Kumar Polydot Mills Limited vs The Deputy Chief Inspector Of Factories on 12 April, 2010

[Cites 18, Cited by 3]

Madras High Court

Kumar Polydot Mills Limited vs The Deputy Chief Inspector Of Factories on 12 April, 2010

2. These two writ petitions were filed by one and the same petitioner. In the first writ petition, the challenge is to the order passed by the first respondent Deputy Chief Inspector of Factories who is an authority constituted under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act, 1981.

3. By an impugned order dated 21.08.2000, the authority held except one T.Radhakrishnan (R24) all other workmen have completed 480 days' of service within 24 calendar months and therefore, they were directed to be conferred permanent status in terms of Section 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act 1981 (for short TN Act 46 of 1981). In respect of R24, (T.Radhakrishnan), it was directed that on the date by which he completes 480 days of service, he will also be made permanent.

4. The writ petition was admitted and notice was ordered to the respondents workmen. Pending the writ petition, an interim stay was granted. Subsequently, when the workmen filed a vacate stay application, this Court by an order dated 23.09.2003 directed the main writ petition itself to be disposed of. Hence, it was directed to be listed for final hearing. The official respondents have filed a counter affidavit dated 14.04.2004.

5. In the meanwhile, the very same Management filed the second writ petition being W.P.No.17891 of 2000, challenging the order of the first respondent Joint Commissioner of Labour, Coimbatore made in Retrenchment Application No.1 of 2001 rejecting the request for grant of retrenchment by an order dated 08.03.2001. The petitioner Management filed an application dated 08.01.2001 seeking prior permission to retrench the respondents 2 to 25. The authority after considering the relevant circumstances and after due notice to the contesting respondents refused to grant the permission. When the writ petition came up on 27.09.2001, only notice of motion was ordered. Subsequently, the matter was admitted on 19.02.2003.

6. In view of the interconnectivity between the two writ petitions, they were heard together and a common order is passed.

7. It is the claim of the workmen that they joined the petitioner mill between May 90 and June 1995. They were directly involved in production work like any other permanent workmen right from the date of their initial appointment. Though they were also performing the work of regular workmen, they were not made permanent and were not given the scale of pay and other benefits available to the permanent workmen. Therefore, they filed an application dated 20.05.1999 before the authority under Section 3(1) of the T.N.Act 46 of 1981 claiming permanency.

8. G.M.Ramaswamy (R10) and A.Sebastian (R21) were examined as witnesses on the side of the workmen. They also filed 8 exhibits which were marked on their side. On the side of the Management one Janarthanan was examined and 9 exhibits were marked. After hearing the arguments of both sides, the authority passed the impugned order. While calculating the number of days worked by the workmen, the authority excluded the period of Apprenticeship i.e., a period of three years as provided under the model standing orders applicable to the workmen. It was also proved that the workmen were not given any training and it was misnomer to call them as trainees. They were given timecards and were made to work in all the shifts in all places of work along with the permanent workmen. On the strength of the order passed by the authority, the workmen claimed permanency. But however even the existing work was denied to them from December 1999 till March 2000. A petition claiming lay off compensation was filed before the Labour Court in C.P.No.444 of 2000.

9. In the meanwhile, the Management filed an application seeking permission to retrench them under Section 25-N of the Industrial Disputes Act, 1947 (for short I.D.Act) before the Joint Commissioner of Labour, who is the competent authority. But the competent authority rejected the request of the Management by an order dated 08.03.2001. It was contended by the workmen that the order passed by the two authorities do not suffer from any infirmity calling for any interference from this Court.

10. In the counter affidavit filed by the official respondents, it was stated that though terms of settlement under Section 12(3) of the I.D.Act dated 08.03.1990 was pressed into service. But no records were produced to show that the workmen were all apprentices. Even the settlement under Section 12(3) is ultra vires and against T.N.Act 46 of 1981. It must be noted that model standing orders were amended by the State Government by G.O.Ms.No.713 Labour and Employment Department, dated 04.10.1977 defining the term 'Apprentice'. Under Model Standing Order 2(h), the term 'apprentice' is defined as one who is engaged essentially in learning and it shall not exceed one year with those who are having technical qualification and three years for others. The Management itself had accepted they were performing in all the three shifts and were also getting overtime. If they are Apprentices as covered by the Apprentices Act, 1961, there can never be any over time in terms of Section 15 of the Apprentices Act. The Tamil Nadu Act 46 of 1981 does not make any distinction based on nomenclatures of various appointments. The workmen have let in evidence that they were fully discharging duties as per the terms of the settlement which was also not denied by the Management. Annexure IV to the settlement signed under Section 12(3) dated 04.08.1997 has no relevance. It is claimed that the strength fixed for the Mill was 141 workmen and that the workmen will be gradually made permanent cannot be accepted.

11. Mr.R.Parthiban, learned counsel for the petitioner contended that the company was running under loss and was brought under BIFR. Since the workmen were employed as Apprentices, they were not covered by the Provident Fund Act and Employees State Insurance Act. Even the definition of the workmen under T.N.Act 46 of 1981 does not include 'Apprentices'.

12. Similarly in W.P.No.17891 of 2001, the Management contended that the Mill is doing badly and also covered by BIFR as it had an accumulated loss which rose up to Rs.335.54 lakhs. As per the norms, they are entitled to have only 116 workers whereas the present strength is 139 permanent workers in addition to the 24 'Apprentices' who are the respondents herein.

13. However, the authority in his elaborate order found that the grounds for retrenchment were not made out and hence, permission for grant of retrenchment cannot be granted.

14. Mr.R.Parthiban, learned counsel for the Management relied upon the judgment of the Supreme Court in Mukesh K.Tripathi v. Senior Divisional Manager, LIC and others reported in (2004) 8 SCC 387 to contend that though the Supreme Court held that the term 'Apprentice' has been included in the definition of ''Workman'' contained in Section 2(s) of the I.D.Act. But in cases if the term of Apprenticeship is not extended by any further written contract, they may become workman. But when any person raised a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In the absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be a workman. Reliance was made to paragraph 24 of the judgment, which is as follows:

"24. From a perusal of the award dated 28-5-1996 of the Tribunal, it does not appear that the appellant herein had adduced any evidence whatsoever as regards the nature of his duties so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. The offer of appointment dated 16-7-1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer of the Corporation by no stretch of imagination can be held to be performed by an Apprentice."

Therefore, he pleaded that there is no material in the present case to hold the contesting respondents as workmen.

15. He also placed reliance upon the judgment of the Supreme Court in U.P.State Electricity Board v. Shiv Mohan Singh and another reported inn (2004) 8 SCC 402 for the purpose of showing that once an incumbent is appointed as an apprentice he will continue to be an Apprentice unless a formal order of appointment followed. It is on the basis that the Act nowhere treats them as workers. If the intention was to confer upon them the status of the workman, then the provisions of the Act would have been incorporated.

16. But in the present case, the said judgment has no application since the contesting respondents are not Act Apprentices, but they were workman within the definition of Section 2(s) of the I.D.Act. A Division Bench of this Court vide its decision in The Southern India Mills Association v. The State of Tamilnadu and others reported in 2010 Writ L.R distinguished the U.P.State Electricity Board's case (cited supra) and held that if there was a specific inclusion of the term 'apprentice' in a rule or notification then that case has no relevance for deciding the issue in relation to other enactments. The decision was confined to the apprentices covered by the Apprentices Act, 1961 only.

17. The learned counsel for the Management also placed reliance upon the judgment of the Supreme Court in U.P.State Electricity Board and another v. Dharmendra Kumar Bajpai reported in (2005) 13 SCC 679. Reliance was placed upon paragraph 6 of the judgment, which is as follows:-

"6. In our opinion, the decision rendered by the three learned Judges in U.P. SEB case governs the facts of the present case. Once it is found on facts that the engagement was as an apprentice, obviously, the provisions of the U.P. Act and the Act cannot be applied and the forum of adjudication cannot be any forum created under the aforesaid Acts. So far as the questions whether the respondent belonged to a designated trade, the foundation of the claim was a decision of the Madhya Pradesh High Court in M.P. Electricity Board v. Basant Kumar Pandey. The correctness of that judgment was tested in U.P. SEB case and in para 61 of the judgment, it was clearly observed that this Court did not agree with the view subscribed by the Madhya Pradesh High Court."

18. Per contra, Mr.Ajay Khose, learned counsel appearing for the contesting respondents relied upon the judgment of the Supreme Court in Trambak Rubber Industries Ltd. v. Nashik Workers Union and others reported in (2003) 6 SCC 416. He placed reliance upon the passage found in paragraph 6, which is as follows:

"6. The High Court, conscious of its limitations under Articles 226/227 of the Constitution of India, went into the question whether the conclusions reached by the Industrial Court were legally sustainable. Incidentally, it went into the question whether the Industrial Court ignored the material evidence on record. The one and only view that could be taken on the basis of the evidence on record, according to the High Court, is that the persons concerned whose engagement was terminated were not trainees but they were workmen and therefore, their services could not have been terminated without following the due procedure. The High Court held that the action taken by the management was an unfair labour practice within the meaning of the Act and directed reinstatement without back wages."

He contended that if the Court comes to the conclusion that a person held to be not an apprentice on the basis that he is a workman, then under Article 226 of the Constitution, those finding cannot be interfered with.

19. To the same effect, he also relied upon the judgment of this Court in Bank of Madura Ltd., Madurai v. Industrial Tribunal, Madras and others reported in Vol.48 F.J.R. 191. In that case, the workmen were labelled as 'Apprentices' but they were actually extracted the work of permanent worker and they went before the Tribunal. The Tribunal directed the grant of regular scale. When the Award was challenged before this Court, this Court confirmed the Award of the Tribunal. In doing so, this Court in page 199, it observed as follows:-

...There can be no doubt that if an employer, with the object of depriving an employee of his legitimate dues, appoints a person in a permanent post as an apprentice and pays him less, it would amount to unfair labour pratice.

20. The learned counsel also placed reliance upon the latest judgment of the Supreme Court in Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmchari Sanghatana reported in (2009) 8 SCC 556, for the purpose of contending that the employer cannot be allowed to commit unfair labour practice in the name of engaging workers either temporary or trainees. If it is seen in the context of the legal precedents produced before this Court, the order of the authorities do not suffer from any infirmity or illegality.

21. The contention that the settlement provided for a scheme of absorption and therefore, they need not be made permanent cannot accepted in the light of the amendment made to Section 3 whereby the Explanation II was added by the Amending Act 44/1985 and Section 3 will henceforth override any settlement.

22. Therefore, the first writ petition is liable to be dismissed.

23. In respect of the second writ petition, the authority had gone into the issue and had refused permission to retrench only on the basis of materials produced before him. There is no case of interference called for. The Supreme Court vide its judgment in Workmen, Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., reported in 1992 (3) SCC 336 in considering the objection of employers that they do not have any method of challenging the order passed by the competent authority, the Court held that Section 25-N(6) provides for a review as well as a reference to the Tribunal. Therefore, there is no reason why this Court should entertain such a writ petition.

24. Similar view was taken by this Court in M/s.Veejay Lakshmi Engineering Works Limited v. Joint Commissioner of Labour (Authority under Section 25N of the Industrial Disputes Act) in W.P.No.14934 of 1999 dated 30.07.2008. Therefore, the petitioner having not utilised the inbuilt mechanism provided under the I.D.Act, this Court is not inclined to entertain the writ petition.

25. In the result, both the writ petitions will stand dismissed. No costs.

svki To

1.The Deputy Chief Inspector of Factories, (Authority under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act,1981) Coimbatore.

2.The Joint Commissioner of Labour, RTO Office Campus, Dr.Balasundaram Road, Coimbatore 641 022

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