Madras High Court
The Special Officer vs The Deputy Chief Inspector Of Factories on 31 October, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.14971 of 2009 and M.P.No.1 of 2009 The Special Officer, Salem Cooperative Sugar Mills, Mohanur-637 015 Namakkal District. .. Petitioner Vs. 1.The Deputy Chief Inspector of Factories, authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status) Act, 1981, No.51, Gokulam Road, Fairlands, Salem-16. 2.The Salem Cooperative Sugar Mills, National Workers' Union, Registration No.3792, Mohanur-637 015 Namakkal District rep by its Secretary, A.Palanisamy .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent dated 24.6.2009 made in No.A.1091/2008 and quash the same. For Petitioner : Ms.G.Thilakavathi For Respondents : Mr.V.Subbiah, Spl.G.P. For R-1 Mr.R.Rengaramanujam for R-2 - - - - ORDER
The petitioner is the Salem Cooperative Sugar Mills represented by its Special Officer at Mohanur. They have come forward to challenge an order passed by the first respondent Deputy Chief Inspector of Factories and the Authority constituted under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status) Act, 1981, dated 24.06.2009. By the impugned order, the first respondent being the Inspector notified under the Act directed grant of permanent status to 37 workers whose names were listed in the modified annexure, dated 6.7.2009 issued subsequent to the impugned order dated 24.6.2009 and they were directed to be made permanent with effect from 1.3.2008.
2.Aggrieved by the said direction, the writ petition came to be field and was admitted on 31.7.2009. Pending the writ petition, this court had granted an interim stay.
3.Heard the arguments of Ms.G.Thilakavathi, learned counsel appearing for the petitioner, Mr.V.Subbiah, learned Special Government Pleader appearing for the first respondent and Mr.R.Rengaramanujam, learned counsel appearing for the second respondent trade union.
4.It is the stand of the petitioner mill that it is a Sugar industry and it is seasonal in character. It has got crushing capacity of 2500 MTs per day. Based upon the crushing capacity, requirement of staff and workers were assessed and sanctioned by the Director of Sugars. The mill has got 186 regular and 45 seasonal staff and 95 regular and 180 seasonal workers. Apart from this, there are 161 NMRs engaged during the season. Since the initial staff pattern was not accepted by the trade unions, subsequently the revised staff pattern was brought into force by a settlement under Section 18(1) of the Industrial Disputes Act. There was also ban on recruitment during the period from 1999-2000 and vacancies were not filled up. As a stopgap arrangement and as no regular appointment can be made, on contract basis appointments were sought to be made and tenders were called for for supply of labours on contract basis on 9.2.2007.
5.The second respondent union filed a writ petition before this court being W.P.No.7290 of 2007 challenging the said tender notice. It was claimed by the union that the members of the union have put more than 10 years of service as casual labours and they should be regularized before they go for outsourcing any work. The said writ petition was dismissed with certain observations vide its order dated 28.3.2007. It was stated by this court that since the workers have taken the matter before the authority under the Industrial Disputes Act, they should seek remedy under the said Act. Even a complaint was filed by the second respondent before the Conciliation Officer under Section 33A. In the meanwhile, the State Government by order in G.O.(D)No.762, Labour and Employment Department, dated 25.10.2007 had declined to refer the dispute regarding regularization of temporary casual workers. It was contended that since recruitments were made on need based, they are not eligible for the said request. It was thereafter, the second respondent sent a representation to the first respondent stating that 89 casual labours are working for number of years in the mill. Hence they are eligible to be made permanent on the basis of Section 3 of the Conferment of Permanent Status Act. On receipt of the said representation, a notice was issued to the petitioner mill. They had also filed a counter statement, dated Nil (2008).
6.It was claimed by them that the sugar industry is a seasonal industry as per the Government notification, dated 20.7.1998. Hence the provisions of the Conferment of Permanent Status Act will not apply. It was further stated that the workmen have not put in 480 days of continuous service within a period of 24 calendar months. Once again the second respondent union filed another writ petition being W.P.No.14700 of 2008 challenging the tender notice dated 12.6.2008 and for a consequential direction not to engage contract workers in the place of 84 employees who have filed an application before the first respondent. That writ petition came to be disposed of by a common order dated 4.9.2008. This court while directing the second respondent to pursue their remedy before the first respondent, but also directed the petitioner mill to continue their services until a decision is taken by the authority in accordance with law. It was thereafter, the matter was taken up and the authority had passed the impugned order dated 24.6.2009 followed by a corrigendum dated 6.7.2009. The authority held that no doubt it was a seasonal industry and only if workers are working during crushing seasons alone, it will be covered by the term seasonal industry. But these workers were also engaged even during the period when there was no crushing season, which fact was not denied. Therefore, it cannot be held that the exemption found under the Tamil Nadu Act 46/81 will apply to the case of the present workmen. In that view of the matter, the 37 workers whose names were mentioned in the annexure alone will get the benefit of permanency. He also held that the stopping of workmen was made only to deny them the benefit of conferment of permanent status. Therefore, the authority held that they are eligible for grant of permanent status.
7.Ms.G.Thilakavathy, learned counsel appearing for the petitioner Sugar Mill contended that inasmuch as the sugar mill is a seasonal industry, the Act will not cover the industry in view of the exception found under Section 1(3) of the Tamil Nadu Act 46 of 1981. She placed reliance upon a judgment of this court in Badhili Dina Cooli Thozhilalar Munnetra Sangam Vs. Managing Director, Tamil Nadu Sugar Corporation Ltd. and others reported in Vol 101 (2002) FJR 242. In that case, the casual labours doing seasons work in the sugar mill were held to be not covered by the provisions of the Tamil Nadu Act 46 of 1981. The learned Judge in that case placed reliance upon a judgment of a division bench of this court in T.N.C.S.C. Workers' Union Vs. T.N.C.S.C. Ltd. reported in 1998 (1) LLJ 728 (Mad). In that case, the division bench dealt with the demands of the workmen engaged in direct purchase centres attached to the Corporation for procuring Paddy from the agriculturists during the harvest period. It was held that in case of seasonal industry, the workers cannot seek for regularization in terms of the Act. In page 246, the learned Judge had observed as follows:
...However, it is to be noted that the findings of the Division Bench is that the second respondent mill is not an industry and the same could not be brought within the purview of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act. The Division Bench did not deny the benefit of regularisation only on the ground that they were not recruited through the employment exchange. The claim of the petitioner was negatived on the ground that the claim cannot be brought within the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act. Therefore, in my considered view, the judgment of the Division Bench is equally applicable to the facts of the present case as it makes no difference between the employees recruited through the employment exchange and those who were not recruited through the employment exchange.
8.In that case, the learned Judge also referred to another judgment of the Supreme Court in Morinda Cooperative Sugar Mills Ltd. Vs. Ram Kishan reported in (1996) 1 LLJ 870 = (1995) 5 SCC 653, wherein the Supreme Court had considered the application of Chapter V-A in relation to seasonal workers in a sugar mill. Since Chapter V-A was made applicable to an industry, which is not seasonal in character, the provisions relating to retrenchment will not apply. In that view of the matter, the workmen's claim which was directly made under Article 226 of the Constitution and not routed through the authority constituted to decide under Tamil Nadu Act 46 of 1981 was declined.
9.The learned counsel also submitted that the Government by its letter dated 20.7.1998 addressed to the President, INTUC attached to South Arcot District Cooperative Sugar Mills Workers and Staff Federation, Vellore, in which an opinion was expressed that the pattern of employment of labours in sugar mills is classified as regular and seasonal and that the sugar industry is a seasonal industry. It is necessary to reproduce the letter, dated 20.7.1998 addressed by the Secretary to Government, Industries Department to the Union and in paragraphs 1 and 2 it was stated as follows:
1.The Commissioner of Sugar has stated that the Sugar Industry being an agro based Industry, the main function, namely manufacturing of Sugar is seasonal in nature. Moreover the yield and other factors mainly depend on rainfalls. Crushing operation is not being carried out throughout the year. The pattern of Employment of Labour in Sugar Mills is classified regular and seasonal. The regular worker will be given employment throughout the year and the seasonal worker will be given employment only during the period of crushing operation. Hence, he has opined that Sugar Industry is a seasonal industry.
2.The Government have examined your request in the light of our remarks offered by Commissioner of Sugar in para 2 above and lane decided to accept the suggestion of Commissioner of Sugar. I am therefore to state that your request for declaring Sugar industry as permanent industry cannot be complied with. (Emphasis added) In the light of the same, she contended that exemption found under Section 1(3) will apply to the sugar mills.
10.The next contention of the learned counsel Ms.G.Thilakavathy was that the workmen through their union raised a dispute regarding regularization and that was declined by the State Government by G.O.(D)No.762, L&E Department, dated 25.10.2007 and that is not challenged. But, the individual workmen had approached the authority for grant of permanent status under Tamil Nadu Act 46 of 1981. Very recently also, after filing of the petition, the trade union had filed a petition before the Deputy Commissioner of Labour, Salem raising an industrial dispute under Section 2(k) of the ID Act complaining of unfair labour practice allegedly indulged by the petitioner mill including complaint regarding the non regularization of the workmen by the management. In view of the above, they cannot pursue the remedy before the authority under the Act, i.e., the first respondent.
11.The learned counsel submitted that the workmen were sought to be terminated and only under the orders of this court, they are continuing. So long as the action of the management is not questioned, the authority cannot decide the said matter of restoration of service in view of the grant of permanent status.
12.Lastly Ms.G.Thilakavathy submitted that the burden of proof that they had worked for 480 days within a period of 24 calendar months was not discharged by them before the authority. In the absence of any legal evidence, the authority could not have granted them the status.
13.Per contra, Mr.R.Rengaramanujam, learned counsel appearing for the second respondent contended that even if the sugar industry's operation of crushing of sugar is of seasonal activity, but there are other activities which are conducted in the sugar factory throughout the year which include maintenance and repair works. Therefore, it cannot be said that the workmen were engaged only during the crushing season. On the contrary, the authority had found that they were not seasonal workers and their services were utilized even during off season. He further submitted that the workmen covered are technical workers and their services were utilized throughout the year in the factory. When they filed an application before the first respondent, they had given in the annexure to their application the number of days worked by each workman yearwise. When a notice was ordered on the application, in the counter statement filed during 2008, in paragraphs 5 and 6, it was stated as follows:
5....this respondent categorically places on record that even such of those employees worked for nearly 3 4 years as on date, have not put in continuous service which alone will entitle the workman employee to be regularized even as per the provisions of this Act the contentions of the petitioner herein to be rejected. In the absence of any such concrete proof by the employee to state that he had worked for 480 days in a period of 24 Calendar months, only an adverse inference could be drawn as the workman has not adduced cogent evidence in this regard.
6....the petitioners have not satisfied the criteria laid down under the statute which was warranting a fixed execution of work of 480 days in two consecutive years to make an individual casual labourer eligible for relaxation.
14.They had not disputed the number of days worked and that their only contention was that it was not continuous. Therefore, he stated that Section 3 of the Tamil Nadu Act 46 of 1981 in Explanation-I clearly covered even discontinuous period for the purpose of calculating continuous service and so long as the term of contract of appointment continuous and they had put in actual service of 480 days within a period of 24 calendar months even if it breaks, that will be covered for the purpose of qualifying service to get permanent status.
15.On the question of not pursuing the dispute in which the Government had declined reference, he submitted that when the management went for outsourcing certain employment, the union filed a writ petition contending that these employees should be made permanent as they have already moved first respondent and any filling up of those posts will deny them the benefit of permanency. While disposing of the writ petition in W.P.No.14700 of 2008, this court in paragraph 4 had observed as follows:
4.....Considering the fact that pursuant to the interim order of injunction passed by this Court, the 2nd respondent has employed 84 workers of the petitioner union and proceedings initiated under Tamil Nadu Act 46 of 1981 are pending before the competent authority, I am of the considered view that to meet the ends of justice, the 2nd respondent should be permitted to proceed with the tender notification in respect of the recruitment not only regarding category Nos.12 to 14 for which the petitioner has no objection, but also in respect of other categories also subject to the condition that the 84 employees of the petitioner Union, who have been employed pursuant to the order of interim injunction granted by this Court, shall be continued with permission to the 2nd respondent to appoint any further employees on contract pursuant to the impugned notification dated 12.6.2008. The employment of 84 members of the petitioner Union shall be continued till the authority under the Tamil Nadu Act 46 of 1981 complete the proceedings and pass final orders. The Deputy Chief Inspector of Factories, before whom the proceedings initiated by the petitioner Union under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status) Act, 1981 in Proceedings No.A/1091/2008 are pending, is directed to complete the enquiry, after following the procedure established under the Act and pass appropriate orders on merits and in accordance with law expeditiously, in any event, within a period of 3 months from the date of receipt of a copy of this order. The 2nd respondent shall cooperate with the authority under the Act by filing necessary counter affidavit so as to enable him to complete the enquiry in an appropriate manner. The Writ petition is ordered accordingly. No costs. It is made clear that after the decision is rendered by the authority under Tamil Nadu Act 46 of 1981, it is open to the 2nd respondent to act in accordance with the decision arrived at by the said authority.... (Emphasis added)
16.Further the remedy available under the Tamil Nadu Act 46 of 1981 is an independent remedy available and that the Government order declining reference is only administrative in character and it does not decide the right of the parties. He also submitted that there is no order of any competent authority either under the Tamil Nadu Act 46 of 1981 or under the Industrial Disputes Act declaring the entire operation in the sugar mill is of seasonal character and that the provisions of the Act will not apply. He further stated that the artificial breaks given to certain workers, i.e. 33 days in May and June, 2006 and 15 days during June 2007 was given only with a view to get away their permanent status and that such breaks cannot be considered as disqualifying service.
17.As a matter of fact, the authority found that the workmen during crushing season were engaged for repair works and machine operations and in the off season, they were engaged for maintenance including repair works of machineries which was not denied in the counter statement. In that view of the matter, there is no case for interference with the impugned order.
18.In the light of the rival contentions, the issues that arises for consideration by this court are as follows:
(1)Whether in view of the exception found under Section 1(3) of the Tamil Nadu Act 46 of 1981, the petitioner mill is excluded from the purview of the Act?
(2)Whether the workmen have failed to prove that they were qualified under Section 3 for getting permanent status?
(3)Whether the authority was justified in granting permanent status to workmen despite the fact that the petitioner management had stated that 84 casual labours were stopped from work on 10.4.2008 as per letter dated 6.5.2008?
19.Since reliance was placed upon Section 1(3) of the Tamil Nadu Act 46 of 1981, it is necessary to extract the same which reads as follows:
1(3)It 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:
Provided that the Government may, by notification, apply the provisions of this Act to any industrial establishment employing such number of workmen less than fifty as may be specified in the notification. (Emphasis added)
20.The State Government subsequently had issued a notification fixing minimum number of workers for coverage under the Act to 20 workers vide notification in G.O.Ms.No.2043, Labour and Employment Department, dated 24.9.1982. The said notification reads as follows:
[G.O.Ms.No.2043, Labour and Employment, 24th September, 1982 (Puratasi 8, Thunthubi, Thiruvalluvar Aandu 2013).] No.II(2)/LE/5527/82. In exercise of the powers conferred by the proviso to sub-section (3) of section 1 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981), the Governor of Tamil Nadu hereby applies the provisions of the said Act to all industrial establishments (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than twenty workers were employed on any day of the preceding twelve months. (Emphasis added)
21.Therefore, in case of any doubt as to whether a particular industry is seasonal in character, the Government's decision alone is final. Insofar as the present case is concerned, the petitioner had not produced any order from the competent authority to decide under the Act that all employments in sugar mill are seasonal in character. The terminology used in Section 1(3) as well as in the subsequent statutory notification is only borrowed from Section 25A of the Industrial Disputes Act. Section 25A of the ID Act reads as follows:
25-A. Application of Sections 25-C to 25-E.(1) Sections 25-C to 25-E inclusive shall not apply to industrial establishments to which Chapter V-B applies, or
(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or
(b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.
22.Similar definition is also adopted in Section 25-K of the I.D. Act for the purpose of applying Chapter V-B of the I.D. Act. Unfortunately, both the I.D. Act as well as Tamil Nadu Act 46 of 1981 have left the determination of the issue to the parties, failing which a determination by the appropriate Government. Apart from these two enactments, the term seasonal character is also found under the ESI Act. By Amending Act 44 of 1966 which came into force with effect from January 28, 1968, the definition of 'seasonal factory' has been amended. The definition as amended reads:
"2. (12) * * * Seasonal factory means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortication of groundnuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year-
(a) in any process of blending, packing or re-packing of tea or coffee; or
(b) in such other manufacturing process as the Central Government may, by notification in the official Gazette, specify;
The expressions manufacturing process and power shall have the meaning respectively assigned to them in the Factories Act, 1948";
(Emphasis added)
23.Unlike the I.D. Act and Conferment of Permanent Status Act, Section 2(12) of the ESI Act as amended by the Amending Act 44 of 1966 makes the issue without giving room for any controversy in respect of the said Act.
24.Even in respect of the Payment of Bonus Act, the question as to whether wages earned during off season by seasonal workers in the name of seasonal allowance can count for the purpose of calculating the Bonus on the wages earned during the accounting year, the Supreme Court had held that such an allowance also will count for the purpose of reckoning the bonus even in respect of off season workers vide its judgment in Chalthan Vibhag Sahakari Khand Udyog v. Govt. Labour Officer reported in (1981) 2 SCC 147 and in paragraphs 6, it was observed as follows:
6.There can be no doubt that the retaining allowance paid to the workmen during the off-season falls within the substantive part of the definition of the expression salary or wage. It undoubtedly is remuneration which would, if the terms of employment, express or implied, were fulfilled,be payable to any employee in respect of his employment. The retaining allowance is a remuneration on a lower scale which is paid to the workmen by the management during the off-season for their forced idleness. The payment of such allowance by the management to its workmen during the off-season when there is no work and when the factory is not working, is indicative of the fact that it wants to retain their services for the next crushing season. The very fact that retaining allowance is paid to the workmen clearly shows that their services are retained and, therefore, the jural relationship of employer and the employee continues. It is true that a workman may not return to work and may take up some other job or employment. In that event, he forfeits the right of payment of the retaining allowance. But when the workman returns to work when the next crushing season starts, the payment of retaining allowance during the off-season, partakes of the nature of basic wage on a diminished scale. The definition of the expression salary or wage given in Section 2(21) of the Act is wide enough to cover the payment of retaining allowance to the workmen. It is nothing but remuneration correlated to service and it would be a misnomer to call it an allowance. The retaining allowance does not fall within the purview of clause (i) of the exclusionary clause of Section 2(21), but comes within the substantive part of the definition of salary or wage in Section 2(21) of the Act. The retaining allowance cannot be construed to be any other allowance which the employee is, for the time being, entitled. The High Court was, therefore, justified in holding that the retaining allowance paid to the seasonal employees was a part of their salary or wage within the meaning of Section 2(21) of the Act and, therefore, must be taken into account for the purpose of calculation of bonus payable under the Payment of Bonus Act, 1965.
25.The decision relied on by the counsel for the petitioner in Badhili Dina Cooli Thozhilalar Munnetra Sangam's case (cited supra) relied on the division bench judgment in T.N.C.S.C. Workers' Union's case (cited supra). But subsequently, the decision of the division bench when it was challenged collaterally before the Supreme Court by the same trade union, the Supreme Court held that such a finding cannot be collaterally attacked. But it left the question open and gave liberty to the workers to challenge their orders of termination and also to establish that the employment in which they were working was not of seasonal in character. In this context it is necessary to refer to a judgment of the Supreme Court in Workers' Union v. T.N. Civil Supplies Corpn. Ltd., reported in (2001) 4 SCC 469. The following passages found in paragraphs 8 to 10 may be usefully extracted below:
8.Mr Sharma submitted that even though the Division Bench has held that the questions raised in the appeal of the Union were the same as those pending in the writ petitions filed by the 1st respondent, yet the Division Bench has gone on to give a finding that the establishment is of a seasonal character and the work is not (sic) intermittent. Mr Sharma submitted that these findings would now come in the way of the Union while defending the writ petition filed by the 1st respondent. He submitted that this Court should either set aside these findings or clarify that those writ petitions would be decided without taking those findings into account.
9.We are unable to accept these submissions. Those findings were given because the individual employees, who had filed various other writ petitions, raised these contentions before the Division Bench. As those contentions were raised the Division Bench has answered these contentions. None of the workmen, in whose matters those findings are given, have come up in appeal to this Court. They have accepted those findings. It is, therefore, not open for the Union to claim that those findings should be set aside.
10.In any event, as stated above, the services of the workmen have been terminated. Therefore, even if the said Act squarely applied and the establishment of the 1st respondent was not of a seasonal character and the work was not intermittent, the remedy would now be to file the appropriate proceedings against the order of termination. In this view of the matter no purpose would be served by dealing with the correctness of the finding given by the Division Bench. (Emphasis added)
26.The second judgment relied by the learned Judge in Morinda Cooperative Sugar Mills Ltd.'s case (cited supra) arose under a different context regarding the application of Chapter V-A in relation to employees who are engaged during crushing season. In paragraph 5, it was observed as follows:
5. ....Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act.... Therefore, this judgment do not turn on their own facts of the case and will not be of any assistance to the case on hand.
27.Ms.G.Thilakavathy referred to the Industries Department letter dated 20.7.1998 holding that the sugar industry is a seasonal industry which is not an order issued in terms of either Section 25-A of the I.D. Act or under Section 1(3) of the Conferment of Permanent Status Act. On the contrary, a general direction was sought for to declare the entire sugar industry as a permanent industry. In that context, a disposal was given to the trade union's representation pursuant to the direction given by this court. For the purpose of deciding whether a particular industry is seasonal in character, the issue must be decided by the Government which in the present case by the Secretary to Government, Labour and Employment Department alone is the authorised Ministry. For doing so, there must be a dispute raised before the said authority by either of the parties.
28.Even if a particular activity of the mill is held to be seasonal, i.e., crushing activity of the sugar mill, it does not automatically make the other department also seasonal if it is proved that this department is working round the year. In this context, it is necessary to refer to a judgment of the Supreme Court in Special Officer and Joint Registrar Cooperative Societies and another Vs. Workmen of Vanivilas Sugar Factory and others reported in 2001 (1) LLJ 1381 (SC). The Supreme Court in that case upheld the decision of Karnataka High Court and set aside the order passed by the Government of Karnataka passed under Section 25-K(2) declaring the sugar mill is of seasonal in character so as to exclude the application of Chapter V-B to the said mill. The said order of the Supreme Court may be reproduced in its entirety, which reads as follows:
An order was made on November 7, 1986 by the Government of Karnataka under Section 25-K(2) of the Industrial Disputes Act declaring the Establishment of the appellants of a seasonal character.
2.The Government found that from the year 1971-73 when the Sugar Factory was started till the year 1986 when the order was passed, the appellant's Establishment recorded that crushing of sugarcane was ranging from 43 days to 230 days only; that in most years the number of days crushed ranged from 140 days to 160 days; that these variations occurred on account of non-availability of sufficient sugarcane in the factory; that these facts established that the industry is seasonal. When this order was challenged before the High Court it was pointed out that the Government itself had adopted certain standards in matters of this nature. In regard to two Establishments namely Gauri Bidanur Sugar Factory and Tunghabhadra Sugar Works (P) Ltd. it was noticed that the difficulty in procurement of sugarcane would not be a relevant factor in determining whether the Establishment is of seasonal character or not; that working of a Sugarcane Factory cannot be equated with crushing of sugarcane alone and various other activities such as maintenance, marketing, accounting and extension work for sugarcane cultivation, etc. should be taken note of in addition to the fact of the number of permanent employees in the establishment. On that basis the Government reached the conclusion that though crushing occupation was seasonal, the industrial Establishment was not seasonal. However, in the case of the appellants the reasons referred in other cases as irrelevant were taken note of without noticing that there were 338 out of 600 employees of permanent character. The only reason set out is that the crushing activity had been drastically reduced. In that background the High Court has rightly adopted the very standards set out by the Government itself as touchstone to come to the conclusion that different standards are adopted with regard to different sugar factories and what was adopted as standard if applied to the appellant the impugned order could not have been passed by the Government. The High Court allowed the writ petition and that order was upheld by the Division Bench. We do not see any good reason to interfere with the order made by the High Court. The appeals are therefore dismissed.
29.Therefore, in the present case, since there is no authoritative order by the Government in respect of the petitioner mill under Section 25-A or Section 25-K of the I.D. Act or under Section 1(3) of the Conferment of Permanent Status Act, the court cannot presume that the Government had gone into the issue and decided the issue in respect of the petitioner mill. The letter dated 20.7.1998 issued by the Industries Department cannot be said to be a statutory order in terms of the two enactments. In the absence of the authoritative order from a competent authority, the court cannot presume that the entire operation of the petitioner mill is of a seasonal character.
30.In this context, a reference can be made to a judgment of the Supreme Court in Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai Chavda reported in (2010) 1 SCC 47 and in paragraph 12, it as observed as follows:
12.In the normal course, it is the decision of the appropriate Government which is final in determining whether the said industry is seasonal in nature. As has been observed by the Labour Court and the High Court, there has been nothing brought on record by the appellant to support its contention that fisheries is a seasonal industry. There has been no order from the Government which has been produced by the appellant to state that the fisheries industry is seasonal. There has been no mention of any decision on the part of the appropriate Government with regard to declaring fisheries as a seasonal industry. Therefore, we concur with the finding of the Labour Court wherein they have concluded that the appellant cannot be classified as a seasonal industry. (Emphasis added)
31.On the contrary, the first respondent on being directed to consider the issue on merits by the order of this court in W.P.No.14700 of 2008, dated 04.09.2008 referred elsewhere, the authority clearly held that the workmen are not only working during the crushing season for maintenance and operation work, but also during off season for the plant maintenance and repair of machineries throughout the year. Therefore, the exception relied on by the petitioner under Section 1(3) cannot come to the rescue of the petitioner management. Even the judgment relied on in Badhili Dina Cooli Thozhilalar Munnetra Sangam's case (cited supra) has no application to the case on hand.
32.But, in this context, the judgment of the Supreme Court in Workmen of Vanivilas Sugar Factory's case (cited supra) will have direct application. The Supreme Court has set aside the Government order declaring the sugar mill is of seasonal character under Section 25-K, which terminology is also borrowed under Section 1(3). In fact, the reason for appointing these workmen on non permanency basis is even explained in paragraph 6 of the affidavit filed in support of the writ petition, which reads as follows:
6.Only as a stop gap arrangement to meet the needs of administration, the Management, bearing in mind the financial constrains which the industry would face on account of permanent recruitments, deemed it fit and proper that appointment could be made on a contract basis as provided under the bylaws of the sugar mills. Hence the contention that in view of Section 1(3) workers are not entitled for the benefit cannot be accepted. The said contention is rejected.
33.With reference to the second contention regarding burden of proof of establishing that the workmen had worked 480 days of continuous service within 24 calendar months, it is not as if the obligation is only with the workmen in the case of this nature. The Sugar mill is the factory and the management must have produced the statutory registers showing the number of days worked by the workmen. On the contrary, there is no denial of number of days set out in the annexure to the claim petition filed by the union. The authority also held that some of the breaks were given deliberately with a view to defeat their right of permanency. Even on the question of burden of proof, the Supreme Court in Director, Fisheries Terminal Department's case (cited supra) in paragraphs 16 and 17 had observed as follows:
16.This Court in R.M. Yellatti v. Asstt. Executive Engineer2 has observed: (SCC p. 116, para 17) 17. However, applying general principles and on reading the [aforesaid] judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case.
17.Applying the principles laid down in the above case by this Court, the evidence produced by the appellant has not been consistent. The appellant claims that the respondent did not work for 240 days. The respondent was a workman hired on a daily-wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service.
34.A mere denial without producing necessary documents will not enable the management to contend regarding the onus of proof. In the present case, the onus of proof that the workmen had worked so as to qualify under Section 3 has been completely discharged. Hence on the said finding of fact, no interference is called for.
35.The last contention based on the workmen being terminated with effect from 10.4.2008 also cannot be accepted as rightly held by the authority. Such an attempt was to deny them from getting the permanent status. Hence the finding of the authority cannot be interfered with. The division bench of this court in Mamundiraj N. and others Vs. Bharat Heavy Electricals Ltd., Trichy and another reported in 1999 (I) LLJ 622 (Mad-DB) dealt with the power of the authority in such matters and in paragraphs 25 and 26, it was observed as follows:
25.As observed in the earlier part of our Judgment that breaks in service, if any, brought out in the chart of the days the appellants have worked, it can be reasonably inferred that the respondent has resorted to unfair labour practice and the discharge of the appellants for cease of relationship of master and servant even if assumed to be quint-essential suffers from the vires of malice apart from being in violation of the State's policy, if I may say so it would be void order. The workman would be deemed to be in service when the cessation of work has been brought about by the employer for extraneous consideration, as in the case in hand.
26.In view of the observations made above, what is required to be determined by the authorities is not the question what Hon'ble Single Judge with respect posed but the following questions:
(i)Whether the appellants have worked for 480 days in preceding 24 calender months;
(ii)Whether the interrupted period of service, if any or cessation of work if any, brought about is an unfair labour practice. Keeping in view the observations made in the earlier part of the Judgement, if the answer is in affirmative, the worker would be entitled to the conferment of the status of permanent employee with effect from the date of termination of service with all other consequential reliefs following from such a declaration. The second respondent is directed to determine the above referred questions within three months, from the date of receipt of a copy of this Judgment, after affording an opportunity of being heard to both the parties.
36.Further, in the present case, when a direction was issued by this court in W.P.No.14700 of 2008, dated 4.9.2008, this court had directed the parties to act according to the order made by the first respondent and till such time the engagement of these workmen was directed to be continued.
37.In the light of the above factual matrix and the legal precedents set out above, this court do not find any case made out for interfering with the impugned order. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
vvk To The Deputy Chief Inspector of Factories, authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status) Act, 1981, No.51, Gokulam Road, Fairlands, Salem 16