Madras High Court
The Management Of Mrk Co-Operative vs Deputy Commissioner/Chief Inspector ... on 3 November, 2015
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 11.03.2015 DATE OF DECISION : 03.11.2015 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.7152 of 2005 The Management of MRK Co-operative Sugar Mills rep.by its Administrator Sethiathoppu Chidambaram District .. Petitioner -vs- 01. Deputy Commissioner/Chief Inspector of Factories Authority of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 Vellore 02. K.Kolanjiappan 03. G.Indrajith 04. J.Murugan 05. T.Senthamilselvam 06. S.Sekar 07. K.Sagayaraj 08. A.Selvaraj 09. Bharathirajan 10. M.Ramalingam 11. P.Kannan 12. T.Shanthar 13. P.Senthamaraikannan 14. A.Palani 15. G.Murugan 16. M.Punarpoosam 17. G.Gunasekaran 18. C.Ramadiss 19. M.Irudhayaraj 20. Vincent 21. S.Sethurangan 22. R.Selladurai 23. A.Meyakrishnan 24. R.Rajadurai 25. A.Saravanan 26. S.Magimaidoss 27. S.Sahadevan 28. A.Gopal Bahadur 29. Suryaman Giri 30. H.Vasantha Acharya 31. K.Gajendra Sagai 32. Ponbahadur 33. Hem Bahadur 34. G.Hom Bahadur 35. M.Venkatesan .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the first respondents impugned order dated 03.11.2004 is concerned made in file No.E.8693/99 and quash the same. For Petitioner :: Mrs.G.Thilakavathi For Respondents :: Mrs.Nalini Chidambaram Senior Counsel for Ms.C.Uma for RR3, 5 to 10, 13 to 18, 20, 21, 23, 25, 28, 29, 33 to 35 Mr.R.Govindasamy Additional Government Pleader for R1 No appearance for RR2, 4, 11, 12, 19, 22, 24 and 26 Petition dismissed as against RR27, 30 to 32 vide order dated 4.2.14 ORDER
The Management of MRK Co-operative Sugar Mills represented by its Administrator, Sethiathoppu, Chidambaram District, challenging the impugned order passed by the Deputy Commissioner/Chief Inspector of Factories, an authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, holding that the 34 claimants (respondents) are entitled to the benefit of permanency in terms of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, has filed the present writ petition.
2. Mrs.G.Thilakavathi, learned counsel appearing for the petitioner-Sugar Mills contended that when the petitioner-Sugar Mills is a seasonal establishment and the respondents-claimants having been engaged only during the crushing season which is between five and six months in a year, the question of applicability of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 does not arise, hence, the claim made by the respondents is not maintainable in terms of Section 1(3) of the said Act, which clearly states that the provisions do not apply to an establishment of seasonal character or in which work is performed intermittently, while so, the first respondent authority, wrongly entertaining the false claim made by the respondents herein for regularization in service alleging that they had put in continuous service as per Section 25-B of the Industrial Disputes Act, 1947, when none of them had put in continuous service as per the law, without even satisfying itself on facts and merits with reference to the manner in which the claimants had continuously attended for 240 days in a calendar year, the first respondent authority has wrongly entertained the claim and passed the impugned order, totally overlooking the bar under Section 1(3) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, holding that they had put in continuous service of 480 days in 24 calendar months contrary to the records and in violation of the provisions of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981.
3. Mrs.G.Thilakavathi, learned counsel, continuing her arguments, further submitted that it is a well settled legal position that the person who approaches the Court while claiming the relief of regularization has to establish his initial burden with regard to the factum of having continuously worked for 240 days in 12 calendar months. However, merely accepting the statement of the claimants and without verifying the records for the immediate preceding two years after the records were produced, the first respondent erroneously proceeded to accept the materials produced by the claimants, which were not even maintained by the petitioner Mills, but prepared by the claimants themselves, without verifying their authenticity with the petitioner herein and wrongly shifting the burden on the petitioner to prove that the claimants have not worked for 240 days in 12 calendar months, and thereupon committed a serious error that the failure to produce the muster roll, attendance register and salary disbursement register was willful and thus wrongly chose to proceed to confer the benefit of such non-production of records to that of the claimants for regularization. Adding further the learned counsel submitted that the first respondent has miserably failed to bear in mind that the initial burden of establishing the factum of continuous work for 240 days in 12 calendar months undoubtedly rests with the claimants. When the above burden has not been discharged by the claimants, the benefit of regularization ought not to have been granted, more particularly, when the claim itself stood excluded under Section 1(3) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. On this basis, she prayed for interference with the impugned order.
4. Mrs.Nalini Chidambaram, learned senior counsel appearing for the respondents/claimants, strongly opposing the contentions made by the petitioner, submitted that when there is a finding of fact reached by the first respondent authority under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act with regard to the actual working of the respondents/claimants for a period of 480 days in 24 calendar months, such a finding reached for the purpose of giving a limited direction to regularize the services of the claimants should not be disturbed by this Court under Article 226 of the Constitution of India. The learned senior counsel, in support of the impugned order, submitted that when the respondents/claimants were denied regularization after serving continuously for substantial number of years, they approached the first respondent seeking for regularization. During the course of proceedings before the authority, a specific request was made on behalf of the claimants asking the management of the petitioner Mills to produce the attendance register, wage slips to prove their claim. Since the request of the claimants for the documents was not favourably considered by the petitioner by taking a flimsy ground that the documents were destroyed during flood, an adverse inference was drawn by the authority in favour of the respondents/claimants for regularization. This apart, the only contention made by the petitioner that since the claimants were seasonally engaged, the petitioner Mill is automatically excluded from the purview of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, also has not been properly established before the first respondent, inasmuch as when the claim of exclusion or exemption from the purview of the Act is pleaded, the management has to get a specific direction from the Government declaring that the petitioner is a seasonal industry. In this case, without getting such a declaration, the petitioner Mill cannot contend that the Mill is excluded from the purview of the Act on the ground that it is a seasonal industry. Therefore, the learned senior counsel submitted that the argument of the learned counsel for the petitioner for exclusion under Section 1(3) of the Act is liable to be rejected as such.
5. This Court finds no merits or justification in the contentions made by the learned senior counsel for the respondents/claimants. It is not in dispute that the petitioner Mills have been engaging the respondents/claimants admittedly during the crushing season spread over five or six months in a calendar year purely on daily wage basis depending upon the exigencies of work. Therefore, at no stretch of imagination it can be inferred that the respondents/claimants had been continuously working for 480 days in 24 calendar months to confer the benefit of regularization. In this regard, it is expedient to refer to Section 1(3) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, which reads as follows:-
It applies to every Industrial Establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than 50 workmen were employed on any day of the preceding twelve months. If any question arises whether an Industrial establishment is of a seasonal character or whether work is performed therein only intermittently the decision of the Government thereon shall be final:
Provided that the Government may, by notification, apply the provisions of this Act to any industrial establishment employing such number of workmen less than fifty as may be specified in the notification.
6. A mere perusal of the said provision would show that the Act will apply to every Industrial establishment, but not to an establishment of seasonal character or in which work is performed only intermittently. According to the petitioner, the sugar Mills is a seasonal establishment and that the respondents/claimants were engaged by the Mills only during the crushing season which is approximately for a period lasting between five and six months only in a year, as piece rate casuals. It is also the consistent stand of the petitioner throughout the proceedings that the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 are not applicable to the petitioner, since it is a seasonal establishment and that the claim petitions filed by the respondents are not maintainable. On the contrary, the respondents/claimants laid the claim under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 alleging that they had put in 480 days of continuous service in 24 calendar months in the petitioner Mills and that they are entitled for regularization without there being any supportive materials, both oral and documentary. In this context, while considering a similar issue, the Honble Division Bench of this Court in the decision in Tamil Nadu Civil Supplies Corporation Workers Union v. Tamil Nadu Civil Supplies Corporation Ltd., and others, 1998-I-LLJ-728, has held as follows:-
15. It was argued by Mr.Periasamy and Mr.Perumbulavil Radhakrishnan, learned counsel that the employees who have completed 480 days of service should be considered for regularization. We are unable to accept the said argument. Mere continuance and completion of 480 days of service on the basis of the interim stay granted by this Court are not eligible for regularization on the ground that the seasonal employees cannot continue in service on their own right under the appointment order. Further more, the seasonal employees have no right to claim for permanent post till they are duly selected and appointed and their appointment was not made in accordance with the rules. As rightly pointed out by the learned senior counsel, there must exist a post to appoint the employees to the post. The seasonal employees cannot make a claim for regularization against non-existent vacancies and the regularization of such employees amounts to a nullity and dehors the budgetary sanction. As already noticed, the petitioners have prayed for a blanket relief prayer without giving any particulars regarding the employees who have completed 480 days of service and without filing the appointment order with regard to the above post. Now that the services of the seasonal employees had been terminated on May 7, 1987 itself, it is for the employees to work out their remedies in a manner known to law.
16. It was argued on behalf of the appellants/petitioners that Section 25-F of the Industrial Disputes Act has to be complied with and non-compliance thereof would render the termination illegal.
17. In answer to the above submission, Mr.A.L.Somayaji, learned counsel invited our attention to the decision in Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd., & Anr.1997 (5) Supreme Court pg.646 where the employee was engaged in the seasonal work in the Chemistry Section of the sugar factory. Since the work was over, the services of the appellant and others were terminated. The employees sought a reference under the Industrial Disputes Act, 1947 contending that the termination being in the nature of retrenchment is in violation of Section 25-F of the above mentioned Act. The Industrial Tribunal and the High Court negative the contention. It was argued before the Supreme Court that since the employee has worked for more than 180 days, he should be treated as retrenched employee and if the procedure contemplated under Section 25-F of the I.D.Act is applied to, his retrenchment is illegal. The Supreme Court rejected the said contention and observed as follows:
We find no force in this contention in Morinda Co-op.Sugar Mills Ltd. V. Ram Kishan & others (1996-I-LLJ-870) in paragraph-3, this Court has dealt with engagement of the seasonal workman in sugar cane crushing; in paragraph-4, it is stated that it was not a case of retrenchment of the workman, but of closure of the factory after crushing season was over. Accordingly, in paragraph-5, it was held that it is not retrenchment within the meaning of Section 2(oo) of the Act. As a consequence, the appellant is not entitled to retrenchment as per clause (bb) of Section 2(oo) of the Act. Since the present work is seasonal business, the principles of the Act have no application. However, this Court has directed that the respondent-Management should maintain a register and engage the workmen when the season starts in the succeeding years in the order of seniority. Until all the employees whose names appear in the list are engaged in addition to the employees who are already working, the management should not go in for fresh engagement of new workmen. It would be incumbent upon the respondent management to adopt such procedure as is enumerated above.
4. The appeal is accordingly dismissed. No costs.
18. The Industrial Disputes Act in our view has no application for seasonal appointments. Likewise, the Conferment of Permanent Status Act also would not apply in which event the employees do not have a legal right.
7. The above observations of the Honble Division Bench clearly demonstrate that neither the provisions of the Industrial Disputes Act nor the Conferment of Permanent Status Act would apply for seasonal appointments, more particularly, in the sugar industries. Therefore the claims made by the respondents/claimants before the first respondent are not maintainable in the light of the specific bar under Section 1(3) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. The said judgment of the Division Bench was also affirmed by the Hon'ble Supreme Court in the decision in Workers Union v. Tamil Nadu Civil Supplies Corporation Ltd., (2001) 4 SCC 469.
8. The next argument of the learned senior counsel for the respondents is that when there is no specific notification issued by the Government applying the provisions of the Act to the petitioner Mills as a seasonal establishment, the claims made by the respondents are perfectly maintainable. The said contention is also far from acceptance, for the simple reason that the Government in their letter dated 20.7.98 has issued a general direction to the effect that the sugar industry can never be declared as permanent industry since the crushing operation is not being carried out throughout the year. Moreover, no evidence was let in by the respondents before the authority to prove that the petitioner Mills is not a seasonal establishment to claim the benefit of regularization, therefore, the claims made by the respondents for regularization are not maintainable, as they were engaged as piece rate casuals seasonally and not in accordance with the rules.
9. A bare reading of the cryptic impugned order also shows that the first respondent has merely proceeded to allow the claims of the respondents for regularization on the basis of the wage register produced by the respondents and merely came to the conclusion that they had put in 480 days of continuous service in 24 calendar months in the absence of authenticity of the said document by the petitioner Mills. The said finding reached by the first respondent authority on the basis of adverse inference cannot be sustained in the eye of law, as the respondents/claimants have not proved that they had worked for 480 days in 24 calendar months in the petitioner Mills with cogent evidence in this regard. Moreover, it is also seen from the records that out of 34 claimants, 12 claimants had already left the Mills on their own volition.
10. For all the aforesaid reasons, the impugned order is set aside and the writ petition stands allowed. Consequently, W.P.M.P.No.7809 of 2005 is closed. No costs.
Index : yes/no 03.11.2015 ss To 1. The Deputy Commissioner/Chief Inspector of Factories Authority of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 Vellore T.RAJA, J. ss Order in W.P.No.7152 of 2005 03.11.2015