Madras High Court
The Executive Engineer vs –
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. Nos.12512/2010-4292/2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
18.02.2025 10.03.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.12512 OF 2010
W.P. NO. 4292 OF 2013
AND
W.M.P. NOS.7549 OF 2017
AND
M.P. NOS. 1 OF 2010 & 1 OF 2013
W.P. No.4292 of 2013
1. The Executive Engineer
Tamil Nadu Water Supply & Drainage Board
Maintenance Division
188, Nethaji Road
Thiruvarur.
2. The Asst. Executive Engineer
Tamil Nadu Water Supply & Drainage Board
Maintenance Sub Division
Vanduvancheri Thulasipattinam Post
Vedaranyam Taluk.
3. The Asst. Engineer
Tamil Nadu Water Supply & Drainage Board
Maintenance Sub Division
Vanduvancheri Thulasipattinam Post
Vedaranyam Taluk. .. Petitioners
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W.P. Nos.12512/2010-4292/2013
- Vs –
1. The Labour Inspector under
The Tamil Nadu Industrial
Establishments (Conferment of
Permanent Status to Workmen Act)
Thiruvarur.
2. V.Tamizhvendhan
3. P.Veeramani
4. T.Balasubramanian
5. Ramalingam
6. M.Madhavan
7. V.Subramanayabharathi
8. C.Karunanidhi
9. S.Somanathan
10. K.Selvaraj
11. S.Pothuvudamaimurthy
12. Kulanthaivelu
13. K.Rengaraj
14. P.Subramanian
15. K.Prabhu
16. A.Sivanandham
17. T.Sooriamurthy
18. K.Velayutham
19. A.Siuvanandham
20. K.Murugaiyan
21. K.anandarajan
22. S.Gunasekaran
23. S.Baskar
24. V.Subakar
25. R.Ravivarma
26. S.Nagarajan
27. M.Sambasivam
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W.P. Nos.12512/2010-4292/2013
28. N.Murugesan
29. S.Arumugam
30. P.Muthaiyan
31. M.Suresh
32. P.Mugugaiyan
33. K.Chandramohan
34. P.Karthikeyan .. Respondents
W.P. No.12512 of 2010
1. Superintendent Engineer
TWAD Board, Dharmapuri.
2. The Executive Engineer
TWAD Board
R.W.S. Division, Krishnagiri.
3. Executive Engineer
TWAD Board
R.W.S. Division, Dharmapuri. .. Petitioner
- Vs –
1. M.Ameer Khan
2. M.Raja
3. M.Mallaiyan
4. The Labour Inspector
Krishnagiri.
5. K.Raja
6. C.Kumar
7. B.Selvaraj
8. B.Ilaiyappan
9. V.Govindarasu
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W.P. Nos.12512/2010-4292/2013
10. G.Ramasamy
11. G.Sivan
12. M.Moorthi
13. L.Saravanan
14. K.Raman
15. S.Prasath
16. K.Madhesh
17. M.Suresh
18. K.Dharuman
19. T.Periannan
20. K.Palani
21. S.Govindaraj
22. V.Settu
23. R.Murugan
24. R.Yuvarasan
25. R.Devarajan
26. K.Veeramani
27. N.Saravanan
28. R.Srinivasan
29. K.Venkatesan
30. K.Krishnan
31. G.Nethaji
32. V.Kamaraj
33. G.Ramesh
34. V.Krishnamoorthy
35. C.Sivalingam
36. K.Govindaraj
37. M.Mallian
38. S.Subash Chandra Bose
39. M.Munisamy
40. C.Radhakrishnan
41. G.Kumaran
42. P.Mahendran
43. M.Kumar
44. V.Palani
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W.P. Nos.12512/2010-4292/2013
45. S.Nagaraj
46. M.Ramesh
47. R.Gokulakannan
48. G.Surendar
49. M.Ramesh
50. M.Thangam
51. K.Veeraji
52. P.Natarajan
53. M.Venkatachalam
54. P.Murugesan
55. K.Arunachalam
56. G.Mahesh
57. R.Sankar
58. S.Parivallal .. Respondents
(RR-5 to 58 impleaded vide
order of Court dated 13.3.2015
made in MP No.1/2014)
W.P. No.12512 of 2010 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari to call for the records in
No.E/859/09 to quash the order dated 10.05.2010 passed by the 4th respondent.
W.P. No.4292 of 2013 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari to call for the records relating to the
proceedings of the 1st respondent in Na. Ka. No.5619/2010 dated 11.10.2012 and
quash the same.
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W.P. Nos.12512/2010-4292/2013
For Petitioners : Mr. AR. L.Sundaresan, SC, for
M/s. S.Mekhala in WP 12512/2010
Mr. S.Ravindran, SC, for
M/s. S.Mekhala in WP 4292/2013
For Respondents : Mr. Balan Haridass for
M/s. Law Square for RR-5 to 58 in
WP 12512/2010 & RR-2 to 34 in
WP 4292/2013
Mr. K.Surendran, AGP
for R-4 in WP 12512/10 &
for R-1 in WP 4929/13
COMMON ORDER
Aggrieved by the order passed by the authority under the Conferment of Permanent Status to Workmen Act directing conferment of permanent status to the respondents, who were alleged to be employed as contract labourers, the present writ petitions have been filed by the petitioner.
2. For brevity, the petitioner would be referred to as the Board and the respondents would be referred to as workmen.
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3. It is the case of the Board that for the purpose of maintenance of the water supply and sewerage schemes, yearly budget is prepared and since the Board is not equipped with the requisite number of substantive staff members, for the purpose of maintenance, based on the Government Orders, the maintenance work is outsourced to registered contractors on the basis of least quoted tenders every year. The main work of the labourers, who are engaged through the registered contractors is to pump up the water to the overhead tanks and the water that is stored in the tanks is pumped to the villagers. It is the further case of the Board that for the purpose of carrying out the said activity, the contractors were required to engage personnel like electrician and maintenance assistant for which the Board had prescribed the requisite qualifications. Though the workmen were engaged only through contractors and payment was made only to the contractors and there was no relationship between the workmen and the Board, however, the workmen filed the present petitions before the authority for grant of permanent status to workmen claiming employment under the Board by conferring permanent status on the said workmen by contending that the workmen had put in 480 days of continuous service in two calendar years. 7 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
4. It is the specific case of the Board that the workmen were engaged by the Board and that there is no relationship between the Board and the workmen and that no monthly salary is being paid by the Board to the workmen, but is paid only to the contractors and that there is no relationship of employer-employee between the workmen and the Board and that no attendance register was maintained by the Board in respect of the aforesaid workmen and, therefore, it was contended that their claim for permanent status cannot be favourably considered.
5. The workmen, on the other hand, contended that all along they were engaged through contractors by the Board and irrespective of the change in contractor every year, the workmen continued to be employed by the Board under the changed contractor. It was further submitted by the workmen that log book for their attendance was maintained in which the workmen affixed their signature, which was countersigned by the officials of the Board and that the workmen have been in continuous employment of more than 480 days in two continuous calendar years and it was further contended that they were issued with identity cards by the Board and the case of the Board that every year the 8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 change of contractor result in change of workmen has not been established and it was further submitted that even prior to they being engaged through the contractors and issued with identity cards, the workmen were engaged by the Board and the continuous employment of the workmen is not vouched alone by the entries in the log book, but the President of the Panchayat has also given certificate to each workmen certifying them to be in continuous employment of the Board under various contractors and, therefore, as per the provisions of the Conferment of Permanent Status on Workmen Act, the workmen having put in 480 days of service in a period of two years are entitled for conferment of permanent status in the Board.
6. Before the authority, to establish their case, while the workmen marked Exs.W-1 to W-15, the Board marked Exs.R-1 to R-3. However, no witness was examined either on behalf of the workmen or by the Board. The authority, based on the oral and documentary evidence held that the workmen herein have been in employment for a continuous period of 480 days in two calendar years and, therefore, as per Section 5 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, the workmen are 9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 entitled for being accorded permanent status from the date of completion of 480 days. Aggrieved by the said order, the present petitions have been preferred by the Board.
7. Learned senior counsel appearing for the Board principally contended that there is no iota of material connecting the appointment of the workmen with the Board. It is the further submission of the learned senior counsel that admittedly no plea has been raised by the workmen that they received salary from the Board.
8. It is the further submission of the learned senior counsel that in the absence of any proof to show that salary was paid to the workmen by the Board, the inference drawn by the authority that the workmen were employed regularly under the Board for a continuous period of 480 days in 24 calendar months, based on certain records, which are not maintained by the Board, cannot be the basis for the authority to confer permanent status on the workmen. 10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
9. It is the further submission of the learned senior counsel that there is no appointment order issued by the Board or by the respondents 1 to 3 to any of the workmen as respondents 1 to 3 do not have the power to appoint any person in any post.
10. It is the further submission of the learned senior counsel that maintenance work are being carried out by the contractors, who were contracted by following the process of tender and the contracted contractors have appointed the workmen to do the jobs and fastening employer-employee relationship between the Board and the workmen is totally erroneous as the Board is in no way connected with the workmen, who are employed by the contractors.
11. It is the further submission of the learned senior counsel that the officials of the Board were entitled to inspect, verify and sign the record maintained by the contractors, with regard to the works carried out by them through the workmen cannot be treated as record in proof of employment of the workmen with the Board. The verification carried out by the officials of the Board 11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 is only for the purpose of finding out whether works are being carried out by the contractor and for approving the payment to be made to the contractors and it cannot be taken to mean that the officials are overseeing the work being done by the workmen, who are alleged to be employees of the Board. It is therefore the submission of the learned senior counsel that the signature in the record maintained by the contractor cannot be taken to mean that the said record is proof of the employment of the workmen with the Board.
12. It is the further submission of the learned senior counsel that powers of the Inspector to verify the registers and forms is provided for u/r 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Rules and Section 4 of the Act does not empower the Inspector to exercise the jurisdiction of the appropriate Government in terms of Section 10 of the Contract Labour (Regulation & Abolition) Act and that the Inspector can consider relief of permanency only in respect of temporary, casual, Badli or apprentices upon satisfying that they have completed 480 days of continuous service in 24 calendar months and in respect of contract labourers, it is not vested with the Inspector 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 and, therefore, the relief of permanency sought for by the workmen cannot be granted.
13. It is the further submission of the learned senior counsel that the Inspector has no jurisdiction to enter into the genesis of the contract labour system and the practice adopted by the Board and render a finding that the engagement of contract labour was not in terms of the Contract Labour (Regulation & Abolition) Act. If at all the workmen claim themselves to be contract labourers, they ought to have approached the authority under the Contract Labour (Regulation& Abolition) Act and ought not to have gone before the authority for conferment of permanent status.
14. It is the further submission of the learned senior counsel that conferment of permanent status ought to be established through requisite and tangible evidence and the materials, viz., the letter of the Panchayat President and the log book cannot be treated to be substantive materials, which could form the basis for conferring permanent status on the workmen. 13 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
15. It is the further submission of the learned senior counsel that there are no tangible materials in the form of attendance register or employment/appointment letter or any form of material issued by the Board to show that the services of the workmen were employed by the Board and that they were under the direct supervision and control of the Board. Such being the case, it is the submission of the learned senior counsel that reliance placed on log books and the letter of the Panchayat President cannot form the basis to treat the workmen as contract employees under the Board. It is the further submission of the learned senior counsel that merely because the workmen continued to be continued under contract with the new contractor cannot be put against the Board to claim permanency when there is no whisper from the workmen that their continuance with the subsequent contractors were at the insistence of the Board.
16. It is the further submission of the learned senior counsel that the workmen were not selected by the competent authority through a selection process in terms of Rule 9 of the TWAD Board Act and Regulations and in the 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 absence of such a procedure being adopted by the Board for recruitment, the workmen cannot be held to be contractual employees employed by the Board.
17. It is the further submission of the learned senior counsel that the workmen could claim to be contract workmen under the employee of the Board only by raising an industrial dispute u/s 10 of the Industrial Disputes Act alleging the contract system of the Board to be sham and that they are to be construed as workmen of the Board and only upon such reference made to the Labour Court/Industrial Tribunal, upon proper appreciation of evidence, adjudication could be made with regard to conferment of permanent status on the workmen, if they are held to be contract employees under a sham contract system. However, the workmen have neither raised any industrial dispute nor has there been any contract between the Board and the workmen and, therefore, the contract, which has been entered into with the contractors cannot be claimed to be sham by the workmen.
18. It is the further submission of the learned senior counsel that for the maintenance of water supply project, quotations are received periodically and 15 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 the lowest tenderer is awarded the contract of maintenance, who employs the labour and pays the salary and the Board is not in any way involved in the employment of the workmen and, therefore, the workmen cannot claim any relationship with the Board.
19. It is the further submission of the learned senior counsel that the finding of the authority that the logbook, though maintained by the contractor is the property of the Board is grossly erroneous and further the finding of the authority that the certificate issued by the panchayat leaders with regard to the employment of the workmen cannot be discarded and, therefore, held that the Board cannot disown its contract employees is perverse, as there is no material to substantiate any relationship between the Board and the workmen.
20. Further, it is the submission of the learned senior counsel that there is no material or evidence to show that the workmen have put in 480 days of continuous service in 24 calendar months and the fixation of the date for granting permanent status is not based on any proper materials. 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
21. It is the further submission of the learned senior counsel that mere non-registration by the principal employer and contractor in terms of the Contract Labour (Regulation & Abolition) Act would not suffice to establish an employer-employee relationship, but without properly appreciating the aforesaid ratio, the authority has erroneously held that non-registration is fatal and, therefore, there exists an employer-employee relationship between the Board and the workmen is grossly erroneous and perverse. Further, there is no material placed by the workmen to prove master-servant relationship and in the absence of the same, the link of employer-employee between the Board and the workmen has not been established, which fact has been totally lost sight of by the authority and, therefore, the orders passed by the authority is erroneous and vitiated and the same requires to be set aside.
22. Learned senior counsel for the Board placed reliance upon the following decisions in support of the aforesaid contentions :-
i) The Superintending Engineer, TNEB – Vs – Inspector of Labour, Erode & Ors. (W.P. Nos.4061/2020, etc. Batch – Dated 7.3.2022);17
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ii) Selvaraju & Ors. – Vs – The Superintending Engineer, TNEB (W.A. No.273 & 275/2020 – Dated 20.01.2023);
iii) The Superintending Engineer, TNEB – Vs – The Inspector of Labour, Madurai (W.A. (MD) Nos.771 to 775/2019 – Dated 21.12.2023);
iv) The Executive Engineer, TWAD Board & Ors. – Vs – K.Murugan & Ors. (CMP (MD) No.5973/2023 in WA (MD) 665/2023 – Dated 2.6.2023);
v) The Superintending Engineer, TNEB (TANGEDCO) – Vs – The Inspector of Labour, Tiruvannamalai & Ors. (W.P. No.33635/2016 – Dated 24.7.2023);
vi) The Superintending Engineer, TANGEDCO – Vs – The Inspector of Labour, Tiruvannamalai & Ors. (W.P. Nos.33553/2013, etc. Batch – Dated 10.08.2023);
vii) The Executive Engineer, TWAD Board – Vs – The Labour Inspector, Coonoor, Nilgiris & Ors. (W.P. No.8262/2009 – Dated 26.9.2011);
viii) ABI Showtech (India) Ltd. – Vs – The Joint Director of Industrial Safety & Health-I, Vellore (W.P. No.18587/2016 – Dated 18.10.2022);
ix) The Executive Engineer, TWAD Board – Vs – The Inspector of Labour, Madurai & Ors. (W.P. (MD) Nos.9265/2013, etc. Batch – Dated 23.11.2020);
x) The Executive Engineer, TWAD Board, Tiruvannamalai – Vs – T.Kandan & Ors. (W.P. No.21648/2016 – Dated 22.9.2022); 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
xi) Executive Engineer & Ors. – Vs – Thangadurai & Ors. (W.P. No.15377/2018 – Dated 17.10.2022);
xii) The Executive Engineer & Ors. – Vs – The Inspector of labour, Kanchipuram (W.P. No.18650/2016 – Dated 17.10.2022);
xiii) The Executive Engineer, TWAD Board, Sivagangai – Vs – The Inspector of labour & Anr. (W.P. (MD) No.12417/2014 – Dated 12.12.2022);
xiv) The Managing Director & Anr. – Vs – T.Mahesh & Ors. (W.P. (MD) No.10456 to 10465/2012 – Dated 15.2.2023);
xv) K.Sasi & Ors. – Vs – The Deputy Chief Inspector of Factories, Cuddalore & Ors. (W.P. No.12222/2011 – Dated – 12.04.2023);
xvi) The Executive Engineer, TWAD Board, Coimbatore – Vs – The Labour Inspector, Coimbatore & Ors. (W.P. No.16060/2010 – Dated 12.04.2023);
xvii) S.Selvam – Vs – The Presiding Officer & Anr. (W.P. No.11816/2010 –Dated 4.10.2023);
xviii) The Executive Engineer, TWAD Board & Ors. – Vs – V.K.Mariyappan & Ors. (SLP Nos.5051 to 5053/2021 – Dated 12.04.2021);
xix) The Executive Engineer, TWAD Board, Theni & Ors. – Vs – S.Marudapandi & Ors. (SLP (Civil) Dairy No.6598/2022 – Dated 9.5.2022);
xx) V.Thamilvendan & Ors. – Vs – The Executive Engineer, TWAD Board, Thiruvarur & Ors. (WP No.4723/2013 – Dated 29.11.2019);
19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 xxi) T.Balasubramanian & Ors. – Vs – The Executive Engineer, TWAD Board, Thiruvarur & Ors. (W.A. No.249/2020 – Dated 20.03.2023);
xxii) Dena Nath & Ors. – Vs – National Fertilisers Ltd. & Ors.
(1992 (1) SCC 695);
xxiii) Municipal Committee Tauru – Vs – Harpal Singh & anr.
(1998 (5) SCC 635);
xxiv) Workmen of Nilgiri Goop. Mkt. Society Ltd. – Vs – State of TN & Ors. (2004 (3) SCC 514);
xxv) Ranbir Singh – Vs – Executive Engineer (2011 (15) SCC 453); xxvi) State of Uttarakhand & Ors. – Vs – Sureshwati (2021 (3) SCC
108); and xxvii) Range Forest Officer – Vs – S.T.Hadimani (2002 (3) SCC 25)
23. Per contra, learned counsel for the workmen submitted that consequent upon the combined water supply scheme being put in place by the Board, the workmen were orally appointed by the Board from the candidates, who are qualified and sponsored by the Village President. It is the further submission of the learned counsel that the workmen are responsible for the distribution of purified water through the drinking lines and any burst in the lines, upon noticed by the Village President is attended to by the workmen and that the Village President has indirect control over the workmen through not direct 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 administrative control and only such workmen who are directly appointed by the Village Panchayat, are under the direct administrative control of the Village President.
24. It is the submission of the learned counsel that the only on the directions of the Board, the workmen have been maintaining the log books with regard to the supply of water on the respective date and timings and noting the meter reading, which particulars are vital for collection of water charges from the local bodies by the Board. The countersign of the authority of the Board in the log book maintained by the workmen is a clear indication of the direct control and supervision wielded by the Board over the workmen, which clearly shows that the workmen have been in continuous employment of the Board. Rightly appreciating the above, the authority has passed the order directing conferment of permanent status, which is based on materials and the same does not require any interference.
25. It is the further submission of the learned counsel that the letter of the Village President, which has been issued in respect of the workmen employed as 21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 Overhead Tank Operators is a clear indication of the relationship between the Board and the workmen and in the absence of any contra evidence, the contention of the Board deserves to be rejected.
26. It is the further submission of the learned counsel that as per the policy decision of the Government, the Board has been utilising the work of the workmen for the more than 500 combined water supply scheme, which is in operation throughout the State, which is of a perennial nature and since the work of the very same persons are being utilised irrespective of the change in contractors, not only is the work perennial in nature, but the workmen are in continuous employment, which clearly brings them within the provisions of the Conferment of Permanent Status Act.
27. It is the further submission of the learned counsel that the workmen have filed log books, educational qualification certificates, experience certificate issued by the TWAD Board, identity cards issued by the TWAD Board and the service certificate issued by the Village President and in the wake of the aforesaid substantive materials, it is the duty of the Board to controvert the said materials 22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 by placing proper materials to show that the workmen were not in the employ of the Board so as to claim permanency under the Act. In the absence of any such materials filed by the Board, rightly the authority has passed the order conferring the workmen with permanent status, which cannot be held to be erroneous.
28. It is the further submission of the learned counsel that the Standing Order No.3(b)(iii) of the Board clearly prescribes that it would be subject to the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, which clearly shows that the special legislation, viz., the Permanent Status Act would prevail over the TWAD Board Standing Order. Further, the Permanent Status Act is part and parcel of the Industrial Disputes Act, which has been enacted to curtail unfair labour practice and, therefore, the workmen having been in continuous employment for a period of 480 days in a continuous period of two calendar years, the workmen are entitled to conferment of permanent status.
29. It is the further submission of the learned counsel that the Board has entered into bipartite agreement with the Trade Unions in the wage settlement 23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 executed u/s 12 (3) Settlement, in and by which permanent status has been conferred on more than 1500 workmen from the date of completion of 480 days of continuous service in a period of 24 calendar months. In the present case, the workmen, who are contract labourers, are also identically placed and, therefore, they are also entitled to conferment of permanent status. It is the further submission of the learned counsel that even the Supreme Court had passed several orders conferring permanent status on workmen by invoking the Permanent Status Act and, therefore, the workmen herein are also entitled to the same.
30. It is the further submission of the learned counsel that the Board and also the alleged contractors have not maintained the registers as prescribed under the Contract Labour (Regulation & Abolition) Act and the said fact had prevailed upon the authority to conclude that the contract is a sham created for the purpose of denying the benefit of permanency to the contract labourers and, therefore, rightly passed the impugned order, which does not require any interference.
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31. It is the further submission of the learned counsel that the authority had directed the Executive Engineer to confer permanent status on the workmen upon the date of completion of 480 days continuous service in a period of 24 calendar months and the authority had not granted permanent status and, therefore, the contention of the Board that the order passed by the authority is without jurisdiction is grossly erroneous.
32. It is the further submission of the learned counsel that the workmen were employed as contract labourers in the discharge of work of water treatment and water supplies, which is strictly prohibited under G.O. Ms. No.950, Labour and Employment dated 8.8.1990 and that being the case, the contract labourers could only be deemed to be direct employees of the Board and, therefore, they would be entitled to permanent status under the Act.
33. It is the further submission of the learned counsel that the Apex Court had directed regularisation of long term and temporary employees performing essential functions in the decision in Jaggo – Vs – Union of India & Ors. (2024 INSC 1034) and Vinod Kumar & Ors. – Vs – Union of India & Ors. (2024 (1) SCR 25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 1230) and, therefore, under the garb of the workmen being alleged to be contract labourers, the Board cannot try to by-pass the benefit which has been granted to contract labourers and, therefore, the workmen herein squarely fall within the ratio laid down in the aforesaid decisions and are entitled for conferment of permanent status.
34. In fine, it is the submission of the learned counsel that the authority has properly adverted to the materials and held that the contract labourers are entitled to permanent status and had issued appropriate directions, which does not warrant any interference at the hands of this Court.
35. This Court gave its careful consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record as also the decisions relied on behalf of the respective parties.
36. Before embarking upon discussing the sustainability and legality of the order impugned herein, it is imperative to consider the ratio laid down by the Apex Court with regard to the issue of temporary/daily wage/contractual 26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 appointment in the instrumentalities of the State and the right, if any, that enures to them to claim permanence or regularisation.
37. The Apex Court had occasion to deal with the issue of regularisation of employees, who were appointed without following the due process of law and in violation of constitutional obligations in A.Umarani – Vs – Registrar of Co- operative Societies (2004 (7) SCC 112), wherein, the Apex Court, skimming through the various orders passed on the aforesaid issue, held as under :-
“41. Regularisation furthermore cannot give permanence to an employee whose services are ad-hoc in nature.
42. The question came up for consideration before this Court as far back in 1967 in State of Mysore & Anr. v. S.V. Narayanappa MANU/SC/0232/1966 : [1967]1SCR128 , wherein this Court observed :
"Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that 27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence."
43. This Court yet again in R.N. Nanjundappa v. T. Thimmaiah & Anr. MANU/SC/0680/1971 : (1972)ILLJ565SC , it was held:
"...If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
44. The said decisions of this Court have received approval of a 3-Judge Bench of this Court in B.N. Nagarajan and Ors. v. State of Karnataka and Ors. MANU/SC/0450/1979 : (1979)IILLJ209SC, it was held that the procedures for appointment as contained in the Rules framed under Article 309 of the Constitution of India must be complied with.
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45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory Rules.”
38. Yet again, similar issue fell for consideration before the Constitution Bench of the Apex Court in Secretary, State of Karnataka & Ors. - Vs – Umadevi & Ors. (2006 (4) SCC 1) had occasion to consider the impact of temporary/daily wage/contractual appointments made by the instrumentalities of the State, without following the constitutional obligation, which leads to the claim of regularisation of the said appointment at a later date and in the said context, has elucidated the manner in which constitutional guarantees are by-passed as under:-
“1. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure 29 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
2. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
3. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete 30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established.
The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts 31 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
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14. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa MANU/SC/0232/1966 : [1967]1SCR128 , this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah and Anr. MANU/SC/0680/1971 : (1972)ILLJ565SC , this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:-
Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-32
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. In B.N. Nagarajan and Ors. v. State of Karnataka and Ors. MANU/SC/0450/1979 : (1979)IILLJ209SC , this Court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be 33 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
15. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed.
This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
16. Without keeping the above distinction in mind and without discussion of the law on the question or the effect of the directions on the constitutional scheme of appointment, this Court in Daily Rated Casual Labour v. Union of India and Ors. MANU/SC/0434/1987 : (1988)ILLJ370SC directed the Government to frame a scheme for absorption of daily rated casual labourers continuously working in the Posts and Telegraphs Department for more than one year. This Court seems to have been swayed by the idea that India is a socialist republic and that implied the existence of certain important obligations which the State had to discharge. While it might be one thing to say that the daily rated workers, doing the identical work, had to be paid the wages that were 34 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 being paid to those who are regularly appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its Executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the Constitution and the laws made thereunder concerning public employment. The same approach was made in Bhagwati Prasad v. Delhi State Mineral Development Corporation MANU/SC/0064/1989 : (1990)ILLJ320SC where this Court directed regularization of daily rated workers in phases and in accordance with seniority.
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20. We may now consider, State of Haryana v. Piara Singh and Ors. MANU/SC/0417/1992 : (1993)IILLJ937SC .
There, the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. This Court started by saying:
Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any governing the conditions of service. This Court then referred to some of the earlier decisions of this Court while stating:
The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above.
This Court then concluded in paragraphs 45 to 50:
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be 36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.37
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
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25. In Ashwani Kumar and Ors. v. State of Bihar and Ors.
MANU/SC/0379/1997 : 1996 Supp. (10) SCR 120, this Court was considering the validity of confirmation of the irregularly employed. It was stated:
So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.
This Court further stated:
In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and 39 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment.40
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 The Court noticed that in that case all constitutional requirements were thrown to the wind while making the appointments. It was stated, On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India, both at the initial stage as well as at the stage of confirmation of these illegal entrants.
The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme.
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27. In A. Umarani v. Registrar, Cooperative Societies and Ors.
MANU/SC/0571/2004 : (2004)IIILLJ780SC , a three judge bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give 41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.” (Emphasis Supplied)
39. The issue, that had fallen for consideration before the Apex Court in the aforesaid two decisions related to regularisation of an employee, who has not been appointed in accordance with the rules and regulations relating to appointment. In the present case, what is sought for is permanence by the workmen citing that they were employed continuously for 480 days in a period of 24 calendar months and invoking the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status on Workmen) Act, permanence is sought for.
40. In Umarani case (supra), the Apex court, relying upon the decision in Narayanappa case held that “Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption 42 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence."
41. From the above view expressed by the Apex Court in Umarani case, it is evident that permanence in a post would lead to confirmation, whereas it would not be so in case of regularisation simpliciter. In the present case, the workmen have sought for permanence on the ground that they have put in continuous service of 480 days in 24 calendar months.
42. Permanence in a post can be granted only when the posts are substantive posts and not otherwise. First of all, there should be a a substantive post in which a person would have to be fit in so as to claim right to continue in the said post. The present case is one of a claim for permanent status. 43 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
43. In Umarani case(supra), the Constitution Bench, affirming the view expressed in Aswani Kumar case had held that “In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily- wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry.” 44 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
44. From the above, there are three ingredients that need to be fulfilled so as to claim even regularisation, viz.,
i) That the appointment should be made an authority who is competent to make such appointments;
ii) That the said appointments should be made against a substantive posts/sanctioned vacancy; and
iii) That the incumbents should have continued in the very same service with or without artificial breaks.
45. Therefore, the first fulfilment ought to be that the appointment should be made by an authority, who is competent to make such appointments and secondly that the vacancy against which such appointment is made is a sanctioned vacancy and that the incumbents so appointed have continued in the same service with or without artificial breaks. However, as already aforesaid, the aforesaid conditions are requisite conditions for regularisation.
46. However, as held in Ashwani Kumar case, permanence is further more than mere regularisation. Permanence could be made only against a sanctioned 45 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 post and not otherwise, as the person, who is fitted in the said post, is entitled for confirmation after the mandatory period of probation.
47. In the aforesaid backdrop, the question of the workmen ought to be considered based on their claim for permanence under the Conferment of Permanent Status Act.
48. It is not disputed by the parties that the workmen are all contract workmen, who were employed by contractors. However, the whole claim of the workmen is based on their continuance in appointment and their claim that though they were under the employ of the contractors, however, indirectly, the Board was their employer and, therefore, they are entitlement to conferment of permanent status in terms of the provisions of the Act. However, it is the claim of the Board that there exists no employer-employee relationship between the Board and the workmen and that the dealings of the Board is only with the contractors and, therefore, the applicability of Conferment of Permanent Status Act would not enure to the workmen.
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49. The workmen were engaged by the contractors for doing contractual jobs. This fact is not in dispute as aforesaid, however, what is sought to be contended is that the tenure of the workmen stood continued irrespective of the change of the contractor every year, which clearly connotes that the workmen were in continuous employment with the Board for a continuous period of 480 days in 24 calendar months and, therefore, entitled for permanence.
50. To appreciate the aforesaid contention, reference could be had to the definition of ‘workman’ provided u/s 2 (4) of the Conferment of Permanent Status to Workmen Act, which reads as under :-
“(4) “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 (ahd includes a badly workman), ....................”
51. From the above definition, it is evident that the person, who claims conferment of permanent status u/s 3 of the Act should be a workman employed 47 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 in any industrial establishment. Therefore, of necessity, there needs to be substantive proof, which is to be established by the workmen to claim permanent status u/s 3 of the Conferment of Permanent Status Act.
52. In this regard, the workmen have placed reliance on the log books and the letter issued by the Village President for the purpose of claiming that they were employed by the Board and have been in continuous employment for a period of 480 days in 24 calendar months as provided u/s 3 of the Act.
53. It is clear from the aforesaid averment that there is no material placed to directly link the employ of the workmen with the Board, except for the log books, which bears the countersign of the Assistant Engineer of the Board.
54. There could be no quarrel that the Village President is clothed with power to employ workman with the approval of the appropriate authority for doing the works relating to the panchayat. However, in the case on hand, the Village President had not appointed the workmen to the post and sought the approval of the Collector; rather, it is even evident from the letters issued by the 48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 Village President that the workmen were engaged under the contractors for carrying out works. So the workmen are contractual labourers stand established from the aforesaid material.
55. When the workmen, even by their very own material, are contractual labourers, who are engaged under the contractor, there should be explicit material to show that they were indirectly employed by the Board so as to claim the benefit under the Conferment of Permanent Status Act.
56. To establish the relationship of the workmen with the Board as regards employer-employee relationship, as aforesaid, the letter of the Village President and log books have been pressed into service. Even at the very outset, it could safely be held that the letter of the Village President cannot be held to be a substantive material to infer that there was employer-employee relationship between the Board and the workmen. At best, the said letter could only be taken to establish that the workmen were contract labourers, who were doing some works through the contractor for the Board.
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57. Therefore, what is left for consideration is the log book, which has been countersigned by the authority of the Board, which is claimed to be a material, which will establish not only the continued employment of the workmen by the Board, but the relationship of employer and employee between the Board and the workmen.
58. This Court in the case of The Executive Engineer – Vs – The Labour Inspector, Coonoor & Ors. (W.P. No.8262/2009 – Dated 26.9.2011), it has been held that the log book cannot be a material to hold that there was any relationship of employer-employee between the Board and the workmen and further held that contractors were not having licence under the Contract Labour Abolition Act requires detailed consideration and in the said circumstances, it was held as under :-
“10. Further, the production of log book, as explained by the petitioner/Executive Engineer, is in relation to the operations carried on by the Board and do not reflect the service particulars of the employees, namely as to whether they were directly employed or through contractors. No doubt, in the present case, the petitioner has not discharged their obligation in satisfying the authority that the contesting respondents were employees of the 50 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 contractors. But yet only on the basis of the assertion made by the contesting respondents, the authority cannot direct grant of conferment of permanent status without satisfying himself whether they are employees of the Board or of the contractors. As rightly contended by the petitioner/Board, the log book only shows the presence of the contesting respondents in the work spot at the relevant time. In essence, the contesting respondents pleaded that there was a supervision by the Assistant Engineer employed by the Board and therefore, they are the employees of the Board. Even in cases where they are employees engaged through contractors, there will be certain amount of supervision that will be required by the officers of the principal employer and that by itself will not establish the relationship of master and servant between such employer and the workers and there must be material to show that they were originally employed by the Board and continued to be employed under the service of the Board.
11. The Supreme Court in Workmen of Nilgiri Coop. Mkt.
Society Ltd. v. State of T.N., (2004) 3 SCC 514 has held that merely because there was some supervision over the work of the workers, it will not automatically be a conclusive factor for establishing the nature of relationship between the employer and employee.
12. Even the contesting respondents in their counter affidavit have stated that the contract was sham and nominal and the contractors were not having any licence under the Contract Labour (Regulation and Abolition) Act. Such disputes are very 51 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 complex in character and the authority must pass a speaking order with reference to establishment of the following factors : (i) that the contesting respondents were employed by the petitioner/Board and the wages are paid by the Board; and (ii) they were direct employees of the petitioner/Board. In the absence of such finding, the application of the Tamil Nadu Act 46 of 1981 in relation to the petitioners, who is a principal employer will not arise. Since the authority mainly went by the production of the log book and the statement given by the workers and did not consider the objections raised by the management, this Court is obliged to interference with the impugned order.”
59. The two ingredients, which have been pointed out in the aforesaid decision is to be fulfilled to come to a conclusion with regard to the relationship between the workmen and the Board. However, there is no material to show that the workmen were paid salary by the Board and that they are employees of the Board. It is the admitted case of the workmen that salary was paid by the contractors, though it is alleged that it was paid by the Board as the contract itself was sham and nominal. Further, the decision of the Supreme Court, extracted in the said decision also clearly lays down the proposition that some supervision of 52 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 the workers would not be a conclusive factor to establish the nature of relationship.
60. In the light of the aforesaid finding, if the materials available on record is looked at, which have been placed before the authority by the workmen, the log book, which has been countersigned by the official of the Board has been placed to establish employer-employee relationship. As held in the aforesaid decision, log book only shows the presence of the workmen in the work spot at the relevant time and when their is engagement through contractors, the mere supervision by means of a countersignature in the log book will not amount of supervision so as to establish an employer-employee relationship between the Board and the workmen and there must be material to show that they were originally employed by the Board and continued to be employed under the service of the Board.
61. In the case on hand, even the letter of the Village President clearly speaks that the workmen were employed on contract basis through the contractors and they were not employed by the Board. The aforesaid letter, 53 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 coupled with the log book, could only establish a presumption of the presence of the workmen at the spot at the particular time, as entered in the log book, which was approved by the Assistant Engineer of the Board and it cannot be taken to mean that the said workmen were under the employment of the Board.
62. It is borne out by records, as also it is the undisputed case of the workmen that they are contract labourers, who were in continuous employment of the Board through the various contractors and though there was change in contractors, there was no change in the workmen and, therefore, they would be entitled to grant of permanent status, being contract labourers. It was further contended on behalf of the workmen that neither the contractors nor the Board had registered itself under the Contract Labour (Regulation & Abolition) Act and, therefore, the said contract cannot be held to be valid and, therefore, the continuance of the workmen in the service of the Board should be taken to mean that they were under the direct employment of the Board. 54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
63. In this regard, useful reference can be had to the decision in L. Justine & Ors. – Vs - The Registrar of Coop. Societies & Ors. (MANU/TN/2100/2002), wherein, with regard to contract labourers, it was held as under :-
“16. Coming to the application of Permanency Act of 1981 or the Industrial Disputes Act, 1947, de hors G.O. Ms. No. 86, the said enactments are not applicable to the appointments made in an illegal manner. There is a lot of difference between irregularity and illegality. The appointments here are not irregular but illegal. Irregular is something which is done in an authorised manner but while doing so, there is some procedural irregularity. Illegality is altogether different. An action is illegal if it is contrary to law. The law in the instant case is so clear that the appointments cannot be beyond the permissible cadre strength. The rule mandates the fixation of the cadre strength. In fact, amendment of Rule 149 by G.O. Ms. No. 212 was only made with that object obligating the societies to fix the cadre strength per force. Government has felt that the general criteria for fixation of the educational qualifications or the executive instructions fixing the cadre strength with expenditure not exceeding 2 to 3% of the working capital, need to be emphasised in a more clear and effective manner. For that reason, the Government brought forth amendment to Rule 149, particularly Sub-rule (1) thereof, by which, every society shall, taking into account its nature of business, volume of transaction and financial position, adopt, with 55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 the approval of the Registrar of Cooperative Societies, a special bye-law covering the service conditions of its employees and also enumerated the same, which are as stated below:
"(i) Cadre strength and classification of various categories of posts and the qualifications required thereof for each such posts.
(ii) The method of recruitment for each such posts.
(iii) The scale of pay and allowances for each such posts.
(iv) Conditions of probation for each such posts.
(v) Duties and responsibilities for each such posts.
(vi) Leave of various kinds admissible and, the conditions thereto for each such posts.
(vii) The penalties that may be imposed upon, the procedure for taking disciplinary action and inflicting various kinds of punishments on an employee holding each such post and the authority competent to entertain and dispose of appeal made against an order of punishment imposed by the competent authority on a disciplinary proceedings.
(viii) Conditions relating to acquisition and disposal of movable and immovable property :
Provided that a minimum period of three years of satisfactory service shall be prescribed for eligibility for promotion from one category to the immediate next higher category of post:
Provided further that the Co-operative Training at the appropriate level may be prescribed as a necessary qualification for specific categories of non-technical posts."56
https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 Most of the societies have not followed the mandate of this Rule. The arguments of the learned counsel for the appellants/petitioners are to the effect that the fault lies with the cooperative societies, which did not adopt the special bye-laws and for that reason, they should not be punished. We are unable to accept this contention for the reason that the illegal appointees cannot have more rights than the cooperative societies themselves. The cooperative societies were totally prevented from making any appointments until the compliance of the mandate of the above Rule adopting a bye-law containing the particulars specified. Even thereafter, the appointments were to be only strictly as per the approved special bye-laws and not otherwise. Compassion cannot displace the essential legal requirements and as already stated above, essential legal requirements are the cadre strength and the qualifications and these cannot be bye- passed and any infraction in observance of the said essential requirement, makes the action of the Appointing Authority illegal. Neither the Permanency Act of 1981 nor the Industrial Disputes Act, 1947, imply that regardless of the illegal nature of appointments even at the entry stage, statutory protection is afforded under the above Acts after the completion of the man- days, be it 480 or 240 prescribed under the above statutes. The above two enactments have to be read and understood in the context that if only the appointments are authorised and the employees continued even in temporary positions beyond the respective man days prescribed, the workmen get right to 57 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 continue further on the legal presumption that the temporary posts are allowed to be treated as permanent. But if the appointment itself is illegal, then the Permanency Act of 1981 or the Industrial Disputes Act, 1947 cannot be invoked at all.” (Emphasis Supplied)
64. True it is that Conferment of Permanent Status Act is also a legislation which is intended to safeguard the interests of the labour from being misutilised under the garb of contractual/temporary/daily wage labour to defeat their legitimate rights, as more often in respect of employment in government departments, public undertakings or agencies it is the people who bear the heavy burden of the surplus labour. Further, persons taking up of persons in urgent and temporary is being discontinued for persons, who have put in 240 or more days have to be absorbed as regular employees, which jeopardizes the interest of the public.
65. While it is the duty of the courts to safeguard the legitimate rights of the labourers from being wrongly utilised under the garb of contract labour, equally, where the statutes and the Acts provide for modes of recruitment, 58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 subverting the same and employing persons under contract and enabling them to avail the benefits under the Conferment of Permanent Status Act and the Contract Labour (Regulation & Abolition) Act. However, the authorities under the Act are to act in accordance with the provisions of law when deciding on the issue relating to passing orders and it should be based on cogent and convincing evidence and the authorities are not to be carried away by the vagaries of the situation.
66. Further, merely because the Board as well as the contractors have not registered in terms of the Contract Labour (Regulation & Abolition) Act, it cannot be implied that there exists a relation of employer-employee between the Board and the workmen. The Supreme Court in Dena Nath & Ors. – Vs – National Fertilisers Ltd. & anr. (1992 (1) SCC 695) with regard to Section 10 of the Contract Labour (Regulation and Abolition) Act, held as under :-
“12. From the above provisions it is clear that the Act serves two-fold purposes (1) regulation of the conditions of service of the workers employed by the contractor who is engaged by a principal employer and; (2) also provides for the appropriate Government abolishing contract labour altogether, in certain notified processes, operation or other works in any establishment. Neither 59 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of contract labour, the said labour would be directly absorbed by the principal employer.
* * * * * * *
22. It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act. The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act. We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. We would not like to express any view on the decision of the Karnataka High Court or of the Gujarat High Court (supra) since these decisions are under challenge in this Court, but we would place on record that we do not agree with the aforequoted observations of the Madras High Court about the effect of non-registration of the principal employer or the non-licensing of the labour contractor nor with 60 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 the view of Bombay High Court in the aforesaid case. We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same.”
67. From the above, it unambiguously transpires that even if the Board is deemed to be the principal employer, though not the case here, as discussed above, and the workmen were employed by the contractor, who is engaged by the principal employer, if the contract labour is abolished altogether in certain notified process, operation or other works in any establishment u/s 10 of the Contract Labour (Regulation & Abolition) Act, but in the absence of any specific notification, the workmen employed under contract labour are not entitled to claim absorption.
68. Further, one other important aspect, which is also to be noticed here is that though the vacancies in which the workmen seeks permanency are alleged to be substantive vacancies, however, it should not be lost sight of that the for recruitment to the various posts in the Board, the Board has clear codified Regulations in which the process of recruitment has been spelt out. The substantive vacancies are to be filled up through proper procedure as provided in 61 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 the Regulations. However, the workmen herein have not undergone any recruitment process, but have been inducted by the contractors to do jobs on contract basis. When the workmen have not been recruited through the recruitment process as provided in the Regulations, the services of the workmen could only be deemed to be temporary/contractual/daily wage based service and, therefore, their entry is clearly through back door and, therefore, they cannot claim permanency by claiming that they have put in 480 days of continuous service in 24 calendar months.
69. Further, the materials on record herein unequivocally reveal that the Board had entered into contract with the contractors and had availed their services and the contractors, in their turn, had taken the labour of the workmen for performing certain acts as had been contracted to them. May be, the very same person was employed by the various contractors over a period of time, but that cannot be put against the Board to claim conferment of permanent status, without establishing that the Board had a specific clause in the contract in and by which it was mandated that the very same workmen should be employed, inspite of change of contractors. However, it is to be pointed out that it is not the 62 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 averment of the workmen, either before the authority or even before this Court that there was any such mandate on behalf of the Board. When the Board had not made any specific mandate to the contractors, the Board cannot be fastened with liability by concluding that the workmen were under the employment of the Board through the means of a sham and nominal contract. There is no iota of evidence to advance any such plea and rightly so, such a plea has not been advanced.
70. As held in Justine case (supra), the services of the workmen were taken through the contractors and their appointments were not as per the Regulations of the Board. Further, neither the Conferment of Permanent Status Act nor the Industrial Disputes Act imply that regardless of the illegal nature of appointments even at the entry stage, statutory protection is afforded under the above Acts after the completion of 480 days or 240 days as the case may be prescribed under the statutes. If only the appointments are authorised and the employees continued even in temporary positions beyond the respective man days prescribed, the workmen get right to continue further on the legal presumption that the temporary posts are allowed to be treated as permanent. But if the 63 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 appointment itself is illegal, then the provisions of the Conferment of Permanent Status Act or the Industrial Disputes Act cannot be invoked at all.
71. As admitted by the workmen, if the workmen are contract labourers, who have been inducted to discharge work under the contractor in respect of the contract with the Board, any grievance, which the workmen wants to espouse against the contractor or the Board, the workmen ought to have moved before the authority constituted under the Contract Labour (Regulation & Abolition) Act. However, inspite of the fact that the workmen are contract labourers, the workmen have not preferred to go before the said authority, but, rather, they had gone before the authority for conferment of permanent status. As held in Justine case (supra), the Industrial Disputes Act and the Conferment of Permanent Status Act have to read and understood in the context that if only the appointments are authorised and the employees continued even in temporary positions beyond the respective man days prescribed, the workmen get right to continue further on the legal presumption that the temporary posts are allowed to be treated as permanent. There is no appointment in the eye of law and the workmen cannot be deemed to have been appointed by the Board, the 64 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 appointment, either be temporary, casual, daily wages, etc., but the engagement was through contractors through a valid contract and such being the case, the workmen cannot claim any right to permanency and, there being no appointment, the Conferment of Permanent Status Act or the Industrial Disputes Act, 1947 cannot be invoked at all and rather, the workmen ought to have approached the authority under the Contract Labour (Regulation & Abolition) Act.
72. In the present case, it is not the case of the workmen that there is any such notification u/s 10 of the Contract Labour (Regulation & Abolition) Act, insofar as the processes/works of the workmen are concerned. Further, there is a clear prescription under the Regulations of the Board with regard to the manner in which recruitment has to be carried out. There being no substantive vacancies, which posts are sought to be filled up, there is no embargo for the Board to enter into contract with contractors for carrying out certain specified tasks, which the contractors have carried out through the contract labour like the workmen herein. Sensing the difficulty for the workmen in canvassing their claim through the Contract Labour (Regulation & Abolition) Act, the workmen have 65 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013 taken the route of claiming permanency by resorting to the provisions of the Conferment of Permanent Status Act. The claim, though made by the workmen, is an ingenious one, however, for the reasons aforesaid, the same cannot be acceded to, as there is a well defined mechanism under the Contract Labour (Regulation & Abolition) Act, which alone has to be invoked by the workmen to have their grievance redressed. In the absence of any specific notification abolishing contract labour in respect of the processes undertaken by the workmen and such being the case the workmen would not be entitled to absorption.
73. The provisions of law both under the Conferment of Permanent Status Act and the Contract Labour (Regulation & Abolition) Act, have been lost sight of by the authority and carried away by the plight of the workmen had passed the impugned orders directing the petitioner herein to confer permanent status on the workmen, which is against the provisions of law, grossly perverse, arbitrary and unreasonable, the same deserves interference at the hands of this Court. 66 https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/03/2025 05:55:43 pm ) ____________ W.P. Nos.12512/2010-4292/2013
74. For the reasons aforesaid, the impugned orders are liable to be set aside and, accordingly, the same are set aside and the writ petitions stand allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
10.03.2025
Index : Yes / No
GLN
67
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W.P. Nos.12512/2010-4292/2013
To
1. The Executive Engineer
Tamil Nadu Water Supply & Drainage Board
Maintenance Division
188, Nethaji Road
Thiruvarur.
2. The Asst. Executive Engineer
Tamil Nadu Water Supply & Drainage Board
Maintenance Sub Division
Vanduvancheri Thulasipattinam Post
Vedaranyam Taluk.
3. The Asst. Engineer
Tamil Nadu Water Supply & Drainage Board
Maintenance Sub Division
Vanduvancheri Thulasipattinam Post
Vedaranyam Taluk.
4. The Labour Inspector under
The Tamil Nadu Industrial
Establishments (Conferment of
Permanent Status to Workmen Act)
Thiruvarur.
68
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W.P. Nos.12512/2010-4292/2013
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO.12512 OF 2010
AND
W.P. NO. 4292 OF 2013
Pronounced on
69
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