Madras High Court
The Management vs The Deputy Commissioner Of Labour on 29 April, 2022
W.P. No. 17645 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2022
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 17645 of 2019
and
W.M.P. Nos. 17099 and 17580 of 2019
The Management,
Metropolitan Transport Corporation,
Anna Salai,
Chennai – 600 002. … Petitioner
-vs-
1. The Deputy Commissioner of Labour,
Kancheepuram.
2. V.Gopala Krishnan ... Respondents
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Certiorari, calling for the records pertaining to
the order passed in Application Na. Ka. No. E/4330/2016 dated 28.01.2019 on
the files of the First Respondent and quash the same.
For Petitioner : Mr. M.Chidambaram, Standing Counsel
For Respondents : Mr. Vadivelu Deenadayalan,
Additional Government Pleader (for R1)
Mr. V.Ajoy Khose (for R2)
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1/9
W.P. No. 17645 of 2019
ORDER
Heard Mr. M.Chidambaram, Learned Standing Counsel appearing for the
Petitioner, Mr. Vadivelu Deendayalan, Learned Additional Government Pleader
appearing for the First Respondent and Mr. V.Ajoy Khose, Learned Counsel for
the Third Respondent and perused the materials placed on record, apart from
the pleadings of the parties.
2. The Second Respondent was engaged as Reserve Crew Conductor by the
Petitioner from 18.11.2010 onwards and was given appointment as daily paid
on 21.10.2013. In that backdrop, the Second Respondent made an application
under Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act, 1981 (hereinafter referred to as the
'Permanent Status Act' for short) in Na. Ka. No. A545/2014 before the First
Respondent claiming the benefit of conferment of permanent status on having
completed 'continuous service' for a period of 480 days in a period of 24
calender months in the industrial establishment of the Petitioner. Subsequently,
the Petitioner confirmed the services of the Second Respondent on 01.11.2014
for having completed 240 days of employment. The claim made by the Second
Respondent was resisted by the Petitioner by contending that the appointment
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W.P. No. 17645 of 2019
was made only as Reserve Crew Conductor on temporary basis against vacancy
that may arise in future and there had not been any permanent vacancy as on
date of initial engagement of the Second Respondent. It was also pleaded that
the benefit of confirmation in service had been granted on completion of 240
days of continuous service from the date of appointment on daily paid wages
subject to the satisfactory performance without any charges/punishment during
that period. The First Respondent by Order in Na. Ka. No. E/4330/2016 dated
28.01.2019 rejected the said objections raised by holding that the Second
Respondent was entitled to that benefit with effect from 02.10.2012 in terms of
the Permanent Status Act, which has overriding effect on all laws which also
includes the agreements between the parties. Aggrieved by the said order, the
Petitioner has filed this Writ Petition challenging the same.
3. It is vehemently contended by the Learned Counsel for the Petitioner that
when the Second Respondent had accepted the benefit of confirmation in
service without any demur, he is estopped from invoking the provisions of the
Permanent Status Act. It must, at once, be pointed out here that the Hon'ble
Supreme Court of India in Oswal Agro Furane Ltd., -vs- Oswal Agro Furane
Workers Union [(2005) 3 SCC 224] has reiterated the legal position that a
settlement cannot be arrived between the employer and its employees under the
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W.P. No. 17645 of 2019
provisions of the I.D. Act, without satisfying the requirements of law or in
contravention of legal provisions. When it is not in dispute that the Second
Respondent was employed from 18.11.2010 onwards following the prescribed
procedure of recruitment, he is entitled to the constitutional guarantee of
equality of opportunity and treatment in public employment under Articles 14
and 16 of the Constitution. As such, the Petitioner could not unilaterally treat as
if the Second Respondent had worked only from 21.10.2013 merely because the
daily paid appointment was given from that date. The conferment of permanent
status on the Second Respondent with effect from 02.10.2012, when he
completed 480 days of 'continuous service' in a period of 24 calender months in
the establishment of the Petitioner, is more beneficial than the confirmation of
service granted by the Petitioner to him with effect from 01.11.2014. In this
context, it would be beneficial to refer to the observations made by the Hon'ble
Supreme Court of India in State of Punjab -vs- Jagjit Singh [(2017) 1 SCC
148] that squarely applies to the fact situation that has arisen in the Writ
Petition, as extracted below:-
“58. In our considered view, it is fallacious to determine
artificial parameters to deny fruits of labour. An employee
engaged for the same work cannot be paid less than another who
performs the same duties and responsibilities. Certainly not, in a
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W.P. No. 17645 of 2019
welfare State. Such an action besides being demeaning, strikes at
the very foundation of human dignity. Anyone, who is compelled to
work at a lesser wage does not do so voluntarily. He does so to
provide food and shelter to his family, at the cost of his self-
respect and dignity, at the cost of his self-worth, and at the cost of
his integrity. For he knows that his dependants would suffer
immensely, if he does not accept the lesser wage. Any act of
paying less wages as compared to others similarly situate
constitutes an act of exploitative enslavement, emerging out of a
domineering position. Undoubtedly, the action is oppressive,
suppressive and coercive, as it compels involuntary subjugation.”
Having due regard to the aforesaid fact situation borne out from the record, the
non-obstante clause, viz., 'notwithstanding anything contained in any law for
the time being in force' in Section 3 of the Permanent Status Act, coupled with
Explanation II thereto that for purpose of that legal provision, 'law' includes any
award, agreement, settlement, instrument or contract of service whether made
before or after the commencement of the Permanent Status Act, it is not
possible to countenance the submissions made on behalf of the Petitioner so as
to deprive the concomitant benefits that the Second Respondent is entitled in
law. This view expressed is fortified by the decisions of the Division Benches
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W.P. No. 17645 of 2019
of this Court in Managing Director, Tamil Nadu State Transport Corporation
Ltd., Coimbatore Division -vs- Shanmugam (Judgment dated 30.09.2019 in
W.A. Nos. 2871 and 2872 of 2018) and Management, Tamil Nadu State
Transport Corporation (Madurai) Ltd., -vs- Labour Inspector (Judgment
dated 28.11.2019 in W.A. (MD) No. 768 of 2015) in respect of the certain other
employees of the Petitioner, who are similarly placed to the Second Respondent
in this case.
4. The next submission of the Learned Counsel for the Petitioner is that
there has been inordinate delay and unexplained laches on the part of the
Second Respondent in approaching the First Respondent for conferring the
benefit under the Permanent Status Act, which factor disentitles the Second
Respondent for any relief under the Permanent Status Act. In the first place,
when no period of limitation has been prescribed under the Permanent Status
Act for making an application for conferment of permanent status, there is no
scope for entertaining such contention. Moreover, the Division Bench of this
Court in R.Lakshmi -vs- Chief Engineer (Personnel), Tamil Nadu Electricity
Board [(2012) 6 MLJ 480] has held that a workman, who had completed 480
days of continuous service in a period of 24 calender months, would become
automatically a permanent employee under the employer, even if the employer
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W.P. No. 17645 of 2019
had not conferred him with the permanent status, or even if no direction was
issued by the competent authority in that regard under the Permanent Status Act
or the Rules framed thereunder. As such, there is no merit in this objection
raised so as to deserve any consideration.
5. In view of the foregoing discussion, there does not appear to be any
infirmity in the decision-making process of the First Respondent requiring
interference by this Court in the exercise of discretionary powers of judicial
review under Article 226 of the Constitution. It is incumbent upon the
Petitioner to forthwith give effect to the impugned order by issuing necessary
orders fixing the pay scale of the Second Respondent to which he is
legitimately entitled in terms thereof and furnish a working-sheet showing the
notional benefits and the actual amount payable for the entire period including
contribution payable towards Provident Fund/Pension Scheme by 31.07.2022,
and the payment of the arrears due shall be made under written
acknowledgment and report of such compliance shall be filed by 30.09.2022
before the Registrar (Judicial) of this Court.
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W.P. No. 17645 of 2019
In the result, the Writ Petition is dismissed with the aforesaid
clarifications. Consequently, the connected Miscellaneous Petitions are closed.
No costs.
29.04.2022
vjt
Index: Yes/No
Note: Issue order copy by 24.05.2022.
To
1. The Deputy Commissioner of Labour,
Kancheepuram.
2. The General Manager,
Metropolitan Transport Corporation,
Anna Salai,
Chennai – 600 002.
Copy to
The Registrar (Judicial),
Madras High Court,
Chennai – 600 104.
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W.P. No. 17645 of 2019
P.D. AUDIKESAVALU, J.
vjt
W.P. No. 17645 of 2019
29.04.2022
https://www.mhc.tn.gov.in/judis
