Madras High Court
Hindustan Petroleum Corporation Ltd., ... vs The Inspector Of Labour on 8 July, 1992
Equivalent citations: (1993)1MLJ1
JUDGMENT Srinivasan, J.
1. The appellant is a corporation which according to their stand engages the services of certain persons as pump-fitters on specific contracts. According to the appellant, such fitters are engaged only on contracts for particular work and such persons who are employed by the appellant are entitled to work for others also. In short, the case of the appellant is that such persons are free-lance fitters.
2. The respondents 2 and 3 claimed that they are entitled to the benefits of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. They filed a petition before the Inspector of Labour under the said Act on 11.2.1984. They claimed that they were working as pump-fitters for five years prior to that date and they were being paid wages at Rs. 530 and Rs. 350 respectively per mensem. Their complaint was that their names were not shown in the register of permanent employees. The Inspector of Labour issued notice to the appellant and a counter-statement was filed by the appellant. In the said statement, the appellant took the stand that the respondents 2 and 3 were free-lance fitters who were free to take up any assignment and that they were not required to work under the supervision of the officials of the appellant-corporation. It was also stated that there was no compulsion they should attend to the break-down calls of the dealers of the appellant. It was also stated that they are not required to report at the office of the appellant-Corporation.
3. A reply to the said statement was filed on 6.8.1984. Unfortunately, a copy of the same is not made available to us. It is seen from the order of the Inspector of Labour that he had discussions with the parties on several dates. The first discussion was on 6.8.1984. On that date, the respondents filed their statement dated 4.8.1984 and along with it, they filed a wage slip and copies of letters issued by the appellant-corporation and its predecessor. On that date, the appellant-corporation was not present for the discussion.
4. Again discussions were held on 18.8.1984. It was represented by the appellant that it would discuss the issue with the head-office and try to settle the matter including payment of arrears from 1982 to respondents 2 and 3 herein. The matter was adjourned further. Final discussions were held on 4.9.1984, on which date both the parties reported since there was no settlement, they stick to their original stands taken in the statements dated 15.6.1984 and 4.8.1984 respectively.
5. The Inspector of Labour proceeded to pass an order on 20.9.1984. After referring to the discussions, he extracted the provisions of the Act and referred to the documents filed before him by the parties along with their respective statements. Ultimately, he observed as follows:
There is no dispute with regard to the number of years of service put in by the petitioners as they are employed from 1972 and 1978 respectively. Even on the day of meeting on 18.8.1984, the respondent-management expressed their willingness for a discussion of the issue of permanency with their head-office and to try to settle the issue including the payment of arrears from the year 1982. But they did not do so for the reasons best known to them and stuck to their original stand. On the other hand, the petitioners and the union have filed their records along with their letter dated 4.8.1984 to substantiate their stand. Even from the enclosures sent by the respondent-corporation with their letter dated 15.6.1984 it is proved beyond doubt that the petitioners are workmen coming under the definition of Section 2(4) of the above Act, 1981, and they are entitled to inclusion of their names in the register of workmen in Form No. 1 under Rule 6(1) of the Rules, 1981 and the respondent-management should have exhibited the list as per Rule 6(2).
6. He concluded that on the materials placed by the parties before him at the time of the enquiry conducted by him on various dates, he was convinced that respondents 2 and 3 were workers as defined in the Act and they have got prescribed service as stipulated in Section 3(1) of the Act for conferment of permanent status to them. Hence, by exercising the powers conferred by Rule 6(4) of the Rules framed under the Act, he directed the appellant-management to confer permanent status to respondents 2 and 3 on the date on which they had completed the service as contemplated in the Act and issue necessary orders in that regard.
7. Aggrieved by the said order, the appellant filed W.P. No. 127 of 1985. The writ petition was heard by a learned single Judge of this Court and by order dated 15.7.1988, the writ petition was dismissed. The learned Judge referred to the three letters which were produced by respondents 2 and 3 before the Inspector of Labour along with the statement dated 4.8.1984. The first letter was dated 1st March, 1972. It was written by Esso, the predecessor of the appellant corporation, introducing one of the respondents as their new company fitter. It was addressed to one of the dealers. The next letter is dated 20.5.1975. It was written by the appellant. In that letter, one of the respondents was introduced as a new pump fitter for Tirunelveli area. In that letter that is a reference about his salary being fixed at Rs. 400 per month. It is also stated that in addition to the salary, actual conveyance and batta of Rs. 5 per day is to be paid for staying outside headquarters. The last letter is dated 21.5.1975 again by the appellant-Corporation to all the dealers in Tirunelveli sales area and introducing one of the respondents as the Company's fitter.
8. Relying on the above letters, the learned Judge held that it was not open to the management to contend that respondents 2 and 3 are not their workmen within the meaning of the Act. The learned Judge proceeded to observe as follows:
The management is trying to set up this case presently without laying any foundation before the officer concerned. It wants to take advantage of its own omission and cries hoarse saying that no opportunity has been given. As a matter of fact, I was even inclined to grant a remand. But, the reason why I refuse is, if the management is grossly negligent in pulling forth its case, it cannot now be allowed to improve its case, when the three documents clinch the issue. The proceedings of the Inspector of Labour will have to be necessarily upheld. It is found that the workmen and the union have filed a record along with their letter dated 4.8.1984 to substantiate their stand.
The learned Judge then dismissed the writ petition upholding the order of the Inspector of Labour.
9. In this appeal it is contended by learned Counsel for the appellant that a proper opportunity was not given to the appellant-Corporation to prove its stand taken before the Inspector of Labour. It is stated that in the course of discussion a representation was made that the matter shall be settled by consulting with the head office and in the next discussion when the Inspector of Labour was informed that there was no settlement, he proceeded to pass the order impugned in the writ petition, without any enquiry. According to learned Counsel, if an enquiry had been held by the Inspector of Labour, the appellant would have proved that respondents 2 and 3 were not workmen as defined by the Act and they were only contractors for service and not contractors of service.
10. Section 2(4) of the Act defines "workman" as a person employed in any industrial establishment to do any skilled or unskilled, manual, supervisory, technical or electrical work for hire or reward, whether the terms of employment be express or implied. It is not necessary to refer to the exceptions mentioned in the definition. Section 3 of the Act provides for conferment of permanent status to workmen if certain conditions are satisfied. Section 4 of the Act provides for appointment of Inspectors. The powers and duties of such inspectors are set out in Section 5 of the Act. Under Section 5(b) of the Act, the Inspector may, within the local limits for which he is appointed, make such examination of the industrial establishment and of any registers, records and notices and take on the spot or elsewhere the evidence of such person as he may deem necessary for carrying out the purposes of the Act. In the Rules framed under the Act, Rule 6 provides for maintenance of registers by employers, Rule 6(4) is relevant for the purpose of this case. It reads as follows:
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 or finds that though entries regarding his service have been made correctly but he has not attested the entries in the register of workman in Form I may make a representation to the Inspector concerned. The Inspector after examining the representation or after making enquiries may issue suitable directions to the employer for the rectification of the register in Form 1 or for the issue of orders conferring permanent status to the workman concerned.
Rule 6(4) contemplates examination by the Inspector of the representation and making enquiries and thereafter issuing suitable directions to the employer for the rectification of the register, if necessary.
11. Thus, the Acts as well as the Rules contemplate that the Inspector incharge shall make such enquiry as may be necessary to decide whether the claim put forward by the persons concerned is true or not. In the present case, the claim of respondents 2 and 3 was that they were entitled to be conferred permanent status in view of the fact that they were Workmen within the meaning of the Act and that they had put in the period of service as required by the Act. But the procedure adopted by the Inspector in this case does not seem to be in consonance with the provisions of the Act and the Rules. After finding that there can be no settlement between the parties, the Inspector ought to have given an opportunity to both the parties to produce relevant evidence to substantiate their respective cases, In the absence of such an opportunity, it is certainly open the affected party to contend that the order of the Inspector of Labour is vitiated.
12. In the present case, no doubt some documents were filed by respondents 2 and 3 along with their letter dated 4.8.1984. Similarly, the appellant could have also filed documents along with the statement dated 15.6.1984. Undoubtedly, the appellant filed an enclosure with the statement dated 15.6.1984, but the copy of which is not made available to us. We do not know what exactly the enclosure contains. In the statement dated 15.6.1984, it is stated that the enclosure is a copy of the bill submitted by one of the free-lance fitters wherein he had clearly indicated that he is a contractor of Hindustan Petroleum Corporation Ltd. If that statement is correct, then the document is certainly relevant for the purpose of deciding the question whether respondents 2 and 3 are workers or not. But no reference is made to the document by the Inspector in his order.
13. Reliance is placed on the Letters issued by the appellant in 1975 and its predecessor in 1972. No doubt, they refer to one of the respondents as company's fitter and they also refer to the salary fixed. But the specific case of respondents 2 and 3 in the statement filed before the Inspector of Labour as well as in the Counter affidavit filed in the writ petition is that they were employed for five years prior to the presentation of the petition to the Inspector of Labour. That would take them to 1979 only. Whether they should be pinned down to that statement and whether the documents of 1973 and 1975 on which reliance is now placed by them are relevant or not have to be considered and that can be done only if proper opportunity is given to respondents 2 and 3 to explain their statement made in the first petition given to the Inspector of Labour and the statement made in the counter affidavit in this Court.
14. Thus, we are satisfied that both sides did not have sufficient opportunity to put forward their respective cases and establish the same before the Inspector of Labour. It is the only ground on which we think that the matter should go back to the Inspector of Labour. We are not deciding the merits of the case as to whether respondents 2 and 3 are workmen within the meaning of the Act. That can be decided only after entire evidence is recorded and considered by the authority in question, namely, the Inspector of Labour, II Circle, Madras-600 006.
15. We are aware that the matter is very old and the interests of justice require an early disposal of the matter. The Inspector of Labour is directed to conclude the enquiry on or before 30.9.1992. Both parties shall place all the records on which they want to rely before the Inspector of Labour within the time to be given by him for such purpose. If any party is at default with regard to filing of records, such party has to suffer. The matter should not be prolonged beyond 30.9.1992. 16. The writ appeal is allowed with the above direction. The order of the learned single Judge dated 15.7.1988 made in W.P. No. 127 of 1985 and the order of the Inspector of Labour dated 20.9.1984 are set aside and the matter is remanded to the file of the inspector of Labour, II Circle, Madras-600 006 for fresh disposal in the light of the observations made above and in accordance with the relevant provisions of Law. There will be no order as to costs.