Madras High Court
The Superintending Engineer vs 6 M.Elumalai on 4 August, 2022
W.P.No.26895 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 4.8.2022
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.26895 of 2021
and W.M.P.No.28341 of 2021, 698 of 2022
1 The Superintending Engineer
Tamil Nadu Generation And Distribution
Corporation, Chennai Electricity
Distribution Circle/central,
No.97/5, M.G.R.Salai,
Kodambakkam High Road, Chennai. ... Petitioner
Vs.
1 The Assistant Commissioner of
Labour (Enforcement) Authority Under
Tamilnadu Industrial Establishment
(conferment of Permanent Status to Workmen)
Act Circle -II, Nandanam, Chennai.
2 C.Kalidass
3 N.Velu
4 S.John Thangaiah
5 T.Vasanthakumar
6 E.Velu
7 M.Mathiazhagan
8 R.Vasu
9 K.Selvakumar
10 V.Elumalai
11 G.Mohan
12 P.Ramesh
13 T.Chandrababu
14 B.Murugan
15 V.Kaliappan
1/9
https://www.mhc.tn.gov.in/judis
W.P.No.26895 of 2021
16 M.Elumalai
17 V.Babu
18 S.Ravi
19 P.R.Pushparaghavan ... Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for the
records of the first respondent and quash the order dated 31.8.2021 in I.A. No.1
of 2021 in Na.Ka.No.3612 to 3629 of 2018.
For Petitioner : Mr.Anand Gopalan for
M/s.T.S.Gopalan & Co.
For Respondent No.1 : Mr.S.Rajesh
For Respondents 2 to 6 & : Mr.V.Stalin
8 & 10
For Respondent No.7 : Notice not ready
*****
ORDER
The respondents 2 to 19 have filed a petition before the Inspector of
Labour, Chennai under Rule 6(4) read with Section 3 of the Tamil Nadu
Industrial Establishment (Conferment of Permanent Status to Workmen) Act,
1981 to direct the Tamil Nadu Electricity Board to regularise their services from
the date of completion of 480 days of service and to appoint them in the post
of Field Assistant vacant in the Tamil Nadu Electricity Board and all the
petitions are taken on the file of Assistant Commissioner of Labour
(Enforcement) Circle in Na.Ka.No.3612 to 3629 of 2018.
https://www.mhc.tn.gov.in/judis
W.P.No.26895 of 2021
2. The petitioner Management has filed an application before the
first respondent in I.A.No.1 of 2021 to reject the petitions filed by the
respondents 2 to 19 on the ground that the petitions are not maintainable
before the first respondent. The first respondent dismissed the I.A.No.1 of 2021
by stating that the question of maintainability of the case has to be decided
only when all the procedures of examining the witnesses, materials and
documents evidences besides considering the strength of arguments of both
sides will be over and it cannot be taken as a premature disposal. The said
rejection order is under challenge in the present writ petition before this Court.
3. The counsel appearing for the petitioner relied on the decision of
the Division Bench of this Court in The Superintending Engineer, Erode
Electricity Distribution Circle, Tamilnadu Electricity Board, Erode vs.
Inspector of Labour, Erode and 5 others [W.P.No.4061, 24293 of 2013, etc.
Batch dated 7.3.2022] wherein it was held as follows:
''24. The Labour Inspector vested with the power
under the Act of 1981 is said to be having a summary
power 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
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W.P.No.26895 of 2021
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 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 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
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W.P.No.26895 of 2021
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 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
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W.P.No.26895 of 2021
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 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
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W.P.No.26895 of 2021
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 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.''
4. In the light of judgment rendered by the Division Bench of this
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W.P.No.26895 of 2021
Court cited supra, the order passed by the first respondent is very well
maintainable and the same is perfectly valid in law, therefore, there is no
infirmity or illegality in the order passed by the first respondent. The first
respondent is directed to consider all the application filed before the first
respondent and pass appropriate orders in accordance with law, within a period
of 12 weeks from the date of receipt of copy of the order.
5. With the above directions, the writ petition stands disposed of.
No costs. Consequently, W.M.P.No.28341 of 2021 is allowed. W.M.P.No.698 of
2022 is dismissed.
4.08.2022
Speaking / Non Speaking order
Index : Yes/No
vaan
To
The Assistant Commissioner of Labour (Enforcement) Authority Under
Tamilnadu Industrial Establishment (conferment of Permanent Status to
Workmen) Act Circle -II, Nandanam, Chennai.
https://www.mhc.tn.gov.in/judis
W.P.No.26895 of 2021
D.KRISHNAKUMAR, J.
vaan
W.P.No.26895 of 2021
and W.M.P.No.28341 of 2021, 698 of 2022
Dated: 4.8.2022
https://www.mhc.tn.gov.in/judis
