Madras High Court
Plantation Workers Union Congress, ... vs The Tamil Nadu Tea Plantation ... on 4 April, 2003
ORDER Padmanabhan, J.
1. In this batch of writ petitions, the petitioner, a Trade Union, has prayed for the issue of a writ of certiorari to call for the records of the proceedings of the Inspector of Plantation, Gudalur, in the respective proceedings dated 22.10.97 and quash the same insofar as it confers permanent status on the workmen from the date of order and consequentially direct the 2nd respondent to pass order conferring permanent status on the workmen with effect from the date of completion of 480 days in service.
2. In all the writ petitions, identical relief has been claimed contending that while conferring permanent status to plantation labourers, such conferment should have been ordered from the date on which the respective plantation worker has completed 480 days and not from the date of communication of the order passed by the 2nd respondent. The facts are not in controversy. Hence, it is not necessary to refer to the case and counter case of the parties.
3. The workmen moved an application under The Tamil Nadu Establishments (Conferment of Permanent Status to Workmen) Act, 1981, hereinafter called the Act, before the 2nd respondent. By proceedings dated 22.10.97, the claims of the respondents were considered and sustained by the 2nd respondent. The 2nd respondent also sustained the claim of each workmen, for whose benefit this batch of writ petitions have been filed holding that the workmen has put in 480 days of continuous service within a period of 24 calendar months and, therefore, they are entitled for conferment of permanent status. However, towards the end of his order, it has been directed that the permanent status shall be conferred from the date of communication of his proceedings.
4. According to the petitioners, the conferment of permanent status should have been ordered with effect from the date on which each of the worker has completed 480 days of continuous service within a period of 24 calendar months. The present direction that permanent status shall be conferred with effect from the date of communication of the proceedings of the 2nd respondent is being challenged as arbitrary, denial of valuable rights conferred on the workmen for a considerable period and the denial of benefits accrued by the statutory provisions of the Act.
5. The only point that arises for consideration in this batch of writ petitions is :-
"Whether the workers, who moved the 2nd respondent are entitled for a direction for conferment of permanent status from the date on which each one of them completed 480 days of continuous service within a period of 24 calendar months ? or only from the date on which the proceedings of the 2nd respondent is communicated ?"
6. There is no dispute that the workers have completed 480 days of continuous service within a period of 24 calendar months long prior to their moving the 2nd respondent. Section 3 of the Act mandates that notwithstanding anything contained in any law for the time being in force, every workman, who is in continuous service for a period of 480 days, within a period of 24 calendar months, in an industrial establishment, he or she shall be made permanent. Sub-section (2) of Section 3 directs that when a workman shall be said to be in continuous service. Section 5 of the Act confers powers on the Inspectors, who have to inspect industrial establishments within his jurisdiction, make such examination of the industrial establishment, its registers, records and notices and take on the spot or elsewhere evidence of such person as he may deem necessary, for carrying out the purposes of the Act viz., conferment of permanent status.
7. Section 2 (3) defines the expression "industrial establishment". Plantation labour is defined under clause (f) of Section 2 of The Plantation Labour Act by inclusive definition it has been included as an industrial establishment under the Act. Section 6 of the Act provides for penalties and an employer, who contravenes the provisions of Section 3 shall be punishable with fine, which may extend to Rs. 5,000/= and in the case of continuing offence, which may extend to Rs. 200/= for every day after the first day during which the offence continues.
8. On a conjoint reading of Sections 3, 5 and 6 of the said Act, it is clear that on a workman, in an industrial establishment to which the Act applies, on the workman completing 480 days of continuous service within a period of 24 calendar months, he shall be made permanent or conferred with permanent status. The intendment of the Legislature being the employer of an industrial establishment shall make an employee permanent, if he has completed 480 days of continuous service within a period of 24 calendar months. If there is a failure on the part of the employer, then it is open to the Inspectors appointed under Section 4 to hold an enquiry and issue directions to carry out the purposes of the Act. The purpose of the Act, as seen from the statutory provisions is to make the employee a permanent employee in the industrial establishment on the employee completing 480 days of continuous service within a period of 24 calendar months. Section 3 of the Act mandates that on completion of 480 days of continuous service within a period of 24 calendar months, the industrial establishment has to make the employee a permanent employee of the establishment. Therefore, on completion of 480 days within a continuous period of 24 calendar months, an employee shall automatically become a permanent employee in the said industrial establishment.
9. In METAL POWDER CO. LTD. & ANOTHER VS. STATE OF TAMIL NADU reported in 1985 (2) LLJ 376, a Division Bench of this Court, while considering the challenge to The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, held thus :-
"13. Now, when we come to S.3(2) of the Act, as we have already pointed out, it is a concept which has not been found incapable of implementation at any time and has stood the test of time since 1947. Not only is the concept of "continuous service" found in the Industrial Disputes Act, 1947, but we find the same concept in the Payment of Gratuity Act, 1972. In S. 2Cl(c), "Continuous Service" has been similarly defined. It reads:
"Continuous Service" means uninterrupted service and includes service which is interrupted by sickness, accident, leave, lay-off, strike or a lock out or cessation of work not due to any fault of the employee concerned, whether such uninterrupted or interrupted service was rendered before or after the commencement of the Act."
Explanation I to the above definitions more or less similar to S. 25-B(2) of the Industrial Disputes Act. A careful reading of S. 3(2) o the Act would indicate that the emphasis is not on the number of days on which the workman has worked, but the emphasis is on the subsisting contract of employment between the employer and the workman. When the section refers to service, it refers to the contract of employment being subsisting, and the various events on account of which service can be interrupted would indicate that each one of them, except non employment and discharge, for the time being, does not result in snapping the ties between the employer and the workman........ Each one of the above events contemplate a subsisting contract of employment and a subsisting relationship of employee and employer, and when the Legislature in it's wisdom has thought fit to bestow the status of permanency on a workman who has been in continuous service, in which the period of absence on account of the reasons given sub-s(2) of S.3 is also included, then it is difficult to see how such a legislation can be open to challenge on the ground of vagueness, or on the ground of unreasonableness. As a matter of fact, the concept of continuous service is to be originally found in the Factories Act of 1934. S. 49-B of the 1934 Factories Act provided:
"Every worker who has completed a period of twelve months' continuous service in a factory shall be allowed, during the subsequent period of twelve months, holidays for a period of ten, or if a child, fourteen consecutive days, inclusive of the day or days, if any, on which he is entitled to a holiday under sub-s(1) of S. 35...
Explanation- A worker shall be deemed to have completed a period of twelve months' continuous service in a factory notwithstanding any interruption in service during those twelve months brought about by sickness, accident or authorised leave not exceeding ninety days in the aggregate for all three or by a lock out or by a strike which is not an illegal strike, or by intermittent periods of involuntary unemployment not exceeding thirty days...."
It is therefore almost over fifty years that the concept of continuous service has been incorporated in statutes."
x x x x
15. ..... Under S.3(1) of the Act also it would not be enough for the workman to enable him earn the status of permanent workman only to show that he has been in continuous service for a period of 480 days. He has also further to show that he has been in service for 24 calendar months before he claims the benefits of the Act."
10. In the light of the statutory provisions and in the light of the two Division Bench judgments, it is well settled that the permanent status by operation of Section 3 of the Act is conferred on the industrial workman completing 480 days within a continuous period of 24 calendar months and it does not depend upon the order to be passed by the Inspector appointed under Section 4 of the Act. In the present case, the proceedings of the 2nd respondent holding that the permanent status is conferred by him only from the date on which is proceedings is communicated runs counter to the statutory provisions and to that extent the proceedings impugned suffers with illegality. If the impugned proceedings is allowed to stand, it will work hardship, besides, it runs counter to Section 3 read with Section 6 of the Act as well as the legislative intendment with which the enactment has been brought for.
11. It is not necessary to remand the matter back to the 2nd respondent as already discussed in the proceedings of the 2nd respondent either during the year 1993/1994/1995/1996 each of the workman has completed 480 days and the first respondent management is directed to indicate the date on which the petitioner has completed 480 days of continuous service within a period of 24 calendar months and shall communicate the date on which the workman has completed 480 days and from that date onwards the workman shall be deemed to have been conferred with permanent status in terms of Section 3 (1) of the Act.
12. In the circumstances, the portion of the proceedings of the 2nd respondent in all these writ petitions holding that the workman is entitled for conferment of permanent status only from the date on which his proceedings are communicated is ordered to be deleted and this Court holds that each one of the workman for whose benefit the writ petition has been filed shall be deemed to have been conferred with permanent status from the date on which each employee completed 480 days of continuous service within a period of 24 calendar months.
13. In he result, the writ petitions are allowed as directed above. The parties shall bear their respective costs.