Madras High Court
J.Devadass vs Inspector Of Labour on 27 September, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.22016 of 2011
1.J.Devadass
2.K.Chitti Babu
3.A.Mohan Rao
4.K.Joseph
5.T.Joshua
6.J.Prabakar
7.J.D.Moses
8.A.C.Chandraiah
9.J.Ashrivadam
10.V.Emmanieh
11.T.Rojesh
12.K.Babu
13.Y.Mark
14.K.Rajesh
15.T.Vandanam
16.S.Elisha
17.B.Jeevaratnam
18.M.Sudhakar
19.K.Jacob
20.T.George
21.T.Esrail
22.K.Koriaya
23.J.Lathan
24.S.Samson
25.K.Samuvel
26.K.Barna Bas
27.J.Aarun
28.Y.Yohan
29.J.Yobu
30.T.Gabrich
31.P.Yesaiya
32.S.Prabu Das
33.T.Raju
34.K.Chinnaiah
35.J.Ruben
36.J.Ezraiah
37.T.Nameiya
38.S.Gabrieh
39.N.Gangadharan
40.P.Joseph
41.K.Ramesh
42.K.Ashok
43.K.Anand Rao
44.P.Azhical
45.K.Sudhakar
46.N.Ruben
47.J.D.Shangarbabu
48.B.Venkataiah
49.M.Mariya Das
50.T.Mohan
51.Y.Emmanivel
52.G.Sudhakar
53.J.Venkataratnam
54.K.Deva
55.G.Kondaiah
56.J.Prabu Das
57.J.G.Elisha
58.E.Yovan
59.V.Bawa Das
60.K.Manohar
61.T.Rajendran
62.K.David
63.K.Raju
64.J.Chinna Babu
65.Y.Tarun
66.S.Guravaiah
67.S.K.Gabrieh
68.K.Dhanaiah
69.K.Asirwadam
70.K.Issac Babu
71.G.Ajirath
72.K.Abel
73.K.Yesu
74.Y.David
75.N.Immanuvel .. Petitioners
Vs.
1.Inspector of Labour,
(Authority under the Tamil Nadu
Industrial Establishment (Conferment of
Permanent Status to Workmen) Act,
Kancheepuram.
2.Management,
Sathyabama University,
Jeppiar Nagar,
Old Mahabalipuram Road, Chennai-600 119. .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the concerned records from the first respondent, quash the order of the first respondent, dated 15.12.2010, bearing Na.Ka.No.E/1824/09 and consequently to direct the second respondent to regularize the services of the petitioners as Scavengers from the date when they completed 480 days of continuous service with all attendant benefits, monetary benefits and all other consequential benefits.
For Petitioner : Mr.Balan Haridas
For Respondents : Mr.V.Subbiah, Spl.G.P for R-1
- - - -
ORDER
The 75 petitioners have come forward to challenge a common order passed by the first respondent Inspector of Labour also the Authority under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 (for short Tamil Nadu Act 46/1981) at Kancheepuram. By the impugned order, dated 15.12.2010, the authority had dismissed the application filed by the petitioners seeking for grant of permanent status in terms of Section 3(1) of the Tamil Nadu Act 46/1981. Challenging the same, the writ petition came to be filed.
2.Heard the arguments of Mr.Balan Haridas, learned counsel for the petitioners and Mr.V.Subbiah, learned Special Government Pleader appearing for the first respondent. This court is not inclined to entertain the writ petition for the following reasons.
3.The claim of the petitioners was that in the second respondent Deemed University at Chennai, there are more than 200 sanitary workers and they had worked beyond 480 days in 24 calendar months. Hence they are entitled for grant of permanent status and approached the first respondent authority. Their stand was also supported by the trade union, i.e., New Democratic Labour Front. On receiving the application from the petitioners, the first respondent sent notice to the second respondent Deemed University and had conducted enquiry on several dates. But the second respondent had contended that their deemed university do not come under the provisions of the Tamil Nadu Act 46/81 and the Act do not apply to them. It is not an industrial establishment within the meaning of Section 2(3)(g) of the Act as there is no notification declared to be an industrial establishment for the purpose of the Act.
4.On the side of the workmen, they had also relied upon a judgment of this court in Manuelmony Matriculation School Vs. Principal Labour Court and another reported in 2008 (1) LLN 387. During the course of the hearing, they had also contended that the second respondent deemed University is receiving money from the students and is conducting institution for profit motive. Hence, it will be covered by the provisions of the Tamil Nadu Shops and Establishments Act. Any establishment covered under Section 2(3)(e) of the Tamil Nadu Shops and Establishment Act is declared to be an industrial establishment. But the authority had decided the issue on the basis of the objection raised by the management and found that under Section 2(6), the term establishment is defined under the Tamil Nadu Shops and Establishment Act, 1947, which includes the shops, commercial establishments, etc. Since reliance was placed upon the definition "shop" under Section 2(16), it is necessary to refer to the said definition found under the Tamil Nadu Shops and Establishments Act, which reads as follows:
"2(16)"Shop" means any premises where any trade or business is carried on or where services are rendered to customers and includes offices, store-rooms, godowns and warehouses, whether in the same premises or otherwise, used in connection with such business but does not include a restaurant, eating-house or commercial establishment;"
5.The authority held that the second respondent which is deemed university will not come under the provisions of the Shops Act. The judgment relied upon by the petitioner, i.e., Manuelmony Matriculation School's case (cited supra) is a judgment relating to the application of the Industrial Disputes Act, 1947 to educational institutions. It does not define the term "industrial establishment". The authority also relied upon a judgment of the Supreme Court in Ruth Soren v. Managing Committee, East I.S.S.D.A.,reported in (2001) 2 SCC 115. In that judgment, the Supreme Court while construing the application of Bihar Shops and Establishments Act in relation to educational institutions held that it will not come within the definition of establishment within the meaning of the Shops Act. Even if it is an industry for the purpose of the I.D. Act, that by itself will not help to construe that it was an establishment covered by the Shops Act. Since the authority relied upon Ruth Soren's case (cited supra), it is necessary to refer to paragraphs 4 and 5 of the said judgment, which reads as follows:
4.An establishment for the purposes of the Act means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary thereto. Concept of industry, as defined under the Industrial Disputes Act, would include any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen. There is an organised activity between employers and employees to impart education. Such an activity, though may be industry will not be a profession, trade or business for the purposes of Article 19(1)(g) of the Constitution, would not be one falling within the scope of establishment under the Act. Therefore, the view taken by the Division Bench of the High Court is unexceptionable. The High Court did appreciate that Unni Krishnan case1 itself made a distinction between what was stated in Bangalore Water Supply & Sewerage Board v. A. Rajappa2.
5.In Corpn. of City of Nagpur v. Employees4, LLJ at p. (540) this Court held the Education Department of the Corporation to be an industry. The reason given is that imparting education amounts to service and can be done by a private person also. In University of Delhi v. Ram Nath5 this Court held that imparting education is not an industry as the work of the University cannot be assimilated to the position of trade, calling, business or service and hence cannot be an industry. The majority view in Bangalore Water Supply & Sewerage Board v. A. Rajappa2 a decision of seven-Judge Bench, is that in the case of an educational institution, the nature of activity is exhypothesi and imparting education being service to community is an industry. Various other activities of the institution such as printing press, transport department, clerical, etc. can be severed from teaching activities and these operations either cumulatively or separately form an industry. Even so, the question for consideration is whether educational institution falls within the definition of establishment carrying business, trade or profession or incidental activities thereto. Establishment, as defined under the Act, is not as wide as industry as defined under the Industrial Disputes Act. Hence reliance on Bangalore Water Supply & Sewerage Board v. A. Rajappa2 for the appellant is not of any help."
6.Even earlier, this court in Management, Agricultural Research Station Vs. Commissioner of Labour reported in 1998 Supp (MLJ) 407 held that the Shops and Establishment Act will not apply to the Tamil Nadu Agricultural University. But, however in that case, this court replied upon the exemption provided under Section 4(1)(c) in respect of the establishments under the control of the State Government. In the present case, the second respondent Deemed university is not an establishment created by the State Government. Therefore, that decision may not help the present case. But since the Supreme Court has authoritatively pronounced that educational institution are not establishments coming under the Shops and Establishment Act, the petitioners cannot invoke the provisions of the Tamil Nadu Act 46/81. Hence the first respondent was correct in rejecting the claim made by the petitioners. There is no case made out to take a different view.
7.Accordingly, the writ petition will stand dismissed. No costs.
8.It is made clear that since the provisions of the ID Act are applicable, it is always open to the petitioners or their union to raise an appropriate industrial dispute relating to the service grievance projected by the petitioners before the forum provided under the Act.
vvk To Inspector of Labour, (Authority under the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, Kancheepuram