Madras High Court
The Management Of Hanil Tube India Pvt. ... vs The Competent Authority & on 1 February, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2012
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.24208 of 2011 and M.P.No.1 of 2011
The Management of Hanil Tube India Pvt. Ltd.
Rep. by its Asst. General Manager Finance,
Sriperumbudur 602 117. ... Petitioner
Vs.
1 The Competent Authority &
Inspector of Factories
(Authority under the Tamil Nadu
Industrial Establishments
(Conferment of Permanent Status
to Workmen) Act, 1981
Kancheepuram (First Circle),
Sriperumbudur.
2 J.Harikrishnan
3 K.Girin Taid
4 L.Vimal Raj
5 M.Kumar
6 K.Sivakolundu
7 M.Lakshmanan
8 K.Vijayakumar
9 V.Suresh
10 S.Vinothkumar
11 B.Suresh
12 A.Sebastin
13 N.Thiyagarajan
14 K.A.Gulzar Ahmed
15 P.Babu
16 T.Sasikumar
17 J.Doss
18 S.Thiruvengadam
19 T.Kamalakannan
20 K.Chokalingam
21 M.Gopi
22 V.Rajini
23 K.Balaji
24 A.Harikrishnan ... Respondents
The writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorari, to quash the order passed by the first respondent in Application No.2639/2010 dated 26.09.2011.
For Petitioner : Mr.S.Raveendran for
M/s.T.S.Gopalan & Co.
For Respondents : Mr.Balan Haridas
*****
O R D E R
The petitioner management of Hanil Tube India Private Ltd. has invoked the extraordinary writ jurisdiction of this Court with the prayer for issuance of writ in the nature of Certiorari, to quash the order dated 26.9.2011 passed by the respondent No.1 in exercise of jurisdiction under Sec. 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981.
2 The petitioner is engaged in the manufacture of breaks and fuel tubes for four wheelers. The products of the petitioner are mainly supplied to Hyundai Motor India Ltd. for use in high quality Cars being manufactured by it. The machines used in manufacturing activities are also high precision and can be operated by an employee only after he undergoes intensive "on the job training" for a period not less than three years.
3 The workmen employed by the petitioner are classified as apprentices, trainees, probationers and permanent workmen. Permanent workmen are one who undergo intensive training successfully and keeping in view the satisfactory performance during the probationary period are confirmed in service.
4 It is pleaded in the affidavit, that some of employees after completion of training are not appointed as probationer either due to unsatisfactory performance during the training or due to lack of vacancy. Similarly, a probationer can be either confirmed in service or terminated from service based on his work and conduct during the period of probation.
5 The submission of the petitioner is that the respondents/ workmen were trainees engaged by the petitioner and after successful completion of training, were appointed as probationers.
6 The respondents 5, 6 and 7 were confirmed as permanent workers, whereas respondents 2, 3, 4 and 8 to 15 after completion of training, were given orders of appointment, on probation for six months and it was during the period of probation that their services were terminated.
7 The stand of the petitioner is that before the termination of services of the respondents/workmen, they filed an application before the respondent No.1 claiming conferment of permanent status, on the ground that they had worked for more than four years in direct production activities.
8 The stand of the respondents in the application was that the act of the petitioner calling them as trainees was not genuine and therefore, they be granted permanent status reckoning the appointment from very first day of their engagement in service.
9 The application was contested by the petitioner, on the ground that training imparted to the respondents/workmen was in terms of the Standing Orders applicable to the petitioner, and that recruiting process was continuous process in the petitioner's factory. The positive stand of the petitioner was that all the permanent workmen had undergone training like the respondents.
10 The stand of the petitioner before the first respondent was that termination of the respondents/workmen while they were engaged as trainees or employed as probationers could not be questioned before the first respondent, specially when industrial disputes challenging their non employment, was pending adjudication.
11 The stand of the petitioner was also that period of training could not be counted as service period and that the respondents/workmen had not put in 480 days of service in 24 calendar months. Furthermore, that in respect of the respondents 2, 3, 4 and 8 to 15, they were already given the orders of appointment as trainee and the terms of appointment were accepted by the respondents.
12 The respondent No.1 by way of impugned order accepted the application moved by the respondents No.2 to 15 and directed the petitioner to grant permanent status to 23 applicants with effect from the date on which they completed 480 days of continuous service since the date of initial appointment.
13 In deciding the application, the learned Inspector of Factories, the respondent No.1 came to the conclusion that the crucial point to be decided in the case was, as to whether the applicants were actually engaged as trainees/ probationers or the designation was assigned to deprive them of the statutory/non-statutory benefits at par with the permanent workers.
14 The question was answered as under:
"One of the aspects that arise to decide the crucial point would be whether the applicants herein wee actually engaged as Trainees/ probationers or the designations were assigned to deprive them of the statutory/non-statutory benefits at par with the permanent workers. In the case of one of the applicant B.Suresh, the answer is in the negative for the reasons stated hereafter. The fact that the applicant was continuously engaged for more than 480 days in a period of 24 calendar months in the respondent company is not in dispute. The appointment letters filed by the applicant as well as the applicant proves the same and is also reiterated in the oral evidence let in by both the parties. But the applicant has in his pleadings as well as in the oral evidence has specifically asserted that though he was designated as Apprentice, Training Grade A and Probationer he was performing the regular nature of work in par with the other permanent workers. Exhibit W-1 which is the daily production card is one such proof. Apart from that the applicant has also been engaged to do the regular work in the stores of Hyundai Motor India Limited, who is the main customer of th respondent, between 05.01.2008 to 31.12.2008 and 29.06.2010 to 31.12.2010. The Vendor entry permit cards marked as exhibits W-2 to W-4 evidences these work allotted to the applicant. These aspects have also been reiterated by the applicant in his proof affidavit and corroborated in the cross examination also. Moreover, the respondent has admitted that the training assigned to the applicant involves on the job training also and this aspect has also not been elucidated to the benefit of the respondent in the cross examination of the applicant. The respondent has also not proved beyond doubt the nature of training, its timings, the details of the trainers, the outcome of the periodical training, etc. Moreover, it is hard to conceive as to why the applicants who are usually engaged unskilled labour need a rigorous training of 3 years and 6 months of probation on top of it. Under these circumstances, it is very clear that while the respondent had been utilizing the applicant in the regular course of production activities, in par with the regular workmen of the Company, they have been designating them as Apprentice, Trainees and Probationers. In this background, it is pertinent to refer to a judgment of the Hon'ble Supreme Court of India in the case of M/s.Trambak Rubber Industries Limited vs. Nashik Workers Union & others reported in AIR 2003 SC pg. 3329. The relevant portion of the judgment in paragraph 8 is extracted below:
"8. We are of the view that the High Court has not transgressed the limitations inherent in the grant of the writ of Certiorari. The High Court had rightly perceived the patent illegality in the impugned award warranting interference in exercise of its writ jurisdiction. The High Court is right in pointing out that the material evidence especially the admissions of the witness examined on behalf of the Management were not considered at all. Moreover, the conclusions reached are wholly perverse and do not reasonably follow from the evidence on record. For instance, the fact that no appointment letters were issued or filed does not possibly lead to the conclusion that the Management's version must be true. Similarly, if the workers unions had taken the stand that ante-dated appointment letters were issued describing the employees as trainees after the dispute had arisen, it is difficult to comprehend how the would demolish the case the union that the concerned persons were really employed as workmen (helpers) but not as trainees. The industrial Court makes a bald observation that there was no satisfactory evidence on record to suggest that these persons were employed by the respondents as 'regular employees at any point of time. This bald conclusion/observation, as rightly point but by the High Court, ignores the material evidence on record. In fact, the evidence has not been adverted to at all while discussing the issues. There was total non-application of mind on the part of the Tribunal to the crucial evidence. The Management's witness categorically stated that the concerned workers were engaged in production of goods and that no other workmen were employed for production of goods. In fact, one of the allegations of the Management was that they adopted go- slow tactics and did not turn out sufficient work. According to the industrial Court, the fact that the 'trainees' were employed for performing the regular nature of work would not by itself make them workmen. The question then is, would it lead to an inference that they were trainees ? The answer must be clearly in the negative. No evidence whatsoever was adduced on behalf of the Management' to show that for more than one and half years those persons remained as 'trainees' in the true sense of the term. It is pertinent to not the statement of the Management's witness that in June-July, 1989, the Company did not have any permanent workmen and all the persons employed were trainees. It would be impossible to believed that the entire production activity was being carried on with none other than the so-called trainees. If there were trainees, there should have been trainers too. The Management' evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that the appellant-employer resorted to unfair labour practice. There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and with reasonable basis reached by the Industrial Court......"
The manner in which the applicant was terminated during the probation period also casts a serious doubt as to whether there continuance in temporary post for 3 years was only to deprive their permanent status. The termination order passed by the respondent simply states that "the probation period is put to an end with immediate effect." It is not the case of the respondent that the services of the applicants were unsatisfactory. Even if the veil is lifted to substantiate any valid reason for termination of their probation, it is evident that the respondent has not even alleged the reason for termination of their probation either in their pleadings or in their oral/documentary evidences, particularly when the respondent has chosen to regularize a few of the applicants alone, when similarly placed applicants have been denied the permanent status. Furthermore, the termination of all the applicants was subsequent to the claims made by the applicants for conferment of permanent status, well after the respondent had knowledge of the same. In other words, at the time when the claims were made before this forum, the applicants were very much under the employment of respondent Company. Hence, the contention of the respondent that the present application is not maintainable on the ground that since some of the applicants have ceased to be trainees on completion of the training period and have raised individual Disputes before the concerned Labour Officer, cannot be countenanced. Learned counsel for the respondent had relied on a judgment of the Hon'ble Supreme Court of India reported in (2005)7 SCC 524 to substantiate that the appointment of probation for the specific period of time comes to an end by efflux of time. It is the case of an Assistant Professor who raised his grievances before the Tribunal after the probationary period ended by efflux of time. In the instant case, all the applicants were all along treated as Trainees and had completed more than 480 days of continuous service. Subsequently, they were appointed on a permanent basis and placed on probation. As found above, the applicants have been placed on probation for the purpose of discharging their services with a malafide intention of depriving their permanent status. Hence the judgment cited by the respondent may not be applicable to the present case.
The counsel for the respondent had relied on the judgment of the Hon'ble High Court, Madras in Metal Powder Company Limited vs. The State of Tamilnadu & another reported in 1985(2) LLJ 376 (DB) to establish that the period worked as apprentice/ trainee as per the standing order cannot be reckoned. In the Metal Power case the constitutional validity of Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, was challenged wherein badlis or apprentices were sought to be brought within the purview of the Section 3(1) of the Act. The arguments advanced and the view of the Hon'ble Division Bench of the High Court, Madras did not touch on the position of such of those trainees, who were continued to be retained in continuous service for 3 years or so in order to deny them the statutory benefits of a permanent workman. The case of the applicants herein is that though they were termed as trainees and probationers for a period of 3 years, they were all along engaged in the direct production activities, which aspect was not dealt by the Hon'ble Division Bench in Metal Powder Case. The reasoning of the Hon'ble Division Bench in that case is that the concept of a badli worker implies that he is given work only when some permanent worker is absent and he is employed on an independent contract of employment for that day alone. It is in this background that the Hon'ble Division held that the contract of employment comes up only when the badli is employed on a particular day or on a particular number of days and there is no further right of badli worker to ask for work on some other day. It is not the dictum or the intention of the Hon'ble Division Bench to cover such of those workers who, under the guise of Trainees, are engaged for more than 480 days in the regular production activities of an industrial establishment. Hence the reliance of this judgment may not help the respondent's case.
An argument was advanced on the side of the respondents that on absorption the wage pay would be restructured and as per the certified Standing orders applicable to the Company, even they were initially given training before being confirmed. The arguments may not hold good for the simple reason that Standing orders applicable to the Company was certified only on 28.01.2010, much after all the applicants had joined the Company and had completed 480 days of continuous service.
In the result, I hereby allow the application No.2639 of 2010, in so far as it relates to the applicants herein who are entitled to permanency."
15 The learned counsel for the petitioner challenged the impugned order passed by the respondent No.1, on the ground of jurisdiction of the respondent No.1, to adjudicate the question when the relationship of Master and servant had come to an end, therefore , the respondent No.1 had no jurisdiction to deal with the question of termination of service.
16 The impugned order was also challenged on the ground that the finding recorded by the respondent No.1 is perverse being outcome of misreading of evidence on record.
17 In support of the second contention, the learned counsel for the petitioner vehemently contended, that the respondents were appointed as trainees and they accepted the letter of appointment in terms thereof, as the respondents 2 to 15 did not object to appointment as trainees, and had admitted this fact even in the cross examination.
18 The learned counsel for the petitioner referred to cross examination of Mr.P.Aswin Kumar, one of the applicant before the first respondent (not respondent in the writ petition), wherein he admitted that the job of manufacturing break, and fuel tube is highly precision oriented and that the workers engaged in all sections had to work with complete attention. He also admitted that accident can be prevented if training is provided in manufacturing activities. He further admitted that he initially joined at Ambattur on 5.10.2006 and that for initial three years he was under trainee.
19 He further admitted that he joined as trainee and the workmen who were working with him had more than 7 to 8 years experience. He also admitted that training of trainees came to an end after the period of training as stipulated.
20 Similarly, Mr.Suresh, Workman in his cross examination admitted that after cessation of training period, he was terminated during probation period. He further admitted that permanent workers who were working when he joined service, had initially undergone training and were subsequently conferred permanent status. He further admitted that number of employees were confirmed only after successful completion of the training and probationary period. There was also categorical admission of Mr.Suresh that 3 years training is necessary because there are more than 10 sections and more than 60 to 70 machines.
21 The contention of the learned counsel for the petitioner was, that in view of the clear admission by the workmen acceptance of the factual position in the cross examination, would only lead to only one conclusion that the judgment passed by the respondent No.1 is perverse being outcome of misreading of evidence.
22 In support of the contention that period of apprentice/ training could not be taken into account for calculating the days of work for conferment of permanent status, the reliance was placed on the judgment of this Court in the case of Karur Srinidhi Yaarn Mill Ltd. vs. Deputy Chief Inspector of Factories, Erode and another [2011-I L.L.J. 553 (Mad)] wherein this Court was pleased to lay down as under:
"that period of apprenticeship should be excluded while calculating the days of service for the purpose of the above Act. On that basis the workmen concerned were not entitled for conferment of permanent status and the impugned order was set aside."
23 The learned counsel for the petitioner, thereafter placed reliance on the Hon'ble Division Bench judgment of this Court in the case of T.S.Shanmuganathan and 12 others vs. The Deputy Chief Inspector of Factories, I Division, Teynampet, Chennai and another (Writ Appeal No.914 of 2007 decided on 05.02.2008) laying down as under:
"7 Further, it is an admitted case that the applications were engaged by the second respondent as trainee for a period of two years. After the completion of the period of two years as a trainee, the first respondent directed the second respondent to confer them permanent status. The Division Bench of this Court in the case of Metal Powder Company Ltd., Tirumangalam and another vs. The State of Tamil Nadu and another reported in 1985(II) LLN 376 has held that an apprentice or a badli worker could not be included in the word & quot: workman": referred to in Section 3(1) and 3(2) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workman) Act, 1981."
24 The reliance was also placed on the Hon'ble Division Bench judgment of this Court in the case of Metal Powder Co. Ltd. Tirumangalam and another Vs The State of Tamil Nadu and another (1985-II L.L.J. 376) wherein it was held that apprentice or badli workers could not be included in the workmen as referred to Sec.3(1) and 3(2) of the Act and therefore will not be entitled to benefit.
25 The learned counsel for the petitioner vehemently contended that the impugned order being perverse and outcome of misreading of evidence is not sustainable in law.
26 The stand of the learned counsel for the respondents/ workmen on the other hand, was that the proposition of law canvassed by the learned counsel for the petitioner that the apprentice or badli workers cannot be treated to be workmen under Sec.3 of the Act cannot be disputed, but findings recorded by the respondent No.1 was that the respondents No.2 to 15 were regular employees and could not be treated to be a trainee or probationer. It was contended by the learned counsel for the respondents/workmen that positive findings of fact on appreciation of evidence has been recorded that the respondents/ workmen were shown as trainee to deny them right of permanency and were to be treated as regular employees. The stand of the respondents/workmen is that once respondents/workmen were taken to be regular employees from the date of initial appointment, they were entitled to grant of permanent status.
27 It was also the contention of the learned counsel for the respondents/workmen that this Court in exercise of writ jurisdiction cannot re-appraise evidence to come to a different conclusion then the one recorded by the respondent No.1 28 There can be no dispute with this proposition of law that High Court in exercise of writ jurisdiction, cannot re-appraise evidence to come to a different conclusion or interfere with the findings recorded by the quasi judicial authority only on the ground that different view was possible. At the same time, it is also well settled that the writ Court in exercise of its extraordinary jurisdiction can interfere with the findings recorded by the quasi judicial authorities if it is outcome of misreading of evidence and is perverse on the face of it.
29 The learned counsel for the respondents relied on the judgment of the Hon'ble Division Bench of this Court in the case of Superintending Engineer, Vellore Electricity Distribution Circle, Vellore and others vs Inspector of Labour, Perambalur and others (2004(3) L.L.N. 598) wherein the Hon'ble Division Bench of this Court was pleased to lay down as under:
"35. Therefore, I am unable to accept the submission made on behalf of the Board that the exercise of the power by the Inspector of Labour in conferring permanent status after holding necessary enquiries contemplated under Section 5 read along with Rule 6(4) should be construed as arrogating to himself the powers available to the other adjudicatory forums created under the provisions of the Industrial Disputes Act 1947. It will have to be stated that while the exercise of powers vested with the Inspector under the provisions of the Act is summary in nature, the one under the provisions of the Industrial Disputes Act may be an elaborate one. Nevertheless the same does not mean that by exercising the power under the provisions of the Act the Inspector of Labour would be trespassing into the adjudication process contemplated under the provisions of the Industrial Disputes Act. In this context, if the judgment of the Supreme Court reported in ' NIRCHILIYA AND OTHERS ..VS.. MANAGEMENT OF SAFIRE THEATRE, MADRAS AND ANOTHER' (1991 (I) L.L.J. 111) is applied, it can be safely held that where there is no prohibition under the provisions of either the Industrial Disputes Act or the Act, exercise of the power in the manner in which it can be done by the Inspector of Labour under the Act cannot be found fault with. It will have to be stated that such an exercise would be well within the statutory limitations provided under the Act. In fact, in the above referred to judgment of the Hon'ble Supreme Court, the question for consideration was whether the workmen who initially raised an industrial dispute under the Industrial Disputes Act and who did not pursue it till its logical end when chose to move the authority under the then Madras Shops and Commercial Establishment Act, the Hon'ble Supreme Court held that in the absence of any prohibition under either of the enactments, such a course adopted by the workmen cannot be faulted. Therefore, applying the said ratio to the case on hand, it can be safely held that the concerned workmen here were placed in a better footing when they chose to straightaway move the Inspector of Labour under the Act, inasmuch as according to the workmen, having regard to the facts prevailing as on date, they were entitled for the conferment of permanent status as provided under the Act. If such a claim of the workmen was not factually maintainable, it was for the Board to have resisted the said claim with all available materials and could have convinced the Inspector of Labour as the claim ought not to have been countenanced. The Board having miserably failed to perform its duties in the manner expected of it, it cannot be now allowed to contend or complain against the powers exercised by the Inspector of Labour which was within the provisions of the Act. In this context, if the judgment of the Division Bench of this Court reported in 'METAL POWDER CO., LTD., THIRUMANGALAM AND ANOTHER ..VS.. THE STATE OF TAMIL NADU AND ANOTHER' (1985 II L.L.J. 376) is applied, then also it can be safely held that the Inspector of Labour was well within his jurisdiction in holding the proceedings in the manner it was held and in passing the order by directing the petitioner / Board to confer permanent status on the workmen."
30 The reliance was also placed on the judgment of this Court in the case of KSB Pumps Ltd., Coimbatore vs. Deputy Chief Inspector of Factories, Coimbatore and others (2002(4) L.L.N. 389) wherein this Court was pleased to lay down as under:
"Held: Rule 6(4) of Tamil Nadu Industrial Establishments (Conferment Permanent Status to Workmen) Rules, 1981, makes it clear that any employee, who finds his name not entered in the list referred to in sub-rule (2) or finds that the entries have not been made correctly, can make a representation to the Inspector concerned. The Inspector is authorised to examine the representation and issue suitable direction to the employer for the rectification of the register in Form 1 and also to issue directions for the issue of orders conferring permanent status to the workmen concerned.
Even assuming that the Inspector is merely an administrative authority, rule 6(4) itself contemplates that be can make an enquiry and thereafter issue suitable direction to the employer. Since the Inspector can make enquiry, it does not prejudice anybody, if the Inspector makes such an enquiry in the presence of both the parties and calls upon the parties to produce material in respect of their respective contentions."
31 The learned counsel for the respondents also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Trambak Rubber Industries, Ltd. Vs Nashik Workers Union and others (2003(3) L.L.N. 834) wherein it was laid down, that where entire production activity was carried out only by "trainees" for more than a year and a half and in the absence of trainers, such "trainees" were workmen and summary termination of their services amounts to unfair labour practice intended to deny them the legitimate benefits.
32 This judgment of the Hon'ble Supreme Court is of no help to the respondents on the Hon'ble Supreme Court in view of peculiar facts of the case, held that workman though called the trainees, were performing duty of regular employee independently in the absence of trainers. The Hon'ble Supreme Court therefore held it to be unfair labour practice, to deny legitimate benefits. Whereas in the case in hand, the order of termination of the respondents is subject matter of dispute before the Labour Court. Furthermore, in this case, there were clear admission by workmen that they worked under the supervision of the senior employees and not independently. In any case, the question of unfair labour practice can only be adjudicated and determined before the Labour Court and not by way of summary proceedings.
33 The respondent No.1 in given circumstances can look into the evidence to come to the conclusion, that the trainees or probationer are in fact doing regular work and not trainees. This finding has to be recorded on appreciation of pleadings and evidence as done in the present case. The question however to be determined is whether the finding can be sustained in law, in view of the admission by the workmen while appearing as witness.
34 The learned counsel for the respondents also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Bhilwara Dugdh Utpadak sahakaris Ltd. Vs Vinod Kumar Sharma (dead Lrs. & others) (Civil Appeal No.2585 of 2006), wherein the Hon'ble Supreme Court was pleased to lay down that resorting to subterfuge to show the workman as the employees of the contractor to avoid the liability under the various labour statutes by the employers should be brought to an end. This judgment again has no relevance to the case in hand, as the workmen were not treated to be a contract employee.
35 The reliance was therefore placed on the judgment of the Hon'ble Supreme Court in the case of Kalpataru Vidya Samasthe and another vs S.B.Gupta and another [(2005)7 SCC 524] in support of the contention, that the High Court in exercise of revisional jurisdiction cannot re-appreciate the evidence and interfere with the finding, recorded by the learned Court below, unless it is held that the findings recorded by the learned lower Court was perverse or there has been a non application of mind.
36 It is not the contention of the learned counsel for the petitioner that this Court should re-appreciate the evidence. The contention of the learned counsel for the petitioner was that findings recorded by the respondent No.1 is outcome of misreading of pleadings, documentary and oral evidence and that the respondent No.1 ignored the admission of the workmen to record a finding which is perverse, as the admission is the best piece of evidence.
37 Finally, reliance was placed on the judgment of the Hon'ble Division Bench of this Court in the case of Mamundiraj N. & others vs. Bharat Heavy Electricals Ltd., Trichy and another (1999(1) L.L.J. 622) laying down therein that Sec.3 of the Act in pith and substance provides that irrespective of anything contained in any other law, a workman in continuous service for a period of 480 days during a period of 24 calendar months in an industrial establishment would be conferred the status of permanent employee for counting the period of continuous service, the period of interrupted service of specified nature mentioned in the deeming definition, would be included in the service. This proposition again cannot be disputed, but does not arise in the present case.
38 On consideration of the respective contentions, I find that the contentions of the learned counsel for the petitioner deserves to be accepted.
39 The appointment letters issued to workmen showed that they were appointed as trainees for a period of three years. It was also pleaded and proved in evidence that the workmen during this period were working under the supervision of permanent employees. Not only this, in the cross examination, there was clear admission by the workmen that they were appointed as trainees and that all the permanent workmen working in the industry were given permanent status after completion of training period.
40 Admission is best piece of evidence. The respondent No.1 has completely ignored the positive evidence to record the finding on conjecture and surmise. The findings of the respondent No.1 therefore can be safely said to be perverse and thus, is hit by Article 14 of the Constitution of India, giving jurisdiction to interfere with the findings.
41 The second contention of the learned counsel for the petitioner was that the impugned order was without jurisdiction. The contention of the learned counsel for the petitioner was that pre-requisite to exercise jurisdiction under Sec.3 of the Act is that there should be relationship of Master and servant between the parties, and once the service of the respondents were terminated and the order of termination was challenged before the Industrial Tribunal, the respondent No.1 did not have any jurisdiction to entertain or continue with the application.
42 In support of this contention, the learned counsel for the petitioner placed reliance on the Hon'ble Division Bench of this Court in the case of S.Sivakumar and others vs. Deputy Inspector of Factories, Chennai and another (2007(1) L.L.N. 302) wherein this Hon'ble Court was pleased to lay down as under:
"7. On hearing the arguments advanced by the learned counsel appearing on either side and on perusing the above said decisions of the Supreme Court as well as judgment of this Court, the learned single Judge was of the view that it does not appear that the Court had declared the law positively to the effect that termination from service would be a complete bar to move the authority under the Tamil Nadu Act. The Supreme Court had taken note of the pendency of another writ petition by the same parties questioning the orders of termination and the Court felt that they could pursue or wait for the conclusion of that petition. The learned single Judge was also of the view that in Nellai Cotton Mills case, cited supra, also the issue as to whether the petition under the Tamil Nadu Act can be set in motion by a dismissed employee or not, did not arise for consideration specifically.
9. Sec.2(4) of the Act defines "workman" which reads as follows:
"workman means any person employed in any industrial establishment to do any skilled or unskilled, manual supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied [and includes a badli workman.] but does not include any such person,-
(a) who is employed in the police service or as an officer, or other employee of a prison; or
(b) who is employed mainly in a managerial or administrative capacity; or
(c) who, being employed in a supervisory capacity, draws wages exceeding three thousand and five hundred rupees per mensem or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Explanation: Badli workmen means a workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment."
So, "workman" means any person employed in any industrial establishment to do any skilled or unskilled, manual supervisory, technical or clerical work for hire or reward. Further, there must be an employment to do skilled or unskilled, manual supervisory, technical or clerical work. In the present case, the petitioners were employed for the purpose of filling the gas cylinders and they were also engaged in the maintenance work. Therefore, with regard to the employment of the petitioners, there is no dispute that they were "workman" within the meaning of Sec.2(4) of the Act.
10. Coming to the conferment of permanent status to workmen, Section 3 of the Act, which starts with a non-obstante clause, reads as under:
"Conferment of permanent status to workmen:
3(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 uninterrupted 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 lock-out or a cessation of work which is not due to any fault on the part of the workman.
Explanation [I] For the purposes of computing the continuous service referred to in sub-sections (1) and (2) a workman shall be deemed to be in continuous service during 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 law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the course of this 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 Explanation II: For the purpose of this section, 'law' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act"
Therefore, the requirement is a continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months in an industrial establishment. Sub-section (2) contemplates that a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service and there are some exceptions to the said sub-section. Explanation I to the said section deals with computation of the continuous period of service. Therefore, the workmen who are 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 entitled for claiming permanent status. According to the above said section, the requirement is continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months. Therefore, unless and until continuous service of four hundred and eighty days in a period of twenty-four calendar months is satisfied, a workman cannot claim permanent status as per the above said section.
11. The Nellai Cotton Mills case, cited supra, arose under Sec.3(2) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. Part of the provision of Sec.3(2) of the Act was struck down by the High Court and the State preferred an appeal. During the pendency of the appeal the State amended the Act. The Supreme Court observed as follows:
"That apart, the view taken by the High Court, in 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 25-B 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 accounted for the purpose of giving continuity of service. If the discharge is set aside and workman is reinstated by process known to law the workman automatically gets continuity of service. No special provision is necessary for such purposes."
Therefore, from the above said Supreme Court judgment it is understood that to claim permanent status under Sec.3 of the Act, there must be subsistence of master-servant or employer-employee relationship.
12. In Tamil Nadu Civil Supplies Corporation Workers' Union case, cited supra, the workmen who had been employed in the Direct Purchase Centres of the respondent corporation and had rendered more than 480 days of service claimed that they should be confirmed. The respondent corporation refused to confirm them. The workmen filed a writ petition for a mandamus that the provisions of the said Act should be implemented and employees of Direct Purchase Centres who had rendered more than 480 days of service, should be conferred the status of permanent employee. The learned single Judge while disposing of the writ petition directed the employees to approach the Inspector of Labour for determination of the question whether they satisfied the conditions and were entitled to be declared as permanent workers. In the inquiry conducted by the Inspector of Labour it was held that the establishment was not of a seasonal character and the work performed by the concerned workmen was not intermittent. It was not held that the workmen fulfilled the criteria laid down under the Act and were therefore entitled to be made permanent. Challenging the finding of the Inspector of Labour, writ petitions were filed.
14. In view of the above discussion, we are of the considered view that for claiming the permanent status under Sec.3 of the Act, there must be subsistence of the relationship of master-servant or employer-employee between the parties and if this requirement is not satisfied even though the petitioners have completed four hundred and eighty days in a period of twenty-four calendar months in the respondent industrial establishment, in the absence of master-servant or employer-employee relationship between the petitioners and the respondent Management as on the date of making of the application under Sec.3 of the Act, they cannot maintain the application under Sec.3 of the Act seeking permanent status. Unless and until the order terminating their services are set aside by the competent authority, they cannot approach the competent authority under the Act seeking conferment of permanent status as per Sec.3(2) of the Act."
43 The learned counsel for the respondents on the other hand vehemently contended that though it could not be disputed, that it is a pre-requisite that there should be relationship of Master and servant to invoke the jurisdiction under Sec.3 of the Act. But, at the same time, the application once filed cannot be defeated by terminating the service of the workmen. In support, the learned counsel for the petitioner referred to para 14 of the judgment in the case of S.Sivakumar and others vs. Deputy Inspector of Factories, Chennai and another (supra) wherein it was observed that in the absence of master-servant or employer-employee relationship between the petitioners and the respondent Management as on the date of making of the application under Sec.3 of the Act, they cannot maintain the application under Sec.3 of the Act seeking permanent status.
44 On consideration, I find force in the plea of the petitioner. Sec.3 of the Act reads as under:
"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 uninterrupted 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 lock out or a cessation of work which is not due to any fault on the part of the workman.
Explanation 1 For the purposes of computing the continuous service referred to in sub-section (1) and (2), a workman shall be deemed to be in continuous service during 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 law 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.
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.
6. Penalties:- (1) Every employer who contravenes the provisions of section 3 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) Every employer who contravenes the provisions of any rule made under section 10 shall be punishable, for a first offence, with fine which may extend to five hundred rupees, and for a subsequent offence, with fine which may extend to one thousand rupees.
(3) No prosecution for an offence punishable under the section shall be instituted except with the previous sanction of the prescribed authority."
45 The reading of the section 3 shows that the object is to confer a permanent status to workmen which pre-supposes the workmen should not only be in employment on the date of filing of application, but should continue to be in employment during the pendency of the application.
46 Any other view would not fit into the wording of section 3, in view of the fact that statutory right conferred under Sec.3 can be declared only if there exist relationship of Master and servant.
47 This view though harsh to the workmen, but does not take away the right as the workman has the remedy to challenge the termination under the Industrial Dispute Act, and the learned Labour Court while adjudicating the dispute can always take into consideration the statutory right available to workmen under Sec.3 to determine whether terminations were justified or not and whether it was actuated with malafide to deny the right of permanent status, or whether it amounts to unfair Labour practice, but the respondent No.1 cannot declare or grant permanent status to a workman who ceased to be an employee. It would amount to exercise of jurisdiction with respect to a dispute pending before the learned Labour Court. The contention of the learned counsel for the respondents that reading of the judgment of this Court in case of S.Sivakumar and others vs. Deputy Inspector of Factories, Chennai and another (supra) means that status of Master and servant is to be seen on the date of application can be accepted, as it is well settled that judgment is a precedent on a point actually decided and not but could be inferred therefrom.The question before the Court was, as to whether ex-employer can invoke jurisdiction under section 3 of the Act which was answered against the employee. Otherwise also reading of section 3 shows that permanent status can be declared qua the workman who is in employment on the date of passing of order.
48 For the reasons stated hereinabove, the writ petition is allowed and the impugned order is set aside.
49 However, it is made clear that it shall be open to the Labour Court to form an independent opinion on the basis of evidence to be led by the workmen, as this Court is set aside the order passed by the respondent No.1 by holding it to without jurisdiction also, therefore, any finding of the respondents or reason given by the learned Labour Court are only for the purpose of deciding the contentions raised.
Consequently, connected M.P. is closed.
No costs.
01.02.2012 Index: Yes/No Internet:Yes/No vaan To The Competent Authority & Inspector of Factories (Authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 Kancheepuram (First Circle), Sriperumbudur.
VINOD K.SHARMA, J.
vaan
Pre-Delivery order in
W.P.No.24208 of 2011 and
M.P.No.1 of 2011
DATED: 01.02.2012