Madras High Court
Andhra Bank, Salem vs Inspector Of Labour And Anr. on 31 March, 1994
JUDGMENT
S. Jananthanam J.
1. Andhra Bank, Salem (petitioner) is a Nationalised Bank. One G. Balasubramanian (second respondent) claiming to be an employee of the petitioner-bank filed a Claim petition No. 4 of 1993 under S. 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act No. 46 of 1981 - for short Permanent Status Act) before the Inspector of Labour, Salem (Appellate Authority thereunder - first respondent) stating that he had completed 480 days during the period from 1 September 1990 to 31 August 1992, that is to say, 24 calendar months and, therefore, he must be accorded "permanent status."
2. The petitioner, on receipt of the notice from the first respondent, approached this Court by way of writ petition, being Writ Petition No. 12894 of 1993 praying for issue of a writ of prohibition, prohibiting the first respondent from proceeding further, contending that the provisions of the Permanent Status Act cannot at all be made applicable to nationalised banks like the petitioner and consequently, the first respondent-appellate authority has no jurisdiction to entertain the application. The said writ petition appears to have been dismissed by this Court, with the observation that the preliminary question as respect jurisdiction has to be decided by the said appellate authority.
3. Subsequent to the dismissal of the said writ petition, the petitioner-bank resisted the claim petition, by filing a statement and inviting the first respondent-appellate authority to decide, as preliminary issue, the question relatable to jurisdiction. The appellate authority decided such a question, after taking into consideration various facts of submissions, projected by either side and ultimately passed an order, dated 1 December, 1993, holding that the Permanent Status Act is applicable to the petitioner-bank and the first respondent-appellate authority has every right to her and dispose of the Claim petition filed by the second respondent-workman. Aggrieved by the said order, the petitioner-bank resorted to the present action praying for issue of a writ of certiorari to quash the same.
4. This petitioner-bank has also filed Writ Miscellaneous Petition No. 3979 of 1994 praying for stay of all further proceedings therein, pending disposal of the writ petition.
5. The writ petition had been admitted on 17 February 1994, issuing rule nisi calling for records within eight weeks. On the same day, in the writ miscellaneous petition, Row and Reddy took notice for and on behalf of second respondent-workman and interim stay for four weeks had been granted, besides directing counter to be filed by then.
6. When the writ miscellaneous petition came up for hearing on 18 March 1994, learned counsel appearing for the respective parties gave consent for the disposal of the main writ petition itself and consequently, the main writ petition had been taken up for disposal. Arguments of either learned counsel were heard.
7. The moot question that arises for consideration is as to whether the first respondent-appellate authority is not having the requisite jurisdiction, under the Permanent Status Act, to entertain the claim petition.
8. In finding out an answer, to such a question, it is but necessary to take into consideration certain provisions of the Permanent Status Act as well as the Tamil Nadu Shops and Establishments Act, 1947 (Act No. 36 of 1947 - for short Shops Act). Sub-sec. (1) of S. 3 of the Permanent Status Act confers permanency to every workman, who is in continuous service for a period of 480 days in a period of 24 calendar months in an industrial establishment. This sort of a status to such a workman had been conferred, notwithstanding anything contained in any other law for the time being in force. From this, it is clear that two primordial requisites are to be fulfilled for conferment of permanent status to the workmen. They are :
(1) he must be in continuous service for a period of 480 days in a period of 24 calendar months, and (2) such period of service must have to be rendered in an industrial establishment.
9. Sub-sec. (3) of S. 2 of the Permanent Status Act defines "industrial establishment" by means of a means definition and relevant clause for our present purpose is Cl. (e), which is couched in the following terms :
I"2. Definitions. - in this Act, unless the context otherwise requires. -
(3) 'industrial establishment' means -...
(e) an establishment as defined in Cl. (6) of S. 2 of the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947. .. ")
10. From a cursory perusal of the said clause, one is able to understand that the word "establishment" though not defined in it, has been defined by borrowing from the Shops Act. Therefore, one has to refer to the relevant provisions of the Shops Act, as had been indicated therein, to find out the meaning of "establishment" for the purpose of Permanent Status Act.
11. Sub-sec. (6) of S. 2 of the Shops Act defines "Establishment" by means of a means definition and it reads as under :
"2. Definitions. - In this Act, unless there is anything repugnant in the subject or context. -....
(6) 'establishment' means a shop, commercial establishment, restaurant, eating-house, residential hotel, theatre or any place of public amusement or entertainment and includes such establishment as the State Government may by notification declare to be an establishment for the purposes of this Act."
12. The definition, as extracted above, means "commercial establishments" besides other establishments, specifically referred to therein. "Commercial establishment" is again, in turn, defined in Sub-sec. (3) of S. 2 of the Shops Act and it is also a means definition and it runs as under :
" (3) 'Commercial establishment' means an establishment which is not a shop but which carries on the business of advertising, commission, forwarding or commercial agency or which is an a clerical department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, broker's office or exchange and includes such other establishment as the State Government may by notification declare to be commercial establishment for the purposes of this Act. "
13. From a cursory perusal of the various definitions, as extracted above, "bank" comes within the field of "commercial establishment", included in "the establishment" falling under Cl. (e) of Sub-sec. (3) of S. 2 of the Permanent Status Act. Worthy it is to note at this juncture that for the purpose of Permanent Status Act, the definition of an "establishment" as defined in the Shops Act had alone been borrowed and not the other provisions of the Shops Act. In such a situation, once an "establishment" falls such a situation, once an "establishment" falls within the definition of "establishment" under Cl. (e) of Sub-sec. (3) of S. 3 of the Permanent Status Act, it goes without saying that the provisions of the said Act are applicable, in construing the conferment of permanent status to any workman, who fulfills the criteria as laid down under sub-sec. (1) of S. 3 thereof, in the sense of completion of continuous service for a period of 480 days in a period of 24 calendar months, notwithstanding anything contained in any other law for the time being in force, unless and until the Government, invoking its power under S. 9 of the Permanent Status Act exempts conditionally or unconditionally any employer or class of industrial establishments from the provisions thereof. Therefore, the provisions of Cl. (e) of Sub-sec. (1) of S. 4 of the Shops Act exempting establishments in the Central and State Governments is of no consequence. In the light of the aforesaid provisions, it cannot be said that the first respondent-appellate authority has no jurisdiction to entertain the claim petition.
14. At this juncture, very useful it is to refer to the relevant observations made by the Apex Court in D. P. Maheshwari v. Delhi Administration & Ors. 1984 I-LLN 1, couched in the following terms in para 1, at pages 2 and 3 :
"There was a time when it was though prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution; nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Articles 226 and 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must, therefore, ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditionaly special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and Journeying up and down. It is also worthwhile remembering that the nature of the jurisdiction under Art. 226 is supervisory and not appellate while that under Art. 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction, neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues."
15. For the reasons as above, the writ petition is dismissed. Consequently, writ miscellaneous petition is also dismissed. There shall, however, be no order as to costs, in the circumstances of the case.