Madras High Court
The Superintending Engineer vs The Inspector Of Labour on 12 August, 2022
W.P.No.7278 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2022
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.7278 of 2015
and
M.P.No.1 of 2015
The Superintending Engineer,
Namakkal Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Namakkal. ...Petitioner
-Vs-
1.The Inspector of Labour,
Office of the Inspector of Labour,
Namakkal.
2.P.Kandasamy
3.P.Elangovan
4.M.Murugesan
5.R.Duraisamy ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records of the 1st
respondent in relation to his proceedings in Na.Ka.No.139/2010 dated
1/16
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W.P.No.7278 of 2015
31.05.2011 directing the petitioner to confer permanent status to the
respondents 2 to 5 herein as workers in TANGEDCO/Namakkal Electricity
Distribution Circle, Namakkal and quash the same as illegal.
For Petitioner : Mr.Haroon Al Rasheed
for M/s.T.S.Gopalan & Co.
For R1 : Mr.S.Prabhakaran
Government Advocate
For R2 : Mr.B.Manoharan
For R3 : Mr.K.Selvaraj
ORDER
The order passed by the first respondent-Inspector of Labour under
the provisions of the Tamil Nadu Industrial Establishment Conferment of
Permanent Status to Workmen) Act is under challenge in this Writ Petition.
2. The petitioner states he was working as Superintending Engineer in
the Namakkal Electricity Distribution Circle, Namakkal District. He states
that the respondents 2 to 5 were the applicants before the Inspector of
Labour, Namakkal and they filed an application on the basis that they were
working as Contract Labourers under the control of the Superintending
Engineer, Namakkal Electricity Distribution Circle and they have put in
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W.P.No.7278 of 2015
service of 480 days within a continuous period of 24 calendar months. Thus,
they are entitled for conferment of permanent status under Section 3 of the
Tamil Nadu Industrial Establishment (Conferment of Permanent Status to
Workmen) Act, 1981.
3. The learned counsel for the petitioner mainly contended that there
was no adjudication before the Inspector of Labour. It was not established
before the first respondent that the respondents 2 to 5 had completed the
service of 480 days. In the absence of any such adjudication, the Inspector
of Labour has not authority to pass an Award granting permanent status,
which would run counter to the provisions of the Board's Rules and
Regulations. In the absence of adjudication of facts, the authority ought not
to have arrived at a conclusion that the respondents-workmen served for 480
days. Such a presumptive decision regarding the services rendered by the
respondents 2 to 5 are untenable.
4. The Hon'ble Division Bench of this Court elaborately considered
the same issue in a batch of Writ Petitions filed by The Superintending
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W.P.No.7278 of 2015
Engineer, Erode Electricity Distribution Circle, Tamilnadu Electricity
Board Vs. Inspector of Labour and others reported in (2022) SCC OnLine
Mad 1003, wherein it was held as follows:-
"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
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W.P.No.7278 of 2015
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, 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
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W.P.No.7278 of 2015
there is 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 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
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W.P.No.7278 of 2015
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 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.
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W.P.No.7278 of 2015
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
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W.P.No.7278 of 2015
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 continuous service for 480 days in
24 calendar months. Thus, we need to cause
interference with the order.
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W.P.No.7278 of 2015
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
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W.P.No.7278 of 2015
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 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
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W.P.No.7278 of 2015
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."
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W.P.No.7278 of 2015
5. As per the principles laid down by the Division Bench of this Court
in the aforesaid case, the respondents-workmen are bound to establish that
they have served in the Board's establishment and they are entitled for
absorption as per 12(3) Settlement and the Board's proceedings issued based
on the settlement.
6. Regarding the terms and conditions of settlement for permanent
absorption, the respondents-workmen have to approach the competent
Labour Court for complete adjudication of facts and the disputed issues.
Therefore, the Inspector of Labour cannot entertain an application and pass
an order granting permanent status which is otherwise not in consonance
with the 12(3) settlement entered into between the Electricity Board and
Workers' Union for the purpose of permanent absorption.
7. Thus, an adjudication under the Industrial Disputes Act became
imminent for the purpose of crystallizing the rights of the workmen. Once
the right are crystallized, then only they are entitled for the relief of
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W.P.No.7278 of 2015
permanent absorption, but not otherwise. Thus, the respondents-workmen
are at liberty to adjudicate the issues in the manner known to law.
8. The learned counsel for the petitioner made a submission that as
per Form-1 of the Tamil Nadu Industrial Establishment Conferment of
Permanent Status to Workmen) Act, 1981, the register of a workman is to be
maintained by the employer concerned. Column 4 in Form-1 stipulates that
"whether permanent, temporary, casual, badli, or apprentice other than those
covered under the Apprentice Act, 1961".
9. A perusal of the Form reveals that the Contract Labourers are not
even included in the statutory form contemplated under the Conferment of
Permanent Status Act. When there is no provision for registration of
Contract Labourers under the provisions of the Act, the Inspector of Labour
is not empowered to pass an order under the provisions of the Act granting
permanent status to the workmen. Thus, the very exercise of power is
without jurisdiction and therefore, the order passed by the first respondent is
liable to be set aside.
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W.P.No.7278 of 2015
10. Accordingly, the impugned order passed by the first respondent in
proceedings dated 31.05.2011 is quashed the Writ Petition stands allowed.
No costs. Consequently, connected miscellaneous petition is closed.
12.08.2022
Index:Yes/No
Speaking order/Non-speaking order
hvk
To
1.The Superintending Engineer,
Namakkal Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Namakkal.
2.The Inspector of Labour,
Office of the Inspector of Labour,
Namakkal.
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W.P.No.7278 of 2015
S.M.SUBRAMANIAM, J.
hvk
W.P.No.7278 of 2015
12.08.2022
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