-Justice A.K.Ganguly.
14.4.In the light of the above, all the writ petitions will stand dismissed. Consequently, connected miscellaneous petitions stand closed.
14.5.Since the petitioners had virtually stalled the benefits of a crucial labour welfare legislation, in each one of the writ petition, the petitioner is directed to pay Rs.2000/- (Rupees two thousand only) as costs to the Tamil Nadu Labour Welfare Fund constituted under the Tamil Nadu Labour Welfare Fund Act within a period of four weeks from the date of receipt of copy of this order.” In R.Lakshmi vs. Chief Engneer (Personnel), Tamilnadu Electricity Board, Chennai and another, (2012) 6 MLJ 480, wherein it has been held as http://www.judis.nic.infollows:
38“.....
28. The essential test is to determine the existence of right in the matter to supervise and control a person as regards the work to be turned out by him. As a matter of fact, the definition ' Establishment ' is taken from the Tamilnadu Shops and Establishments Act, 1947 and the same has found a place in Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and as such, even if no order of regularisation is passed, a person is deemed to have been regularised as per Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 after completing 480 days of work in a period of 24 calender months. Even in a case, a person / employee has worked for more than 240 days in a year and if the Employer / Management fails to produce proper documentary evidence like voucher, record, etc., an adverse inference can be drawn to the effect that the plea projected by the said person is a trustworthy and a fruitful one.
29. As far as the present case is concerned, it is an admitted fact that the Petitioner#s husband Raju was a contract labour with the Tamilnadu Electricity Board from 01.05.1999 and that he was absorbed as per B.P.(FB).22 of the Tamil nadu Electricity Board dated 14.05.1999 as Helper. Unfortunately, he committed suicide on 23.11.2003. His death certificate was issued by the Mettur Municipality on 12.12.2003. Even the certificate dated 01.06.1999 issued by Assistant Executive Engineer, Civil http://www.judis.nic.in Maintenance, Power Houses, Mettur dam, to the 39 petitioner's husband S. Raju showed that he worked as a contract labour in Civil Section, Power Houses, Mettur Dam under Various Contractors, for the period from 30.09.1998 to 30.04.1999 without break in service.
30. A reading of the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 unerringly points out that it is the duty of an employer to confer permanent status on a workman/employee who had completed 480 days of work in a period of 24 calender months.
31. As per B.P.No.14 (Adm.Br) dated 05.08.2005, the Petitioner's husband name S. Raju could not find a place in the final list of 61 contract labourers of Erode Generation Circle, who were absorbed as Helpers. The Respondents/Electricity Board contend that at that time the petitioner#s husband name S.Raju S/o. Sundaram was in Sl.No.154 and therefore, he had to wait for his turn.
32. The seniority list of 163 contract labourers was prepared as per the Judgment passed in W.A.No.2647 of 2002 filed by the Tamilnadu Electricity Board. Therefore, earlier B.P.(FB) No.3 dated 29.01.2001 was issued to absorb 126 contract labourers of Erode Generation Circle as Helpers.
33. Admittedly, because of the tragic demise of the Petitioner's husband on 23.11.2003, his name could not find a place, in the final list of 61 contract labourers of Erode Generation Circle who were absorbed as Helpers as per B.P.no.14 (Adm.Br) dated 05.08.2005. Had he been http://www.judis.nic.in alive, then certainly, the Respondents would have 40 showered him with the benefit of conferment of permanent status. During the life time of the Petitioner#s husband, he was not conferred with permanent status, which was not disputed on both sides.
34. On going through the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, we are of the considered view that the Petitioner#s husband, completed 480 days of work in a period of 24 calender months (during his lifetime), and would become automatically a permanent employee under the Respondents/Tamilnadu Electricity Board, because of the simple fact that the Section mandates the Respondents to confer permanent status on the Petitioner's husband S.Raju and the conferment of permanent status to the Petitioner#s husband S. Raju / Employee / Workman would not depend upon his employer on his own or on a direction given by the competent authority under the Act.
35. The words “employed” in Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, are not directory in nature, in our considered opinion. Per contra, they are mandatory in character. In short, the deeming clause of Section 3(1) of the Act as aforesaid is explicit and admits of no exception as opined by this Court. Furthermore, the Petitioner's husband late Raju satisfied the essential condition of, being a worker and the Tamil nadu Electricity Board being his master, so as to http://www.judis.nic.in claim the permanent status. Thus, the logical conclusion 41 that can be deduced in the present case is that even if no order of regularization was passed in respect of the petitioner's husband Raju (since deceased), the statutory benefit of permanent status is to be necessarily granted to him by the Respondent/Tamil nadu Electricity Board.
36. We also hold that even in the absence of any enquiry conducted by the Inspector under the Act, the right conferred upon the Petitioner's husband to claim the benefit of permanent status could not be denied by any means because of the simple fact that Section 3(1) of the Act imposes an obligation upon the Respondents/Electricity Board Authorities to confer permanent status of the Petitioner's husband, who had rendered 480 days of work continuously in a period of 24 calender months and on that basis, we hold that the Petitioner#s husband deceased S. Raju is entitled to be made permanent by the Respondents / Tamil nadu Electricity Board Authorities and once, in law, he was entitled to the benefit of conferment of permanent status, the resultant benefit could not be deprived to the Petitioner (wife) notwithstanding the fact that during his lifetime no such permanency was conferred on him. Viewed in that perspective, we hold that a workman, who had completed 480 days of continuous service in a period of 24 calender months, would become automatically a permanent employee under the employer, even if, an employer had not conferred him with the permanent status or even if, no direction was issued by the competent authority in this regard under the Act, 1981 or the Rules framed thereunder. Accordingly, we answer the http://www.judis.nic.in Reference.42
37. Also, on the basis of Equity, Fair play, Good Conscience and even a matter of prudence, we direct the Respondents/Tamil nadu Electricity Board Authorities to issue appropriate proceedings in making the petitioner's deceased husband Raju as a permanent employee of the Board and to pay the petitioner family pension, family benefit and other terminal benefits including Gratuity as per Rules and regulations from time to time in force. The Respondents are further directed to consider and dispose of the representation of the Petitioner's dated 08.12.2003 and 08.01.2004 wherein she had prayed for Compassionate Appointment being provided to her daughter Valarmathi as per Rules and in accordance with law within a period of four weeks from the date of receipt of copy this order, (if not already considered and disposed of.) The respondents are directed to pay the Petitioner's family pension and other terminal benefits including gratuity etc., due to be paid to the petitioner's deceased husband within a period of eight weeks from the date of receipt of copy of this order. As such, the writ petition is allowed in above terms. No costs.
In view of the dictum laid down by the Hon'ble Supreme court and the orders passed by this Court, statutory rights of the respondents under Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, prevails over the settlement.
Writ Appeals are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
http://www.judis.nic.in 43 (S.M.K.,J) (S.P.,J) 30/9/2019 Index: yes/No website: yes/No http://www.judis.nic.in S.MANIKUMAR,J 44 AND SUBRAMONIUM PRASAD,J kpr Common judgment in W.A.Nos.2871 and 2872 of 2018 30/9/2019 http://www.judis.nic.in