Madras High Court
Madurai Corporation vs The Inspector Of Labour on 22 April, 2022
W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.04.2022
(Reserved on 16.03.2022)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017 and
Connected Miscellaneous Petitions
W.A(MD)No.1163 of 2016:-
Madurai Corporation,
Madurai,
Rep. by its Commissioner ... Appellant
vs.
1. The Inspector of Labour, Madurai.
2. P.Paramasivan
3. S.Umaiyaraj
4. M.Thangapandi
5. K.Selvi
6. K.Theivandhiran
7. M.Madasamy
8. D.Subbulakshmi
9. C.Ramar
10.R.Mariyadass
11.V.Murugan
12.S.Govindasamy
13.M.Selvam
14.G.Vijayakumar
15.V.Gnanam
16.C.Alagammal
17.A.Pitchamuthu
18.T.Pandiyammal
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
19.T.Kuppusamy
20.K.Padma
21.M.Karuppasamy
22.M.Mariappan
23.R.Kannan
24.S.Rani
25.K.Balasubramanian
26.S.Malliga
27.R.Valli
28.S.Arumugam
29.M.Alagurani
30.P.Murugan
31.P.Suresh
32.V.Devi
33.M.Saraswathi
34.P.Adaikalam
35.A.Ambedkar
36.A.Valasappan
37.P.Ravichandran
38.M.Jambunathan
39.K.Panjavarnam
40.M.Pandiyammal
41.M.Lakshmi
42.A.Sheeladevi
43.T.Alagammal
44.G.Mayilammal
45.M.Muthupandi
46.S.Muthumari
47.Veeralakshmi
48.S.Shanthi
49.R.Padampiriyal
50.A.Selvapandi
51.A.Ramesh
52.Arumugam
53.G.Alagammal
54.A.Mariappan
55.A.Arumugam
56.V.Murugan
57.P.Arayee
58.P.Thayammal
59.M.Meena
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
60.T.Manimegalai
61.M.Nallalu
62.K.Pitchaiammal
63.M.Murugesan
64.A.Lakshmi
65.M.Pandiyammal
66.P.Lakshmi
67.N.Vasanthi
68.M.Arammal
69.C.Chitradevi
70.P.Irulandi
71.M.Mariyammal
72.A.Manikandan
73.A.Vennila
74.P.Shanmugavalli
75.K.Meenakshisundaram
76.R.Panhavarnam
77.K.Andi
78.P.Sakthi
79.P.Rakkammal
80.S.Ganesan
81.A.Veeriyakali
82.M.Muniyammal
83.K.Lakshmi
84.M.Murugammal
85.V.Kuppatchi
86.V.Pattu
87.P.Alagarsamy
88.C.Veerammal
89.M.Velammal
90.M.Seethalakshmi
91.K.Poopandi
92.M.Mariyammal
93.A.Chinnathai
94.M.Ganesan
95.J.Periyar
96.P.Shanmugam
97.P.Pandiyammal
98.P.Alamu
99.S.Anitha
100.M.Pappa
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
101.L.Alagurani
102.P.Tamilarasi
103.A.Devi
104.A.Karthik
105.K.Valivittan
106.M.Sonai
107.T.Pongodi
108.P.Subbammal
109.R.Muniyasamy
110.M.Rakkammal
111.K.Mookkammal
112.P.Muthukumar
113.M.Kannan
114.P.Muniyammal
115.K.Meenatchi
116.R.Deivanai
117.M.Mookkammal
118.Padanaselvi
119.P.Palpandiyammal
120.M.Ilango
121.A.Parvathi
122.P.Rajendran
123.Veerasamy
124.K.Perumal
125.N.Karthik
126.R.Saravanan
127.A.Rani
128.K.Vaiivittan
129.A.Mariyammal
130.C.Murugan
131.G.Selvakumar
132.M.Chinnakumar
133.P.Veerapandi
134.P.Seeniyammal
135.P.Murugan
136.J.Lawrence
137.T.Ramalakshmi
138.N.Nagammal
139.R.Mariyammal
140.N.Panjavarnam
141.S.Vasantha
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
142.R.Vellaiyammal
143.K.Muthupillai
144.C.Muthumari
145.A.Shanthi
146.P.Mariyammal
147.C.Balamurugan
148.C.Senthilkumar
149.P.Chandra
150.M.Jothimuthu
151.P.Muthupalani
152.P.Malathi
153.R.Sangili
154.M.Malaiyandi
155.S.Kaliyammal
156.M.Palaniyammal
157.M.Alagar
158.P.Meena
159.P.Palaniyammal
160.K.Selvakumar
161.M.Mahalakshmi
162.A.Murugeswari
163.A.Mahalakshmi
164.B.Latha
165.C.Nagalakshmi
166.A.Subbammal
167.P.Murugeswari
168.O.Selvi
169.S.Suriyaprakash
170.Ganesan
171.R.Kaliyappan
172.R.Eswaran
173.E.Meena
174.P.Seethalakshmi
175.S.Parvathi
176.M.Kavitha
177.D.Mahalakshmi
178.P.Sevanammal
179.M.Meena
180.S.Rohini
181.M.Siva
182.A.Velmurugan
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
183.M.Mari
184.S.Alagar
185.P.Kuruvan
186.P.Palani
187.K.Kruppasamy
188.K.Maragadavalli
189.R.Palani
190.R.Marry
191.P.Radhamani
192.N.Palpandi
193.M.Muthuselvam
194.A.Alagarsamy
195.S.Mahendran
196.M.Pandi
197.N.Kumaravel
198.R.Raja
199.A.Boominathan
200.T.Muthuganesan
201.P.Mookkaiah
202.P.Arumugam
203.P.Ramar
204.P.Manikandan
205.M.Nallu
206.K.Kalimuthu
207.P.Meenakshi
208.P.Kadarkaraiyan
209.G.Natarajan
210.A.Perumal
211.K.Kaliyammal
212.Veerammal
213.A.Devaki
214.M.Murugeswari
215.K.Meenatchiammal
216.S.Panjavarnam
217.G.Alagi
218.G.Muthukumar
219.D.Velmurugan
220.R.Murugan
221.G.Murugan
222.T.Kaliyappan
223.T.Muniyandi
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
224.K.Sevugan
225.M.Muniyandi
226.L.Selvam
227.T.Nallathangal
228.M.Muthalammal
229.V.Rajammal
230.T.Gnanamathi
231.K.Madathi
232.M.Pitchaimuthu
233.G.Nagarajan
234.A.Mariyammal
235.V.Malliga
236.P.Palaniyammal
237.M.Selvam
238.K.Pandi
239.S.Pandi
240.P.Balamurugan
241.S.Lakshmi
242.S.Kalyani
243.R.Krishnaveni
244.P.Selvi
245.K.Balammal
246.G.Kanniyammal
247.V.Radha
248.R.Kannaki
249.V.Muthukumar
250.S.Manikandan
251.T.Varadharajan
252.C.Ayyanar
253.A.Alagar
254.P.Moorthy
255.A.Velammal
256.S.Kanniyammal
257.M.Palaniyammal
258.S.Nataraj
259.M.Ayyappan
260.B.Vijayalakshmi
261.S.Radhika
262.M.Selvakumar
263.M.Muthuvel
264.P.alagarsamy
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
265.K.Meenatchi
266.S.Muniyammal
267.I.Veerapathiran
268.K.Murugesan
269.V.Subramaniyan
270.P.Krishnapandi
271.S.Ramasamy
272.T.Muniyandi
273.G.Velammal
274.T.Arumugam
275.M.Kannan
276.E.Murugan
277.N.Muthu
278.A.Pandi
279.M.Arumugam
280.R.Panneerselvam
281.Asirvadham
282.A.Nagammal
283.K.Valli
284.S.Jakkammal
285.R.Karthigai Jothi
286.A.Karpagam
287.K.Janaki
288.P.Pandiyammal
289.P.Palpandi
290.K.Saravanan
291.S.Ramalakshmi
292.C.Muthulaksmi
293.R.Muthulakshmi
294.A.Meenatchi
295.S.Velmurugan
296.K.Palraj
297.M.Valliyammal
298.A.Shanmugavalli
299.M.Ponnuthai
300.P.Pandiyaraj
301.P.Lakshmi
302.M.Muthumari
303.P.Pushpavalli
304.K.Baskaran
305.S.Kalimuthu
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
306.V.Latha
307.T.Kanniyammal
308.V.Dharmapandi
309.A.Muniyasamy
310.V.Shakthivel ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the
order dated 03.09.2015 in W.P(MD)No.16595 of 2013.
For Appellant : Mr.Veera Kathiravan
Additional Advocate General assisted by
Mr.R.Murali
For Respondents : Mr.Ajay Khosh for Mr.A.Rahul
W.A(MD)No.1164 of 2016:-
The Management of Madurai Corporation.
Rep by its Commissioner,
Madurai. ... Appellant
vs.
1.P.Paramasivan
2.Madurai Maanagaratchi Thozhlilalar Sangam,
rep by its General Secretary,
19, Bharathiyar Road,
Melaponnagaram,
Madurai-625 016.
3.The Inspector of Labour,
Madurai. ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the
order dated 03.09.2015 in W.P(MD)No.14148 of 2013.
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
For Appellant : Mr.Veera Kathiravan
Additional Advocate General assisted by
Mr.R.Murali
For R1 : Mr.Ajay Khosh for Mr.A.Rahul
For R2 : Mr.A.Kannan
Additional Government Pleader
W.P(MD)No.20438 of 2017:-
The Commissioner,
Madurai Corporation,
Madurai. ... Petitioner
vs.
1. The Labour Inspector, Tamilnadu Housing Board Complex,
Ellis Nagar, Madurai-625 016.
2. Veeran
3. Mayavan
4. Solaiyammal
5. Muthupandi
6. Marikumar
7. Mariyammal
8. Sundaramoorthy
9. Muthupandi
10.Muthukumar
11.Mariyammal
12.Subramaniyan
13.Kanagavel
14.Raja
15.Muthuraja
16.Pandiyammal Devi
17.Devi
18.Jayabarathi
19.Pandiyan
20.Samikannu
21.Nagarajan
22.Meenakshi
23.Murugan
24.Mariyappan
25.Kanniyammal
26.Murugeshwari
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
27.Marichamy
28.Vijiveeran
29.Pandi
30.Palaniyammal
31.Pushpam
32.Subbulakshmi
33.Kaveri
34.Ponkasthuri
35.Marimuthu
36.Paulpandi
37.Chinnapandi
38.Ramprasad
39.Thiyagarajan
40.Subramaniyan
41.Alagumalai
42.Ramar
43.Muthu
44.Stalin
45.Karpagam
46.Perumal
47.Murugan
48.Krishnan
49.Tamilselvi
50.Shanmugam
51.Mariyammal
52.Dhanalakshmi
53.Chekkan
54.Veeralakshmi
55.Alagumalai
56.Chandran
57.Nilamathi
58.Meena
59.Palanichamy
60.Sethu
61.Murugan
62.Mangayarthilagam
63.Maheswari
64.Nageswaran
65.Pandilakshmi
66.Nagarajan
67.Veeriah
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
68.Puvaneshwari
69.Velmurugan
70.Arumugam
71.Muthukumar
72.Malaiyammal
73.Murugammal
74.Murugayee
75.Ganesan
76.Pandiyammal
77.Alagu Pandi
78.Eswaran
79.Suresh
80.Packiyam
81.Sundararajan ... Respondents
Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorari, by calling for the records relating to
the proceedings of the 1st respondent made E/1827/13-CPS Nos.1/13
to 58/13 and 76/13 to 97/13 (Except CPS No.81/13) dated
23.02.2017 and quash the same.
For Petitioner : Mr.Veera Kathiravan
Additional Advocate General assisted by
Mr.R.Murali
For R1 : Mr.A.Kannan
Additional Government Pleader
For R2 to R81 : Mr.Ajay Khosh for Mr.A.Rahul
except R9
For R9 : Mr.V.Jeyarani
W.P(MD)No.20442 of 2017:-
Madurai Corporation,
Madurai,
Rep by its Commissioner ... Petitioner
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
vs.
1.The Inspector of Labour,
Ellis Nagar, Madurai.
2.A.Murugesan ... Respondents
Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorari, by calling for the records relating to
the proceedings of the 1st respondent made in E.3229/12 Ma.Ne.
25/015136/13 dated 30.12.2016 and quash the same.
For Petitioner : Mr.Veera Kathiravan
Additional Advocate General assisted by
Mr.R.Murali
For R1 : Mr.A.Kannan
For R2 : Mr.K.Vamanan
COMMON JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The only question involved in these writ appeals and the
writ petitions is as to whether the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act,
1981, (hereinafter referred to as, ''the Act 46 of 1981'' for the sake of
brevity) would apply to the appellant Corporation and as to whether
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W.P(MD)Nos.20438 and 20442 of 2017
the authority constituted under the Act 46 of 1981 could direct
conferment of permanent status on the sanitary workers appointed
by the Corporation.
2. The brief facts that led to the proceedings are as follows:-
The Madurai Corporation had employed several persons as
sanitary workers on a daily wage basis on various dates between
2006 and 2007. About 309 such employees moved the Inspector of
Labour seeking conferment of permanent status under the Act 46 of
1981 during the year 2010. Those claims were numbered as
CPS.Nos.1 to 309 of 2010 before the authority. The authority, on a
consideration of the facts and circumstances of the case, came to the
conclusion that the Corporation would be a 'shop' as defined under
the Tamil Nadu Shops and Establishments Act, 1947, and since the
fact that these employees who were working for more than 480 days
in two calendar years, are entitled to be regularised under the
provisions of the Act 46 of 1981, was not in dispute, the authority by
its order dated 21.02.2013, directed conferment of permanent status
on all the 309 employees.
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
3. This order directing conferment of permanent status was
challenged by the Corporation before this Court in W.P(MD)No.16595
of 2013. Since the orders of the authority were not complied with
and permanent status was not granted, the workmen namely, the
sanitary workers moved this Court by way of W.P(MD)No.14148 of
2013 seeking a direction in the nature of a Writ of Mandamus,
directing the 1st respondent Corporation to regularise 309 sanitary
workers by implementing the orders of the competent authority
under the Act 46 of 1981. Both these writ petitions came to be
disposed of by a common order dated 03.09.2015. While the writ
petition filed by the Corporation challenging the orders of the
authority was dismissed, the writ petition filed by the workmen
seeking a Mandamus directing implementation of the orders of the
authority, was allowed. Aggrieved, the Corporation had filed the
above two writ appeals.
4. In the interregnum, another set of 80 employees moved
the competent authority seeking conferment of permanent status in
CPS.Nos.1/13 to 58/13 and 76/13 to 97/13 (Except CPS No.81/13).
Those petitions were also allowed by the competent authority by
order dated 23.02.2017. This order is challenged by the Corporation
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
in W.P(MD)No.20438 of 2017. Another sanitary worker A.Murugesan
filed a claim petition before the competent authority under the Act 46
of 1981, seeking conferment of permanent status and the same came
to be allowed by the Inspector of Labour namely, the competent
authority, by order dated 30.12.2016. Aggrieved by the said order,
the Corporation has come up with W.P(MD)No.20442 of 2017. As per
the directions of the Hon'ble Administrative Judge, these writ
petitions were tagged on with the above writ appeals.
5. We have heard Mr.Veera Kathiravan, the learned
Additional Advocate General appearing for the Corporation assisted
by Mr.R.Murali, and Mr.A.Kannan, learned Additional Government
Pleader for the 1st respondent in both the writ petitions and 2nd
respondent in W.A(MD)No.1164 of 2016 and Mr.Ajay Khosh for
Mr.A.Rahul, for the sanitary workers who are cited as respondents.
6. It is not in dispute that the sanitary workers though
appointed on a temporary basis, have been working on a daily wage
basis for more than 480 days in two calendar years immediately
following their appointments. The only question that is raised and
argued before us in these writ appeals and the writ petitions is that
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
the competent authority erred in concluding that the Corporation
would be a 'shop' as defined under the Tamil Nadu Shops and
Establishments Act, 1947.
7. Mr.Veera Kathiravan, learned Additional Advocate General
appearing for the Madurai Corporation would also fault the common
judgment of the Writ Court, contending that the Writ Court had not
adverted to the specific contentions of the Corporation that the
Madurai Corporation would not be an 'industrial establishment' within
the meaning of Section 2(3) of the Act 46 of 1981. It is also the
further contention of the learned Additional Advocate General that the
Corporation being a statutory body governed by its own recruitment
rules, any recruitment made against the recruitment rules shall be
deemed to be a back door entry and therefore no benefit could
accrue to those employees who have been recruited without following
the recruitment rules. The learned Additional Advocate General
would also submit that the Madurai Corporation which is a statutory
Corporation, cannot be termed as an 'industrial establishment' within
the meaning of Section 2(3) of the Act 46 of 1981.
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W.P(MD)Nos.20438 and 20442 of 2017
8. Drawing our attention to the definition, the learned
Additional Advocate General would submit that if the Corporation
cannot be called an 'industrial establishment' as defined under
Section 2(3) of the Act 46 of 1981, there is no question of
conferment of permanent status. He would also invite our attention
to the judgments of the Hon'ble Supreme Court as well as this Court
in Hindustan Petroleum Corporation Ltd., vs. Ashok Ranghba Ambre
reported in (2008) 2 SCC 717, Indian Drugs & Pharmaceuticals Ltd.,
vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in
(2007) 1 SCC 408, Jodhpur Vidyut Vitran Nigam Ltd., vs. Nanu Ram
and others reported in (2006) 12 SCC 494, Madhya Pradesh
Electricity Board vs. Hariram reported in (2004) 8 SCC 246, Oil and
Natural Gas Corporation vs. Krishnan Gopal and others reported in
2020 SCC Onine SC 150, Hindustan Aeronautics Ltd., s. Dan Bahadur
Singh and others reported in (2007) 6 SCC 207, A.Umarani vs.
Registrar, Co-operative Societies and others reported in (2004) 7 SCC
112 and State of Karnataka and others vs. Umadevi and others
reported in (2006) 4 SCC 1, in support of his submissions.
9. Contending contra, Mr.Ajay Khose, learned counsel
appearing for the respondents/workmen would submit that even
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
though the appellant Corporation could not be termed as a 'shop' as
defined under the Tamil Nadu Shops and Establishments Act, 1947, it
would fall within the definition of a 'factory' as defined under Section
2(m) of the Factories Act, 1948. Therefore, it would be an 'industrial
establishment' as defined under Section 2(3) of the Act 46 of 1981.
Once the appellant Corporation could be treated as a factory within
the meaning of Section 2(3)(a) of the Act 46 of 1981, since the fact
that the workmen or the sanitary workers had worked for more than
480 days in two calendar years is not in dispute, the order of the
authority directing permanency cannot be interfered with.
10. The learned counsel would also contend that the mere fact
that the authority had treated the Corporation as a shop within the
meaning of the Tamil Nadu Shops and Establishments Act, 1947,
would not stand in the way of this Court deciding as to whether the
Corporation would be an 'industrial establishment' as defined under
Section 2(3) of the Act 46 of 1981 and that is precisely what has
been done by the Writ Court and therefore, the claim of the
Corporation that it would not be an industrial establishment as
defined under Section 2(3) of the Act 46 of 1981, has to be rejected.
Arguing further, the learned counsel would submit that the Hon'ble
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
Supreme Court and this Court had repeatedly held that the
proposition of law laid down by the Hon'ble Supreme Court in
A.Umarani vs. Registrar, Co-operative Societies and others
reported in (2004) 7 SCC 112 and State of Karnataka and others
vs. Umadevi and others reported in (2006) 4 SCC 1, regarding
public employment would not apply to cases covered by the Act 46 of
1981.
11. The learned counsel would rely upon the following
judgments of the Hon'ble Supreme Court and this Court in support of
his submissions:-
(i) V.P.Gopala Rao vs. Public Prosecutor, Andhara Pradesh
reported in 1969 (1) SCC 704.
(ii) Delhi Gymkhana Club Limited vs. Employees' State
Insurance Corporation reported in (2015) 1 SCC 142.
(iii) Ardeshir H.Bhiwandiwala vs. State of Bombay reported in
AIR 1962 SC 29.
(iv) State of Maharashtra and another vs. Sarva Shramik
Sangh, Sangli and others reported in 2013-IV-LLJ-513(SC)
(v) The Executive Engineer, TWAD Board, Tirunelveli, and
others vs. The Inspector of Labour, Tirunelveli, and others
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W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
(W.A(MD)Nos.352 to 354 of 2019, dated 07.08.2019)
(vi) The Management, Tamilnadu Khadi and Village Industries
Board, Chennai vs. Industrial Estate General Workers Union, Chennai
(W.A.No.758 of 2016, dated 24.07.2018), to which, one of us (RSMJ)
was a party.
(vii) K.Thiruvenkataswami vs. Coimbatore Municipality reported
in (1968) 1 LLJ 361
(viii) K.Gangadhar and others vs Appellate Authorty under the
Payment of Gratuity Act and others reported in 1994-II-LLN 726
(ix) Municipal Board, Hathras vs. Union of India and others
reported in AIR 1975 Allahabad 364.
(x) Ravi Shankar Sharma vs. The State of Rajasthan and
another reported in AIR 1993 Raj 117
(xi) D.N.Banerjee vs. P.R.Mukherjee and others reported in AIR
1953 SC 58
(xii) Corporation of the City of Nagpur vs. Employees reported
in AIR 1960 SC 675
12. From the rival contentions, it could be seen that the only
question that is to be decided in these writ appeals and writ petitions
is as to whether the Madurai Corporation could be deemed to be a
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'factory' within the meaning of Section 2(m) of the Factories Act,
1948 and whether the competent authority under the Act 46 of 1981,
has the power to direct conferment of permanency on the employees.
13. Section 2(3) of the Act 46 of 1981 defines 'industrial
establishment' as follows:-
''(3) ''industrial establishment'' means---
(a) a factory as defined in clause (m) of Section 2 of
the Factories Act, 1948 (Central Act LXIII of 1948) or any
place which is deemed to be a factory under sub-section (2)
of section 85 of that Act; or
(b) a plantation as defined in clause (f) of section 2 of
the Plantations Labour Act, 1951 (Central Act LXIX of 1951);
or
(c) a motor transport undertaking as defined in clause
(g) of section 2 of the Motor Transport Workers Act, 1961
(Central Act 27 of 1961); or
(d) a beedi industrial premises as defined in clause (i)
of section 2 of the Beedi and Cigar Workers (conditions of
employment) Act, 1966. (Central Act 32 of 1966); or
(e) an establishment as defined in clause (6) of section
2 of the Tamil Nadu Shops and Establishment Act, 1947
(Tamil Nadu Act XXXVI of 1947); or
(f) a catering establishment as defined in clause(1) of
section 2 of the Tamil Nadu Catering Establishment Act,
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1958.(Tamil Nadu Act XIII of 1958) ; or
(g) any other establishment which the Government
may, by notification, declare to be an industrial
establishment for the purpose of this Act.''
14. Section 2(4) of the Act 46 of 1981 defines the 'workman'
as follows:-
''(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 and includes a badli workman, but does not include
any such person, --
(a) who is employed in the police service or as an officer or
other employee of a prison ; or
(b) who is employed mainly in managerial or administrative
capacity ; or
(c) who, being employed in a supervisory capacity, draws
wages exceeding three thousand and five hundred rupees
per mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature.''
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15. Section 3 of the Act 46 of 1981 reads as follows:-
''3.Conferment of permanent status to workmen.—(1)
Notwithstanding anything contained in any law for the time
being in force every workman who is in continuous service
for a period of four hundred and eighty days in a period of
twenty four calendar months in an industrial establishment
shall be made permanent.
(2) A workman shall be said to be in continuous service for
a period if he is, for that period, in uninterrupted service,
including service which may be interrupted on account of
sickness or authorized leave or an accident or a strike, which
is not illegal, or a lock-out or a cessation of work which is
not due to any fault on the part of the workman.
[For the purposes of computing the continuous service
referred to in sub-sections (1) and (2), a workman shall be
deemed to be continuous service during the days on which
--- ] ;
(i) he has been laid off under an agreement or as permitted
by standing orders made under the Industrial Employment
(Standing Orders) Act, 1946 (Central Act XX of 1946) or
under any other law applicable to the industrial
establishment ;
(ii) he has been on leave with full wages, earned in the
previous years;
(iii) he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment; and
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(iv) in the case of a female, she has been on maternity
leave; so, however, that the total period of such maternity
leave does not exceed twelve weeks.''
16. Section 3 of the Act 46 of 1981 provides for conferment of
permanent status on a workman who satisfies the conditions
prescribed under Section 3. The power is conferred on the
competent authority to confer such permanent status. As already
pointed out, in the cases on hand, there is no dispute regarding the
factual matrix namely, the fact that the workmen had completed 480
days of continuous service and they satisfy the requirements of
Section 3 of the Act 46 of 1981. The only question that is disputed is
the applicability of the Act to the employer namely, the Madurai
Corporation. The authority has arrived at a conclusion that the
Madurai Corporation would be a 'shop' within the meaning of the
Tamil Nadu Shops and Establishments Act, 1947. The Writ Court has
affirmed the conclusion of the authority though on different grounds.
17. While Mr.Veera Kathiravan, learned Additional Advocate
General would vehemently contend that by no stretch of imagination
can Madurai Corporation be termed as a shop as defined under the
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Tamil Nadu Shops and Establishments Act, 1947, Mr.Ajay Khose,
learned counsel appearing for the workmen would contend that even
assuming that the Madurai corporation cannot be termed as a shop
as defined under Section 2(6) of the Tamil Nadu Shops and
Establishments Act, 1947, it could fall within the definition of 'factory'
as defined under Section 2(m) of the Factories Act, 1948 and
therefore, the Inspector of Labour is the competent authority under
the Act 46 of 1981. Therefore, the competent authority was justified
in exercising jurisdiction under Section 3 of the said Act and directing
conferment of permanent status on the sanitary workers.
18. In order to consider the rival contentions, we will have to
necessarily look at the definition of the term 'shop' under the Tamil
Nadu Shops and Establishments Act, 1947, and the term 'factory'
under the Factories Act, 1948.
19. Section 2(6) of the Tamil Nadu Shops and Establishments
Act, 1947, reads as follows:-
''(6) 'establishment' means a shop. commercial
establishment, restaurant, eating-house, residential hotel,
theatre or any place of public amusement or entertainment
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and includes such establishment as the State Government
may by notification declare to be an establishment for the
purposes of this Act.
20. We have no hesitation in accepting the contention of
Mr.Veera Kathiravan, learned Additional Advocate General that the
Corporation cannot be termed as 'establishment' under Section 2(6)
of the Tamil Nadu Shops and Establishments Act, 1947, but the
question does not end there. As rightly contended by Mr.Ajay Khose,
if the Corporation answers the definition of an 'industrial
establishment' as defined under Act 46 of 1981, the said Act would
apply to it and the authority under the Act would have the power to
confer permanency on the workers who qualify under Section 3 of the
said enactment. We have to, therefore, examine as to whether the
Madurai Corporation would answer the description of an 'industrial
establishment' under Section 2(3) of the Act 46 of 1981. We have
already extracted the definitiion of the term 'industrial establishment'
in Section 2(3) of Act 46 of 1981.
21. Section 2(m) of the Factories Act, 1948, which defines
'factory', reads as follows:-
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''(m) “factory” means any premises including the
precincts thereof—
(i) whereon ten or more workers are working, or were
working on any day of the preceding twelve months, and in
any part of which a manufacturing process is being carried
on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or
were working on any day of the preceding twelve months,
and in any part of which a manufacturing process is being
carried on without the aid of power, or is ordinarily so
carried on, but does not include a mine subject to the
operation of the Mines Act, 1952 (35 of 1952), or a mobile
unit belonging to the armed forces of the Union, railway
running shed or a hotel, restaurant or eating place.''
22. The term 'manufacturing process' has been defined in
Section 2(k) of the Factories Act which reads as follows:-
''(k) “manufacturing process” means any process for—
(i) making, altering, repairing, ornamenting, finishing,
packing, oiling, washing, cleaning, breaking up,
demolishing, or otherwise treating or adapting any
article or substance with a view to its use, sale,
transport, delivery or disposal; or
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press,
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lithography, photogravure or other similar process or book
binding; or
(v) constructing, reconstructing, repairing, refitting, finishing
or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage.''
23. Let us now consider the judicial pronoucements on this
aspect:-
(i) In K.Thiruvenkataswami vs. Coimbatore Municipality
reported in (1968) 1 LLJ 361, this Court has considered the
definition of a 'factory' under Section 2(m) of the Fatories Act, 1948,
and had concluded that the Electricity Department of the Coimbatore
Municipality could be called a 'factory' within the meaning of Section
2(m) of the Factories Act, 1948, and therefore the provisions of the
Industrial Employment (Standing Orders) Act, 1946, would apply to
the employees of the Electricity Department of the Coimbatore
Municipal Corporation.
(ii) In The Regional Director, Employees State Insurance
Corporation, Jaipur, vs. The Assistant Engineer, Municipal
Council, Water Works, Ganganagar, reported in 1972 RLW 258,
the Rajasthan High Court had held that water works of a Municipal
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Corporation would be a 'factory' as defined under Section 2(m) of the
Fatories Act, 1948. The Court observed as follows:-
''21.There is no manner of doubt that in the Water
Works the process of cleaning the water is involved so that it
may be rendered proper and sufficient for preventing danger
to the health of inhabitants from the insufficiency or
unwholeso-oneness. Then water has to be pumped.
Therfore, the treatment of water as also the act of storing
and supplying it by pumping will undoubtedly constitute a
manufacturing process within the meaning of sec. 2(k) of
the Factories Act, 1948. The term “power” as defined in this
Act means electrical energy, or any other form of energy
which is mechanically transmitted and is not generated by
human or animal agency. There is, therefore, no substance
in the contention that the Water Works maintatned by the
Municipal Council were not a factory within the meaning of
the Act.''
(iii) In K.Gangadhar and others vs Appellate Authorty
under the Payment of Gratuity Act and others reported in 1994-
II-LLN 726, the Andhra Pradesh High Court held that the existence
of a definite premises is not required for an establishment to be
called a 'factory' within the meaning of Section 2(m) of the Factories
Act, 1948. The Hon'ble Mr.Justice SRI.B.SUBHASHAN REDDY (as
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he then was) had observed as follows:-
''4. Dealing with the first contention that the provisions
of the Gratuity Act, 1972, are not applicable on the ground
that the management is neither a factory nor an
establishment, I repel the contention of the management.
The word “factory” is defined under S. 2(m) of Factories Act,
1948, and the contention of the management is that there is
no premises for carrying on manufacturing process by the
management and as such, it cannot be construed as a
factory, is not acceptable for the reason that, it is the
manufacturing process which is the criterion and not the
premises or place in question. It cannot be disputed that the
making of beedis is a manufacturing process and the words
“manufacturing process” under definition clause contained
under S. 2 (k) of Beedi and Cigar Workers (Conditions of
Employment) Act, 1966, clearly take in the process of
making beedis as a manufacturing process, wherever the
manufacturing process is carried. May be, a particular place,
a premises or the same are scattered over, nevertheless,
the object being the manufacturing process, a definite place
or premises loses its significance and instances are galore,
where in judicial precedents, it was held that any place,
even that of a sea shore, where prawns are processed, can
be construed as a factory within the meaning of Factories
Act, 1948. As such, I have got no hesitation to hold that the
management is a factory.''
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(iv) In Mohan Singh and others vs. Chairman, Railway
Board and others reported in (2015) 10 SCC 759, the Hon'ble
Supreme Court had an occasion to consider the definition of a
'factory' under Section 2(m) of the Factories Act, 1948. The
contention of the Railway Board in the said case was that the
activities of the Divisional Railway Manager Office of Railways cannot
be said to be within the premises and therefore, it cannot called a
'factory'. Repelling the said contention, the Hon'ble Supreme Court
held as follows:-
''18 The more important question that arises is
whether the said manufacturing activities are carried on
within the premises of DRM Office, Moradabad. Black’s Law
Dictionary, 5th Edition defines ‘Premises’, so far as estates
and property are concerned, as lands and tenements. With
regard to the Worker’s Compensation Act, ‘premises of
employer’ is not restricted to permanent site of the
employer’s business nor to property owned or leased by him
but contemplates any place under the exclusive control of
the statutory employer where his normal business is
conducted or carried out.” In Kamla Devi V. LaxmiDevi
(2000) 5 SCC 646, in the context of the Delhi Rent Control
Act, this Court has held that even an open plot of land so
long as it has some structures on it, will fall within the
meaning of ‘premises’. Extrapolating from these decisions,
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we are in no manner of doubt that the DRM Office of
Moradabad Division along with all the appurtenant lands,
yards, etc. are ‘premises’ within the contemplation of the
Factories Act. In Ardeshir H. Bhiwandiwala v. State of
Bombay AIR 1962 SC 29, the Constitution Bench explained
that "premises including precincts" does not necessarily
mean that:
''6. ... the premises must always have precincts.
Even buildings need not have any precincts. The word
"including" is not a term restricting the meaning of the
word "premises" but is a term which enlarges the scope
of the word "premises".
A comprehensive reading of the Factories Act, 1948
clearly shows that the word “premises” can refer to an entire
area, which may have several separate buildings, within it,
or which may correspond to an open yard. Further, an
important point to consider is that the definition of
"manufacturing process" does not mandate that the
manufacturing activities should be carried on in one building
alone. What this definition really deals with is the nature of
the work done and not with where that work is to be done.
It must, therefore, be held that all the requirements of the
term “factory” as defined under Section 2(m) of the Act are
satisfied on the facts of the present case. Thus, the premises
of DRM, Moradabad must be also treated as a factory under
the Factories Act, 1948 in which case Moradabad Canteen
shall ipso facto corresponded to a ‘Statutory Canteen’ within
the meaning of Section 46 of the Act.''
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(v) In Municipal Board, Hathras vs. Union of India and
others reported in AIR 1975 Allahabad 364, the Allahabad High
Court has considered the definition of manufacturing process in
Section 2(k) of the Factories Act, 1948. While doing so, the Court
held that pumping of water and water works of a Municipal
Corporation would be a 'manufacturing process' under Section 2(k) of
the Factories Act, 1948.
(vi) In Ravi Shankar Sharma vs. The State of Rajasthan
and another reported in AIR 1993 Raj 117, the Rajasthan High
Court held that washing and cleaning would fall within the definition
of 'manufacturing process' as defined under Section 2(k) of the
Factories Act, 1948.
(vii) In D.N.Banerjee vs. P.R.Mukherjee and others
reported in AIR 1953 SC 58, the Hon'ble Supreme Court held that
the Municipal Corporation is an 'industry' under the Industrial
Disputes Act, 1947. While doing so, the Hon'ble Supreme Court
observed as follows:-
''15. A public utility service such as railways,
telephones and the supply of power, light or water to the
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public may be carried on by private companies or business
corporations. Even conservancy or sanitation may be so
carried on, though after the introduction of local self-
government this work has in almost every country been
assigned as a duty to local bodies like our Municipalities or
District Boards or Local Boards. A dispute in these I services
between employers and workmen is an industrial dispute,
and the proviso to Section 10 lays down that where such a
dispute arises and a notice under Section 22 has been given,
the appropriate Government shall make a reference under
the sub-section. If the public utility service is carried on by a
corporation like a Municipality which is the creature of a
statute, and which functions under the limitations imposed
by the statute, does it cease to be an industry for this
reason? The only ground on which one could say that what
would amount to the carrying on of an industry if it is done
by a private person ceases to be so if the same work is
carried on by a local body like a Municipality is that in the
latter there is nothing like the investment of any capital or
the existence of a profit earning motive as there generally is
in a business. But neither the one nor the other seems a
sine qua non or necessary element in the modern conception
of industry.''
(viii) In Corporation of the City of Nagpur vs. Employees
reported in AIR 1960 SC 675, the Hon'ble Supreme Court
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considered the question whether the said Corporation of Nagpur is an
'industry' or not. The Court answered the question in the affirmative
and held that the Corporation would be an 'industry'.
(ix) In Uttaranchal Forest Development Corporation and
another vs. Jabar Singh and others reported in (2007) 2 SCC
112, the Hon'ble Supreme Court had an occasion to consider the
meaning of the term 'factory' and 'manufacturing process' as defined
under Section 2(m) and 2(k) of the Factories Act, 1948. The Hon'ble
Supreme Court concluded that the process of cutting of trees by axe
and changing the shape of the timber into logs would amount to a
manufacturing process and the Forest Development Corporation
would be a factory within the meaning of Section 2(m) of the Act. As
we had already pointed out, the definition of 'manufacturing process'
in Section 2(k) read with Section 2(m) of the Act would definitely
make the Corporation a Factory.
(x) In Ardeshir H.Bhiwandiwala vs. State of Bombay
reported in AIR 1962 SC 29, the Hon'ble Supreme Court had held
that premises does not necessarily mean that it should be a
precincts. The Hon'ble Supreme Court had held that even salt works
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would be a premises. Therefore, the fact that the sanitary workers
are not engaged within a particular premises would not deprive them
of the benefit under the Act 46 of 1981.
(xi) In Delhi Gymkhana Club Limited vs. Employees' State
Insurance Corporation reported in (2015) 1 SCC 142, the Hon'ble
Supreme Court held that the preparation of foodstuffs and serving in
the Kitchen by the appellant Club for providing catering services to its
members, was held to be a manufacturing process and therefore, the
Club would be a 'factory' as defined under Section 2(12) of the
Employees' State Insurance Act, 1948. The principles laid down
therein would certainly apply to the case on hand.
(xii) Recently, a Division Bench of this Court in The
Superintending Engineer, Erode Electricity Distribution Circle,
Erode vs. Inspector of Labour, Erode, (W.P.No.4061 of 2013
etc., batch dated 07.03.2022), had considered the applicability of
the Act 46 of 1981 to the Electricity Board and the contention of the
Board that the provisions of the Act 46 of 1981 could not be applied
in derogation of the service rules of the Board namely, Tamil Nadu
Electricity Board Service Regulations framed under the Electricity
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(Supply) Act, 1948. A specific plea on behalf of the Board was to the
effect that the Inspector of Labour cannot direct conferment of
permanent status even in favour of those persons who are not
engaged by the Corporation as per the service regulations. Repelling
the contention, the Hon'ble Division Bench held that the Service Rules
and Act 46 of 1981 operate on different fields and they are not in
conflict with each other. While doing so, the Division Bench had
observed as follows:-
''18. The argument aforesaid has been
contested by the side opposite and we find
that the Act of 1981 is not in conflict with the
Tamil Nadu Electricity Board Service
Regulations, rather both the legislations are
occupying different fields of operation. The
Regulations provides for the mode of selection,
apart from the qualification, etc., but other
than the mode provided therein when
employees are engaged by the petitioner
corporation, then he cannot be denied the
benefit of the Act of 1981. It is more so when
both the legislations are not in conflict with
each other and otherwise the similar benefit,
as claimed by the employees in this case, has
been given in the past. The petitioner
corporation entered into settlement on
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10.8.2007, which would not have been
required if the Act of 1981 could not have
been applicable. The settlement aforesaid has
already been upheld by the Division Bench of
this court by its judgment dated 24.10.2008.
In view of the above, we are unable to accept
the first argument raised by learned counsel
for the petitioner corporation.''
The Court further held that the Labour Inspector in that case
had overstepped its authority and therefore, while setting aside the
orders, had remitted the matter to the Labour Inspector for fresh
consideration in the light of the provisions of the Act 46 of 1981. We
are, therefore, fortified in our conclusions that the Act 46 of 1981
empowers the Labour Inspector to direct conferment of permanent
status on employees who had worked for 480 days in two calendar
years de hors the manner in which they were employed. Once we
find that the Corporation would be an industrial establishment as
defined under Section 2(3) of the Act 46 of 1981 and it is admitted
that all the workmen/sanitary workers had worked for 480 days in
two calendar years, they would be entitled to conferment of
permanent status. The manner in which they were recruited would
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definitely take the backseat, since the provisions of the Act 46 of
1981 which is a beneficial legislation, will have to be strictly
construed and applied de hors the method of recruitment.
(xiii) Useful reference can also be made to the judgment of this
Court in The Management, Tamilnadu Khadi and Village
Industries Board, Chennai vs. Industrial Estate General
Workers Union, Chennai (W.A.No.758 of 2016, dated
24.07.2018), to which, one of us (RSMJ) was a party, wherein, it
has been held that the Khadi and Village Industries Board would be
an 'industry' within the meaning of Section 2(3) of the Act 46 of 1981
and the workmen are entitled to permanent status. It will be useful
to extract paragraphs 14 and 15 of the said judgment:-
''14. A cursory reading of the above definition of the
term 'workmen' under the 1981 Act, would show that the
definition is couched in a very wide language and would take
with in its sweep all kinds of casual/contract employees.
Section 3 of the said Act makes it mandatory for the
Industrial Establishment to accord permanent status to
workmen, who had worked for 480 days in 24 calendar
months. The Act also further provides for penal
consequences in the event of violations.
15. The other contention of the learned Additional
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Advocate General is that all these workmen were not direct
employees of the appellant Board and they were employed
by the contractors and paid on piece rate basis. The said
contention has to fail since the Labour Court has on facts
found that the workmen were employed in the Carpentry
Division of the appellant Board and were paid wages on
piece rate basis. Merely because the wages were paid on
piece rate basis, it cannot be presumed that the workmen
were not employed by the appellant Board. The Labour
Court has held that there is Master and Servant relationship
between the appellant Board and the Workmen after
referring to the evidence on the side of the workmen
particularly exhibits W.32 and W.33 series, wherein, the
workmen were issued identity cards under the Employees
State Insurance Scheme as well as the Employees Provident
Fund Scheme. The Labour Court on an analysis of the
evidence that was placed before it had come to a factual
conclusion that the workmen were actually employed by the
appellant Board and they had also worked for 480 days
continuously over a period of 24 months. The learned Single
Judge had also agreed with the said findings of the Labour
Court. No material has been placed before us, to enable us
to take a different view. It has not been shown that the said
factual conclusion of the Labour Court is either perverse or is
based on no material.''
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24.If we are to consider the case on hand in the light of the
definition and the judicial pronoucements referred to above, it will be
abundantly clear that the function of the disposal of garbage/sanitary
works carried out by the Corporation by itself would bring it within
the meaning of a factory. Section 2(k) which defines the
'manufacturing process' includes collection of an object for disposal.
We have no doubt in our mind that collection of garbage for disposal
would fall within the ambit of the definition of 'manufacturing process'
under Section 2(k)(i) of the Factories Act, 1948. Once we conclude
that collection of garbage for disposal by itself would amount to
manufacturing process, automatically the Corporation would answer
the description of a factory as defined under Section 2(m) of the
Factories Act, 1948. Once we reach the conclusion that the
Corporation would be a factory within the meaning of Section 2(m) of
the Factories Act, 1948, it would automatically answer the description
of 'industrial establishment' as defined under Section 2(3)(a) of the
Act 46 of 1981.
25. Adverting to the decisions relied upon by the learned
Additional Advocate General, the Hon'ble Supreme Court has upheld
the constitutional validity of the Tamil Nadu Act 46 of 1981 in State
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of Tamil Nadu and others vs. Nellai Cotton Mills Ltd., and
others reported in (1990) 2 SCC 518. A perusal of the Act 46 of
1981 would show that it does not make a distinction between a
temporary employee appointed regularly or a temporary employee
appointed irregularly. The Act itself is a beneficial legislation intended
to confer permanent status on workmen who satisfy the requirements
of Section 3 of the said Act, in order to avoid continuous exploitation
of workmen by employers. If a private employer or a private
industry which would answer the definition of 'industrial
establishment' under the Act 46 of 1981, will have to subject itself to
the jurisdiction of the Inspector of Labour and confer permanent
status on its employees who had worked for more than 480 days in
two calendar years.
26. We see no reason to exclude the applicability of the
enactment to the statutory corporation and other quasi-Government
bodies. A provision is made under the Act exempting certain
industrial establishments and the power of exemption is also granted
to the Government. It is not the claim of the Corporation that it
either falls under Section 7 which exempts certain industrial
establishments or that there is any notification exempting the
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applicability of the Act to the Corporation. In the absence of any
exemption granted, the Corporation will have to necessarily comply
with the orders of the authority under the Act, which directs
conferment of permanent status on the workmen.
27. The Hon'ble Supreme Court in Maharashtra State Road
Transport Corporation and another vs. Casteribe Rajya
Parivahan Karmchari Sanghatana reported in (2009) 8 SCC 556,
had held that the law relating to irregular appointments as declared
by Umadevi's case would not apply to matters covered by specific
labour statutes which confer permanent status on certain workmen.
This Court has also taken the view that the regularisation of
employees is different from conferment of permanent status. In
Hindustan Petroleum Corporation Limited and another vs. The
Presiding Officer, Central Government Labour Court cum
Industrial Tribunal, Chennai, reported in 2008 (4) CTC 819, this
Court had an occasion to consider the difference between
regularisation and conferment of permanent status. While rejecting
the contention that regularisation of back door entrance and
conferment of permanent status under the enactment would be the
same, this Court held as follows:-
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''38.Once there is a valid State enactment providing
for relief to such of those workmen deemed permanency to
those who had completed 480 days' of service within a
period of two calendar years then, such workmen getting
permanent status cannot be questioned by any
Management. Such conferment of permanent status to the
workmen cannot be labelled as violation of Articles 14 and
16 of the Constitution. The effect of a local enactment
conferring permanent status to workmen was never
considered by any Court so far.''
28. It is thus clear that once the State enactment which has
been held to be a valid piece of legislation provides for conferment of
permanent status on certain workmen upon completion of certain
period of services, the question whether they were appointed as per
the service rules or not, will fade into insignificance and once it is
shown that they satisfy the requirements of law conferring
permanent status on them, they would be entitled to the benefit of
permanent status, de hors the method of recruitment. Adverting to
the decision cited by Mr.Veera Kathiravan, learned Additional
Advocate General in Hindustan Petroleum Corporation Ltd., vs.
Ashok Ranghba Ambre reported in (2008) 2 SCC 717, the
Hon'ble Supreme Court was concerned with termination of services of
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an employee. The Hon'ble Supreme Court held that even though the
termination was bad under Section 25F of the Industrial Disputes Act,
1947, the employee cannot be treated as a permanent employee and
a direction cannot be issued by the High Court to make the petitioner
a permanent employee and extend the benefits on that basis from
1992. The said judgment was rendered in terms of the provisions of
the Industrial Disputes Act, 1947, and there is no reference to any
enactment that is akin to the Act 46 of 1981. We, therefore, do not
think that the said judgment could safely be applied to the facts of
the present case.
29. In Indian Drugs & Pharmaceuticals Ltd., vs.
Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in
(2007) 1 SCC 408, also, the Supreme Court decried the practice of
making regularisation as a mode of appointment. There also, we do
not find any reference to an enactment which confers permanent
status on employees who were appointed irregularly. No doubt, the
mode of recruitment or method of recruitment will have to be
respected and followed, but at the same time, when an enactment
prescribes conferment of permanent status on certain workmen de
hors the mode of recruitment, the provisions of the enactment will
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have to be given primacy. Hence, we are afraid that the judgment in
Indian Drugs & Pharmaceuticals Ltd., vs. Workmen, Indian
Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408,
would also be of no help to the appellant Corporation.
30. In Jodhpur Vidyut Vitran Nigam Ltd., vs. Nanu Ram
and others reported in (2006) 12 SCC 494, the Supreme Court
noted the difference between regularisation and conferment of
permanency. There also, we do not find any reference to a law which
confers certain rights on workers who had put in certain amount of
service similar to the Act 46 of 1981. We, therefore, do not think
that the said judgment would also be of any help to the Corporation.
31. In Madhya Pradesh Electricity Board vs. Hariram
reported in (2004) 8 SCC 246, the Hon'ble Supreme Court was
concerned with a person who was employed in a project work for
specific instances. On facts, the Apex Court held that the nature of
the work namely, digging pits for erection of poles cannot be
construed as a permanent job. We, therefore, do not find that the
said judgment of the Supreme Court could be of any assistance to
the appellant Corporation.
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32. In Oil and Natural Gas Corporation vs. Krishnan
Gopal and others reported in 2020 SCC Online SC 150, the
Hon'ble Supreme Court has, in fact, concluded that the statutory
power of the Labour Court or the Industrial Court to grant relief to
workmen including the status of permanency continues to exist in the
circumstances where the employer has indulged in unfair labour
practice by not filling up permanent posts even though such posts are
available and by continuing to employ workmen as temporary on
daily wage employees, despite they are performing the same work as
regular workmen on lower wages. In fact, it will be useful to
reproduce paragraph 23 of the said judgment which reads as
follows:-
''23 The following propositions would emerge upon
analyzing the above decisions:
(i) Wide as they are, the powers of the Labour Court and the
Industrial Court cannot extend to a direction to order
regularisation, where such a direction would in the context
of public employment offend the provisions contained in
Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or
Industrial Court to grant relief to workmen including
the status of permanency continues to exist in
circumstances where the employer has indulged in an
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unfair labour practice by not filling up permanent
posts even though such posts are available and by
continuing to employ workmen as temporary or daily
wage employees despite their performing the same
work as regular workmen on lower wages;
(iii) The power to create permanent or sanctioned posts lies
outside the judicial domain and where no posts are
available, a direction to grant regularisation would be
impermissible merely on the basis of the number of years of
service;
(iv) Where an employer has regularised similarly situated
workmen either in a scheme or otherwise, it would be open
to workmen who have been deprived of the same benefit at
par with the workmen who have been regularised to make a
complaint before the Labour or Industrial Court, since the
deprivation of the benefit would amount to a violation of
Article 14; and
(v) In order to constitute an unfair labour practice under
Section 2(ra) read with Item 10 of the Vth Schedule of the
ID Act, the employer should be engaging workmen as badlis,
temporaries or casuals, and continuing them for years, with
the object of depriving them of the benefits payable to
permanent workmen.''
33. This judgment of the Hon'ble Supreme Court, in fact,
advances the case of the workmen in these writ appeals and writ
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petitions. The Act 46 of 1981 confers a power on the Inspector of
Labour to direct permanency of employees who had worked for more
than 480 days in two calendar years. As we had already pointed out,
there is no dispute with regard to the fact that all the employees had
worked for 480 days in two calendar years. The work of sanitary
workers in a Corporation cannot be at any stretch of imagination
termed as temporary.
34. The Municipal Solid Wastes (Management and Handling)
Rules, 2000, would show that the municipal authority is burdened
with the responsibility of implementation of the provisions of the rules
and therefore, it cannot be said that collection and disposal of wastes
is a temporary phenomenon. It is a continuing factor which has to be
carried out by the Corporation. Therefore, the Corporation cannot be
had to contend that the sanitary workers were employed purely on
temporary basis to carry out the temporary work.
35. The next decision cited by Mr.Veera Kathiravan, learned
Additional Advocate General in Hindustan Aeronautics Ltd., s. Dan
Bahadur Singh and others reported in (2007) 6 SCC 207, is also
one rendered with reference to the provisions of service law where it
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was held that a person cannot claim permanency in the absence of
availability of the posts. We, therefore, do not think that this
judgment could be of any help to further the cause of the
Corporation. Needless to point out that both in A.Umarani vs.
Registrar, Co-operative Societies and others reported in (2004)
7 SCC 112 and State of Karnataka and others vs. Umadevi and
others reported in (2006) 4 SCC 1, the Hon'ble Supreme Court has
decried appointment of a person on temporary basis to regular posts
in public employment. This Court has time and again held that those
two decisions of the Hon'ble Supreme Court will not put fetters on the
applicability of the Act 46 of 1981 on the workers who are appointed
by an industrial establishment on a temporary basis.
36. In the light of the discussion above, we are unable to fault
the Writ Court for having dismissed the writ petition filed by the
Corporation challenging the conferment of permanent status and
allowing the writ petition filed by the workmen directing the
implementation of the orders of the Inspector of Labour conferring
permanent status. Insofar as the writ petitions before us in
W.P(MD)Nos.20438 and 20442 of 2017 are concerned, they challenge
the subsequent orders of the Inspector of Labour conferring
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permanent status on 81 workmen. In the light of the conclusions
reached, we have no hesitation in dismissing the said writ petitions
confirming the orders passed by the Inspector of Labour directing
conferment of permanent status on 81 workmen involved in the two
writ petitions.
37. In the upshot, the Writ Appeals and the Writ Petitions filed
by the Corporation will stand dismissed confirming the orders of the
Writ Court and the orders of the Inspector of Labour conferring
permanent status on the workmen. No costs. Consequently,
connected miscellaneous petitions are closed.
38. Before parting with this case, we wish to add the
following:-
No doubt, the State and Central Governments call themselves
as Welfare Governments, but our little experience shows that most of
the unfair labour practices of employing temporary workmen even to
discharge permanent work, is being practiced by the statutory
corporations and the departments of the Government with impunity.
Most of the times, these temporary appointments and recruitments
which are made without following the service rules result in denial of
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equal opportunity in public employment. Unless a conscious effort is
made by the authority concerned to curb exploitation of workmen by
keeping them as temporary workmen under lower salary, though
they do a work of permanent character, malady will remain. Despite
rules having been framed for appointments, we find temporary
appointments are made, thereby, letting in people through the back
door and schemes for regularisation are being implemented by the
Government by way of Government Orders, thereby, paving way for
such back door entrance to become regular employees. We hope
that the practice of having temporary employees at a lower pay for
discharging work of permanent character, would be dispensed with by
the State and its arms in future.
(R.S.M., J.) (N.S.K., J.)
22.04.2022
Index : Yes / No
bala
To
1)Madurai Corporation,
Madurai,
Rep. by its Commissioner
2)The Commissioner,
The Management of Madurai Corporation,
Madurai.
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3)The Inspector of Labour,
Madurai.
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R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
PRE-DELIVERY COMMON JUDGMENT MADE IN
W.A(MD)Nos.1163 and 1164 of 2016 and
W.P(MD)Nos.20438 and 20442 of 2017
DATED : 22.04.2022
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