Madras High Court
T.Vijayakumar vs The Superintending Engineer on 11 April, 2022
W.P.(MD) No.3775 of 2021 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD) Nos.3775, 3778, 3781, 3785, 3786, 3787,
3789, 3790, 3792, 3793, 3794, 3796, 3797, 3798,
3799, 3800, 3801, 3803, 3805 & 3807 of 2021
and
W.M.P.(MD) No.3021 of 2021
W.P.(MD) No.3775 of 2021 :-
T.Vijayakumar ... Petitioner
-vs-
1. The Superintending Engineer,
Theni Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Theni-625 531.
2. The Assistant Engineer,
Cumbum Section
(Tamil Nadu Electricity Board),
Now Changed as TANGEDCO,
Theni District.
3. The Inspector of Labour/
Assistant Commissioner (Implementation)
Under the Tamil Nadu Industrial
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W.P.(MD) No.3775 of 2021 etc., batch
Establishments (Conferment of Perrmanent
Status to Workmen) Act 1981, Theni District. ... Respondents
Prayer:- Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorarified Mandamus to call for the records
relating to the impugned order of the 3rd respondent in Na.Ka.No.686/2010
dated 20.03.2020, quash the same and consequently direct the respondents
herein to absorb the petitioner herein giving permanent status under Sec.
3(1) (2) of the Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act, 1981 and as per conditions in paras 3
and 5 of the Per. B.P.(CHairman) No. 9 dated 09.01.2008 issued by the
Chief Engineer/Personnel (I/C), Tamil Nadu Electricity Board.
In all W.Ps.
For Petitioner : Mr.K.Appadurai
For RR1 & 2 : Mrs.P.Malini
for M/s.T.S.Gopalan & Co.
For R3 : Mr.M.Ramesh
Government Advocate
******
COMMON ORDER
The learned counsel appearing on behalf of the petitioners fairly
made a submission that the Hon'ble First Bench of this Court in W.P.(MD)
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No.4061 of 2013 etc., batch, dated 07.03.2022, allowed the writ petitions
filed by the Tamil Nadu Electricity Board setting aside the orders passed by
the Labour Inspector. The relevant portion of the order reads as follows:-
“21. We have considered the submission aforesaid
and for appreciation of the arguments we have perused the
order passed by the Labour Inspector and the provisions of
the Act of 1981. The Act of 1981 was brought to extend
certain benefits to the employees who work for a continuous
period of 480 days in 24 calendar months and for that
purpose, the employer has to maintain records. The power
has been conferred on the Labour Inspector to issue
directions for maintenance of record and to grant
permanency. In view of the above, we find that the Labour
Inspector is empowered to issue order to grant permanency to
the employee. However, it cannot be after addressing the
complicated issue on facts and law. Whenever a serious
dispute on facts and law is raised, the adjudication thereupon
is permissible only by the Industrial Adjudicator, i.e., the
Labour Court or Industrial Tribunal. The reference of the
judgment of the Apex Court in the case of Steel Authority of
India Limited and others, supra, would be relevant for the
aforesaid and paragraphs 125 and 126 are quoted hereunder
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to show that the issues of the nature referred to above can be
determined only by the "industrial adjudicator". Referring to
the word "industrial adjudicator", it was defined to be an
Industrial tribunal or Labour Court. Paragraphs 125 and 126
are reproduced hereunder:
"125. The upshot of the above discussion is
outlined thus:
(1)(a) Before 28-1-1986, the determination of the
question whether the Central Government or the
State Government is the appropriate Government in
relation to an establishment, will depend, in view of
the definition of the expression “appropriate
Government” as stood in the CLRA Act, on the
answer to a further question, is the industry under
consideration carried on by or under the authority
of the Central Government or does it pertain to any
specified controlled industry, or the establishment
of any railway, cantonment board, major port, mine
or oilfield or the establishment of banking or
insurance company? If the answer is in the
affirmative, the Central Government will be the
appropriate Government; otherwise in relation to
any other establishment the Government of the
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State in which the establishment was situated,
would be the appropriate Government;
(b) After the said date in view of the new definition
of that expression, the answer to the question
referred to above, has to be found in clause (a) of
Section 2 of the Industrial Disputes Act; if (i) the
Central Government company/undertaking
concerned or any undertaking concerned is
included therein eo nomine, or (ii) any industry is
carried on (a) by or under the authority of the
Central Government, or (b) by a railway company;
or (c) by a specified controlled industry, then the
Central Government will be the appropriate
Government; otherwise in relation to any other
establishment, the Government of the State in which
that other establishment is situated, will be the
appropriate Government.
(2)(a) A notification under Section 10(1) of the
CLRA Act prohibiting employment of contract
labour in any process, operation or other work in
any establishment has to be issued by the
appropriate Government:
(1) after consulting with the Central
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Advisory Board or the State Advisory
Board, as the case may be, and
(2) having regard to
(i) conditions of work and benefits
provided for the contract labour in the
establishment in question, and
(ii) other relevant factors including those
mentioned in sub-section (2) of Section
10;
(b) Inasmuch as the impugned notification issued
by the Central Government on 9-12-1976 does not
satisfy the aforesaid requirements of Section 10, it
is quashed but we do so prospectively i.e. from the
date of this
judgment and subject to the clarification that on the
basis of this judgment no order passed or no action
taken giving effect to the said notification on or
before the date of this judgment, shall be called in
question in any tribunal or court including a High
Court if it has otherwise attained finality and/or it
has been implemented.
(3) Neither Section 10 of the CLRA Act nor any
other provision in the Act, whether expressly or by
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necessary implication, provides for automatic
absorption of contract labour on issuing a
notification by the appropriate Government under
sub-section (1) of Section 10, prohibiting
employment of contract labour, in any process,
operation or other work in any establishment.
Consequently the principal employer cannot be
required to order absorption of the contract labour
working in the establishment concerned.
(4) We overrule the judgment of this Court in Air
India case [(1997) 9 SCC 377 : 1997 SCC (L&S)
1344] prospectively and declare that any direction
issued by any industrial adjudicator/any court
including the High Court, for absorption of
contract labour following the judgment in Air India
case [(1997) 9 SCC 377 : 1997 SCC (L&S) 1344]
shall hold good and that the same shall not be set
aside, altered or modified on the basis of this
judgment in cases where such a direction has been
given effect to and it has become final.
(5) On issuance of prohibition notification under
Section 10(1) of the CLRA Act prohibiting
employment of contract labour or otherwise, in an
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industrial dispute brought before it by any contract
labour in regard to conditions of service, the
industrial adjudicator will have to consider the
question whether the contractor has been
interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance
with various beneficial legislations so as to deprive
the workers of the benefit thereunder. If the
contract is found to be not genuine but a mere
camouflage, the so-called contract labour will have
to be treated as employees of the principal
employer who shall be directed to regularise the
services of the contract labour in the establishment
concerned subject to the
conditions as may be specified by it for that
purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and
prohibition notification under Section 10(1) of the
CLRA Act in respect of the establishment concerned
has been issued by the appropriate Government,
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prohibiting employment of contract labour in any
process, operation or other work of any
establishment and where in such process, operation
or other work of the establishment the principal
employer intends to employ regular workmen, he
shall give preference to the erstwhile contract
labour, if otherwise found suitable and, if
necessary, by relaxing the condition as to maximum
age appropriately, taking into consideration the
age of the workers at the time of their initial
employment by the contractor and also relaxing the
condition as to academic qualifications other than
technical qualifications.
126. We have used the expression “industrial
adjudicator” by design as determination of the
questions aforementioned requires enquiry into
disputed questions of facts which cannot
conveniently be made by High Courts in exercise of
jurisdiction under Article 226 of the Constitution.
Therefore, in such cases the appropriate authority
to go into those issues will be the Industrial
Tribunal/Court whose determination will be
amenable to judicial review."
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22. In view of the above, while we are of the view
that the Labour Inspector has the power to issue appropriate
order to grant permanency to the workmen, it cannot be by
adjudicating the complicated questions of fact and law. A
perusal of the Act of 1981 does not provide power in Labour
Inspector of the nature given to the Industrial Adjudicator,
i.e., the Industrial Tribunal or Labour Court, as complete
framework with procedure for it has been given under the Act
of 1947. Certain provisions of the Civil Procedure Code have
been made applicable therein for proper adjudication which
does not exist under the Act of 1981.
23. If the facts of this case are taken into
consideration, we find that the Labour Inspector has recorded
his finding in reference to the Act of 1970 while adjudicating
the issue. Such powers have not been conferred on him,
rather he can pass appropriate order after summary enquiry.
The view expressed by the Single Judge of this court in the
case of Superintending Engineer, Vellore Electricity
Distribution Circle, Vellore and others, supra, is not in
conflict with the view aforesaid, rather in paragraph 35 of the
said judgment, the difference between the power of Labour
Inspector and Labour Court or Industrial Tribunal under the
Act of 1947 has been made. Paragraph (35) of judgment,
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referred supra, is extracted hereunder:
"35. Therefore, I am unable to accept the
submission made on behalf of the Board that the
exercise of the power by the Inspector of Labour in
conferring permanent status after holding
necessary enquiries contemplated under S. 5 read
along with rule 6(4) should be construed as
arrogating to himself the powers available to the
other adjudicatory forums created under the
provisions of the Industrial Disputes Act, 1947. It
will have to be stated that while the exercise of
powers vested with the Inspector under the
provisions of the Act is summary in nature, the
one under the provisions of the Industrial
Disputes Act may be an elaborate one.
Nevertheless the same does not mean that by
exercising the power under the provisions of the
Act the Inspector of Labour would be trespassing
into the adjudication process contemplated under
the provisions of the Industrial Disputes Act. In
this context, if the judgment of the Supreme Court
in Nirchiliya case [1990 (2) L.L.N. 4] (vide supra)
is applied, it can be safely held that where there is
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no prohibition under the provisions of either the
Industrial Disputes Act or the Act, exercise of the
power in the manner in which it can be done by the
Inspector of Labour under the Act cannot be found
fault with. It will have to be stated that such an
exercise would be well within the statutory
limitations provided under the Act. In fact, in the
above-referred to judgment of the Hon'ble Supreme
Court, the question for consideration was whether
the workmen who initially raised an industrial
dispute under the Industrial Disputes Act and who
did not pursue it till its logical end when chose to
move the authority under the then Madras Shops
and Commercial Establishment Act, the Hon'ble
Supreme Court held that in the absence of any
prohibition under either of the enactments, such a
course adopted by the workmen cannot be faulted.
Therefore, applying the said ratio to the case on
hand, it can be safely held that the concerned
workmen here were placed in a better footing when
they chose to straightaway move the Inspector of
Labour under the Act, inasmuch as according to the
workmen, having regard to the facts prevailing as
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on date, they were entitled for the conferment of
permanent status as provided under the Act. If such
a claim of the workmen was not factually
maintainable, it was for the Board to have resisted
the said claim with all available materials and
could have convinced the Inspector of Labour as
the claim ought not to have been countenanced.
The Board having miserably failed to perform its
duties in the manner expected of it, it cannot be
now allowed to contend or complain against the
powers exercised by the Inspector of Labour which
was within the provisions of the Act. In this context,
if the judgment of the Division Bench of this Court
in Metal Powder Company, Ltd. case [1985 (2)
L.L.N. 738] (vide supra), is applied, then also it
can be safely held that the Inspector of Labour was
well within his jurisdiction in holding the
proceedings in the manner it was held and in
passing the order by directing the petitioner/Board
to confer permanent status on the workmen."
[emphasis supplied]
24. The Labour Inspector vested with the power
under the Act of 1981 is said to be having a summary power
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of enquiry, while an elaborate adjudication of questions of
fact and law can be only under the Act of 1947.
25. In view of the above, we can safely hold that the
Labour Inspector can exercise jurisdiction only in the nature
of summary enquiry, while a case involving complicated
question of fact and law to be left for its adjudication under
the Act of 1947. The Labour Inspector can exercise his power
under the framework of the Act of 1981. He has no power to
adjudicate the issue in reference to other statutes, which
includes the Act of 1970.
26. Since we have analyzed the issue aforesaid, we
would like to refer to the impugned order of the Labour
Inspector to find out as to whether he has caused a summary
enquiry or has travelled beyond his jurisdiction to adjudicate
the questions of fact and law pertaining to the other statute.
27. A perusal of the order passed by the Labour
Inspector in the case on hand shows an adjudication of the
issue in reference to the Act of 1970 also, though it was not
within his competence. He is not having powers to comment
on the nature of employment and the policy adopted by the
petitioner corporation. He was required to simply see whether
the workman has rendered continuous service for 480 days in
24 calendar months. Thus, on the aforesaid issue, the
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interference therein may require to be made.
28. The other ground for challenge to the order of
the Labour Inspector is that without any discussion to show
continuous service of an employee for 480 days in 24
calendar months, the finding has been W.P.No.4061 of 2013
etc. batch recorded. The order under challenge does not refer
to the 24 calendar months of each workman to record its
finding about his continuous working for 480 days therein by
giving details of the days and months.
29. From a perusal of the order of the Labour
Inspector, we find that after referring to the testimonies of the
parties and the documents, a finding has been recorded,
without disclosing the period of 24 calendar months and 480
days working of each workman therein. The finding has been
recorded in a superficial manner. The aforesaid could not be
contested by learned counsel appearing for the workmen.
However, it is submitted that while setting aside the order
passed by the Labour inspector, the matter may be remanded
with a direction for fresh enquiry with liberty to the workmen
to produce the material.
30. After going through the order passed by the
Labour Inspector, we find that the Labour Inspector has not
recorded his finding in reference to each workman about his
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continuous service for 480 days in 24 calendar months. Thus,
we need to cause interference with the order.
31. As we recorded a finding about the jurisdiction
of the Labour Inspector and applicability of the Act of 1981,
we accept the argument of learned counsel for the
respondents to remand the case for fresh enquiry by the
Labour Inspector to find out the continuous working of each
employee for continuous period of 480 days in a period of 24
calendar months for passing the appropriate orders.
32. At this stage, learned counsel for the petitioner
submitted that even if the matter is remanded, it should be
with a clarity of the fact that the benefit under Section 3 of the
Act of 1981 be given only if the workman is still in
employment and not otherwise. It is also keeping in mind the
terms of settlement and thereby the benefit may not be
extended beyond what has been provided in the settlement.
33. The argument aforesaid has been contested. It is
submitted that even if any of the workman is not in service,
though stated to be in service, the benefit of permanency
under Section 3 of the Act of 1981 being automatic should not
be denied to any of the workman if discontinued, rather it
should be with liberty to challenge the discontinuance, but till
then and for the intervening period, he remained in service
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after becoming eligible for permanency, consequential
benefits may be allowed.
34. We have considered the submission aforesaid
and find that the order passed by the Labour Inspector needs
to be interfered with remand of the case. It is, however, to be
made clear that the Labour Inspector would not cause
enquiry beyond the powers given under the Act of 1981 and
thereby would not be having jurisdiction to adjudicate the
complicated questions of fact and law in reference to any
other statute than the Act of 1981. The Labour Inspector may,
for the purpose of conducting summary enquiry, allow the
parties to produce documents and if any of the workmen has
completed 480 days of continuous service in 24 calendar
months, appropriate directions can be issued for granting
permanency. However, even if such an order is issued, it
should be with a clear finding about each workman and the
number of working days by referring to the period of 24
calendar months. The benefit as to the consequences
thereupon would be only for the period of employment and if
any of the workman is discontinued or not in service, he
would be entitled to the benefit only for the period of service
and not beyond that and, that too, after the completion of
continuous service of 480 days in 24 calendar months, and
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not for a prior period. The direction aforesaid is not driven by
the settlement for the reason that the workmen herein are
those who were not extended the benefit of settlement and,
therefore, sought claims by maintaining claim separately.
However, it would not preclude both the sides from entering
into settlement, if they so choose, during the period of
summary enquiry by the Labour Inspector. The issue as to
whether the respondents fall within the definition of
"workman" is however decided against the petitioner
Corporation, as not only a settlement was entered, but
adjudication about claim to seek permanency has been
decided earlier in reference to similarly placed.
35. With the aforesaid directions, all the writ
petitions are disposed of by causing interference with the
order passed by the Labour Inspector. The orders passed by
the Labour Inspector are set aside with remand of the case to
the Labour Inspector for passing orders afresh, after
summary enquiry.”
2. In view of the judgment of the Hon'ble First Bench of this
Court, there is no infirmity as such in respect of the orders passed by the
Inspector of Labour declining the claim of the writ petitioners for grant of
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permanent status under the provisions of the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act, 1981.
3. Accordingly, all the writ petitions are disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
11.04.2022
Internet:Yes
Index:Yes
abr
To
1. The Superintending Engineer,
Theni Electricity Distribution Circle,
Tamil Nadu Electricity Board, Theni-625 531.
2. The Assistant Engineer,
Cumbum Section
(Tamil Nadu Electricity Board),
Now Changed as TANGEDCO,
Theni District.
3. The Inspector of Labour/ Assistant Commissioner (Implementation)
Under the Tamil Nadu Industrial
Establishments (Conferment of Perrmanent
Status to Workmen) Act 1981, Theni District.
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W.P.(MD) No.3775 of 2021 etc., batch
S.M.SUBRAMANIAM, J.
abr
W.P.(MD) Nos.3775, 3778, 3781, 3785,
3786, 3787, 3789, 3790, 3792, 3793,
3794, 3796, 3797, 3798, 3799, 3800,
3801, 3803, 3805 & 3807 of 2021
11.04.2022
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