Madras High Court
The Senior Regional Manager, Tamilnadu ... vs The Inspector Of Labour And Ors. ... on 16 June, 2008
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
JUDGMENT N. Paul Vasanthakumar, J.
1. By consent of both sides, the writ petition is taken up for final disposal.
2. W.P. No. 27249 of 2005 is filed to quash the order of the first respondent dated 6.6.2005 wherein the first respondent ordered permanent status to the respondents 2 to 7 from 8.10.2004 in the Modern Mill owned by the Tamil Nadu Civil Supplies Corporation.
3. W.P. No. 27250 of 2005 is filed to quash the order of the first respondent dated 6.6.2005 ordering permanent status to the second respondent in the said Modern Rice Mill from 12.10.2005.
4. The case of the Civil Supplies Corporation, who is the petitioner in both the writ petitions is that the petitioner Corporation had entrusted the work of loading and unloading of stocks at godown to Maistrys, who in turn engage loadmen and sweepers, while lorries arrive at the godown. The said loadmen and sweepers are engaged by the said Maistry for doing the work of loading, cleaning and sweeping paddy/rice spilled during the course of loading and unloading and they are paid wages by the Maistry concerned. The Corporation had neither paid their wages directly nor had any Master-Servant relationship at the time of sweeping and cleaning or loading and unloading. The Corporation is not maintaining any record with regard to the service particulars of the respondents.
5. The respondents 2 to 7 in W.P. No. 27249 of 2005, who are sweepers and respondent No. 2 in W.P. No. 27250 of 2005, who is loadman, filed application before the first respondent claiming permanent status under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, on the ground that they are continuously working in the godown for more than ten years and they have completed 480 days of continuous service within a period of 24 calendar months. According to the petitioners, the Corporation is fully owned by the Government of Tamil Nadu and therefore it is exempted from the applicability of the Tamil Nadu Shops and Establishments Act, 1947, as well as the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and therefore the first respondent has no authority to deal with the petitions filed by the respective respondents in these writ petitions. According to the petitioners the said ground was raised as preliminary objection and requested further time to file detailed counter statement and the first respondent, without considering the said objections, has allowed the petitions filed by the workmen/respondents in these writ petitions holding that the said act will apply to the petitioner Corporation and the respondents, having worked for more than 480 days continuously within a period of two years, are entitled to get permanent status from the date of their petitions i.e, from 8.10.2004.
6. The said order passed by the first respondent granting permanent status to the workmen/respondents are challenged in these writ petitions by contending that the first respondent has no jurisdiction to entertain the claim made by the respondents and order permanent status as the petitioner Corporation is fully owned by the Government of Tamil Nadu. In the application filed before the first respondent, respondents in these writ petitions have stated that they are working as sweepers/loadman in the Modern Rice Mill, Neyveli, for more than 10 years and they have completed more than 480 days of service within a period of 24 calendar months and therefore they are to be made permanent under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and the said claim of the respondents were resisted by the petitioner only by raising objection that the petition is not maintainable before the first respondent in view of the judgment of this Court reported in 2003 (2) LLN 89 (T.N. Civil Supplies Corporation Ltd. v. B. Purishothaman) holding that Tamil Nadu Civil Supplies Corporation is established by the State Government and therefore Tamil Nadu Shops and Establishments Act, 1947 cannot be applied against the Civil Supplies Corporation Limited.
7. The first respondent overruled the objection raised by the petitioners by stating that in the Judgment of the Supreme Court reported in 1988 (2) LLJ 423 (C.V. Raman, etc. etc. v. Bank of India etc. etc.) the Supreme Court held that the establishments functioning under the Government departments cannot be treated as Government departments. Further, the first respondent taking note of the permanent absorption given to similarly placed persons by the Senior Regional Manager, Cuddalore, ordered permanent absorption of the respondents in these writ petitions by applying Articles 14 and 16 of the Constitution of India. The first respondent ordered to give permanent status to the respondents in these writ petitions from the date of their application i.e., from 8.10.2004.
8. Whether the Tamil Nadu Civil Supplies Corporation Limited is amenable to the authorities under the Tamil Nadu Shops and Establishments Act, 1947, was considered by a Division Bench of this Court in the decision reported in 2007 Ind Law Mad 1426 (Chairman & Managing Director, T.N. Civil Supplies Corporation Ltd., Chennai and Anr. V. R. Kanagasundaram v. Ors.). The Division Bench has not approved the decision taken by the learned single Judge in the decision reported in 2003 (2) LLN 89 (T.N. Civil Supplies Corporation Ltd. v. B. Purishothaman). In paragraphs 9, 10 and 11 the Division Bench held as follows:
9. We have noticed the judgment aforesaid and have doubt with regard to the finding of learned single Judge that the 'Corporation' is an establishment under the Government of Tamil Nadu.
So far as the Supreme Court decision in the case of C.V. Raman (supra) is concerned, that was a case of State Bank of India and that of some other nationalised banks. The question fell for consideration before Supreme court whether the State Bank and other nationalised banks are establishments under the Central Government for the purpose of Section 4 (1) (c) of the Tamil Nadu Shops and Establishments Act. Having noticed different provisions of Act 23 of 1955 (State Bank of India Act, 1955) and Act No. 5 of 1970 (The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970), the Supreme Court held that the term "under" as referred to, leaves no manner of doubt that the State Bank of India and the Nationalised Banks are clearly establishments under the Central Government. The aforesaid finding was given taking into consideration the different Act and the control of the Central Government on the State Bank of India and Nationalised Banks.
It was noticed that Reserve Bank of India together with such other persons and the shareholders of the State Bank under the provisions, have the powers to acquire and hold movable and immovable property, any increase in the issue capital beyond Twelve Crores and Fifty Lakhs Rupees could not have been made without the previous sanction of the Central Government. The appointment, promotion or increment contemplated by the provisions has to be confirmed by the Central Government. Section 18 contemplates that in the discharge of its functions, the State Bank shall be guided by such direction in the matter of policy involving public interest as the Central Government may in consultation with the Governor of the Reserve Bank and the Chairman of the State Bank give to it. If any question arises whether the direction relates to a matter of policy involving public interest, the decision of the Central Government has to be final.
Having noticed such provisions, including power of Central Government to liquidate the State Bank and to frame rules in regard to all matters, the Supreme Court came to a definite conclusion that State Bank of India was an establishment of Central Government for the purpose of Section 4 (1) (c). Similar finding was given with regard to the other Nationalised Banks.
10. In the present case, no pleading has been made by the Corporation as to in which manner it is guided and controlled by the State of Tamil Nadu. Even the State of Tamil Nadu is not a party to the writ petition to find out whether they accept the Corporation as its establishment. Without taking into consideration all the relevant provision, we are of the view that it is not open to the Court to give any finding whether the State Government is having deep and pervasive control over the Corporation and thus it is an establishment under the State of Tamil Nadu. From the judgment of the learned single Judge in Tamil Nadu Civil Supplies Corporation case (supra), it will be evident that the State of Tamil Nadu was not made a party in the said case nor all the relevant facts were discussed to give such finding. Therefore, we have expressed our doubt with regard to the finding of the learned single Judge, which we are not accepting, being not binding on Division Bench.
11. under Section 4, while the categories of persons and establishments have been exempted under the Act, Section 6 empowers the State Government to exempt permanently or for specified period any establishment or a class of establishments, a person or class or persons from all or any of the provisions of the said Act subject to such condition as the State Government may deem fit.
From paragraphs 5 and 6 of the judgment rendered in the Tamil Nadu Civil Supplies Corporation case (supra), it will be evident that the State Government issued one G.O. Ms. No. 379 dated 17th Feb., 1984, in exercise of powers conferred under Section 6 of the Act. By the said notification, the State Government has exempted all the establishments under the control of the Tamil Nadu Civil Supplies Corporation in Tamil Nadu from all the provisions of the said Act, except Sections 11 (1), 25, 31, 41, 43, 45, 50 and 51 of the Act, subject to the conditions mentioned therein for a period of three years on and from 15th March, 1984.
If it is to be presumed that the Corporation is an establishment of the State Government and, thereby, stands exempted under Section 4 (1) (c) of the Act, it has not made clear as to what was the occasion for the State Government to issue a notification of exemption under Section 6 of the Act in respect of the same Corporation. In any case, such exemption had not been granted in respect of Section 41, under which an appeal could be entertained.
Further, from the notification, G.O. Ms. No. 379 dated 17th Feb., 1984, issued under Section 6, it will be evident that the exemption was granted for a period of three years and was not applicable for Section 41 and, thereby, it could be argued, as suggested by the learned Counsel for the respondent that the appellate authority had jurisdiction to pass order under Section 41 (2) of the Act.
In fact, the Division Bench upheld the decision of the learned single Judge made in W.P. No. 1945 of 1997 dated 13.2.1997, challenging the order of the Deputy Commissioner of Labour in granting relief to the first respondent therein by dismissing the writ petition filed by the very same petitioner herein, namely, Tamil Nadu Civil supplies Corporation Limited.
9. In view of the Division Bench decision cited supra, I am of the view that the petitioners are not justified in contending that the first respondent in these writ petitions has no jurisdiction to entertain the claim petition filed by other respondents in these writ petitions.
10. It is to be noted that neither in the counter affidavit filed before the first respondent nor in the affidavit filed in support of these writ petitions, petitioners have stated that the respondents in these writ petitions have not worked for more than 480 days within a period of two years. The only objection stated is that the respondents are engaged by Maistry and no records are available. In the counter affidavit filed by the petitioners before the first respondent, even that stand was not taken by the petitioners. Hence the said stand now taken cannot be sustained. Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, clearly states that 'notwithstanding anything contained in any law for the time being in force, every workman, who is in continuous service for more than four hundred and eighty days in a period of twenty-four calendar months in an industrial establishment shall be made permanent'. From the perusal of the above section it is evident that it is the duty of the petitioners to give permanent status to the contesting respondents in these writ petitions on their completion of 480 days of service within a period of 24 calendar months. The petitioners having failed to perform their statutory duty, the contesting respondents approached the first respondent seeking relief for conferring permanent status to them. The factual aspect as to whether these respondents have satisfied the requirements of Section 3 of the Act, is not in dispute. Hence the first respondent allowed the applications filed by the contesting respondents and ordered to give permanent status from the date of the application i.e, from 8.10.2004.
11. In the decision reported in 1991 WLR 417 (K. Duraisamy v. Te Tamil Nadu Electricity Board) this Court allowed a writ petition filed by a Sweeper, worked in the office of the Superintending Engineer, Mettur Electricity System by applying Section 3 of the Tamil Nadu Act 43 of 1981 and in paragraph 3, by following an order passed in W.P. No. 8298 of 1993, wherein it was held that ...the post of the Sweeper in the respondents establishment is an unskilled post and appointments of such sweepers can be made without resorting to calling for applications from employment exchange. It is needless to state that the sweeper does not require any special skill and high educational qualifications for discharging his duties as a sweeper. When the petitioner has put in more than 480 days of continuous uninterrupted service in a period of 24 calendar months in the establishment of the respondents as a part-time sweeper the petitioner is entitled to the conferment of the permanent status as contemplated in Section 3 of the Act. In these circumstances, the respondents are under a statutory obligation to appoint the petitioner as a Sweeper on a permanent status. There is absolutely no justification for denying the permanent post to the petitioner, notwithstanding the fact that the petitioner has made several representations to the respondents requesting them to appoint him permanently as a Sweeper in the office of the third respondent. In view of the above discussion, the petitioner is entitled to the relief claimed in the writ petition.
Again, this Court in the decision reported in 1993 WLR 152 (T.N.Water Supply and Drainage Board v. The Secretary, Water Kovilpatti Supply Scheme Maintenance Workers Union) upheld the award of the Labour Court, granting permanent status to 27 workmen, employed in the Tamil Nadu Water Supply and Drainage Board and in paragraph 16 held as follows,
16. It was stated before the Labour Court, and it is so stated before me that all the workmen involved in the dispute were engaged in Kovilpatti Water Supply and Maintenance Scheme under the control of the Board, which scheme came into existence in the year 1971, to provide supply to more than three lakhs of people in two Municipalities, three Town Panchayats and 19 Village Panchayts. They were categorised as Electrician, Pile Line Fitter, Cleaner, Watchman, etc. These particulars are not disputed. Thus, they are men and women who were engaged in one or the other activity which can only be characterised as a manufacturing process. For this reason, the only conclusion that can be recorded is that employees under the TWAD Board who are engaged in manufacturing process are workers in a factory and thus entitled to the benefits of the conferment of permanent status under the Tamil Nadu Act 46 of 1981.
12. It is also not disputed by the petitioners in these writ petitions that permanent status has been given to other similarly placed persons by the senior Regional Manager, Cuddalore, which was noticed by the first respondent while granting relief to the workmen/respondents. Thus the first respondent applied Articles 14 and 16 of the Constitution of India for granting the relief to the contesting respondents. Since the application filed by the workmen/respondents are maintainable before the first respondent and as there is no factual dispute raised by the petitioners, no case is made out to interfere with the order passed by the first respondent granting permanent status to the respondents 2 to 7 in W.P. Nos. 27249 and second respondent in W.P. No. 27250 of 2005.
The writ petitions are dismissed. No costs. Connected miscellaneous petitions are also dismissed.