Madras High Court
Abi Showatech (India) Limited vs The Joint Director Of Industrial ... on 18 October, 2022
W.P.No.18587 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.18587 of 2016
and W.M.P.No.16292 of 2016
and W.M.P.No.273 of 2019
ABI Showatech (India) Limited,
(LAP Division)
Rep. by its Ocupier – S.Ravindran,
Pulivalam Village & Post,
Banavaram Via, Walaja Taluk,
Vellore District – 632 505. ...Petitioner
Vs.
1.The Joint Director of Industrial Safety and Health – I,
Tamil Nadu Housing Board Office Campus,
Sathuvachari,
Vellore – 600 009.
2.Five Men Committee,
Affiliated to CITU,
78/516, Pilliyar Kovil Street,
Puliyakannu, Ranipet Via,
Walaja Taluk,
Vellore District – 632 405.
3.R.Purushothaman
1/34
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W.P.No.18587 of 2016
4.A.Ramesh
5.V.Raju
6.D.Sundarrajan
7.A.Karthi
8.T.Ramesh
9.K.Saminathan
10.M.Murugan
11.V.Ravikumar
12.P.Suresh
13.S.Venkatesan
14.D.M.Dilli Babu
15.T.Velu
16.T.Udayakumar
17.S.Balamurugan ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to
issue a writ of Certiorarified Mandamus, calling for the records of the 1st
respondent in Case No.E/1343/2015 and quash its order dated 24.05.2016.
2/34
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For Petitioner : Mr.S.Ravichandran
Senior Counsel for
Mr.S.Bazeer Ahamed
For Respondents : No Appearance for R1
Mr.V.Ajay Ghouse for R3 to R17
ORDER
The writ petitions on hand has been instituted challenging the order dated
24.05.2016 passed by the Joint Director of Industrial Safety and Health under
the Provision of Conferment of Permanent Status Act.
2.The petitioner is ABI Showatech (India) Limited. The petitioner is
engaged in the manufacture of Aluminium & Gravity Die castings, Investment
casting and Sand castings. The petitioner has registered itself as a principal
employer under the provision of the Contract Labour (Regulation and Abolition)
Act. The petitioner has engaged contractors who have obtained license under
the provisions of Contract Labour (Regulation and Abolition) Act. These
contractors supply labours to the petitioner.
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3.The 1st respondent issued summons as an authority under the Tamil
Nadu Industrial Establishments (Conferment of Permanent Status to Workmen)
Act, 1981. The petitioner Company filed its preliminary objection on
17.03.2016 and an additional preliminary objection on 24.03.2016, contending
that the respondents workmen were never in the role of employment of the
petitioner Company and they were employees of the licensed contractors and
therefore, the petition under the Provision of Conferment of Permanent Status
Act is not maintainable. The respondents workmen raised industrial disputes
alleging non-employment. The petitioner Company prayed that the preliminary
objection regarding their maintainability of the petition under the Provision of
Conferment of Permanent Status Act is to be decided.
4.The 1st respondent was not inclined to take the maintainability as a
preliminary issue and thereafter, the petitioner filed W.P.No.13552 to 13554 of
2016 for a direction. This Court passed an order on 12.04.2016, directing the 1st
respondent to decide the preliminary issue as first among the other issues.
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Despite the directions issued, the 1st respondent has not decided the preliminary
issue as raised by the petitioner Company, but decided the issue along with
other issues and passed final orders on 17.05.2016. In other words, the 1 st
respondent has not decided the preliminary issue on merits. The learned Senior
Counsel appearing on behalf of the petitioner Company contended that the final
order was passed by the 1st respondent without any further notice to the
petitioner with reference to the preliminary objection petition filed by them.
Thus, the order is perverse and is to be set aside.
5. The learned Senior Counsel appearing on behalf of the petitioner
Company contended that the 1st respondent has no jurisdiction to decide the
issues in the absence of any adjudication and crystallization of the rights of the
workmen in the manner known to law. It is not as if the 1st respondent Company
can entertain a petition filed by the workmen and order for permanent status
without elaborate adjudication regarding the rights conferred on them. In the
present case, the petitioner Company has raised a preliminary objection stating
that the petition itself is not maintainable as the respondent workmen were not
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directly engaged by the petitioner Company. The petitioner have contended that
these workmen were engaged by the licensed contractors with whom the
petitioner Company executed contract for providing labourers for execution of
certain works. Therefore, it was the contention of the petitioner that the
respondent workmen are not directly engaged by the petitioner Company for the
purpose of entertaining an application under the Provision of Conferment of
Permanent Status Act.
6.The learned Senior Counsel to substantiate the principles relied on the
judgment of the Division Bench of this Court in batch of writ petitions in the
case of The Superintending Engineer, Erode Electricity Distribution Circle
vs. Inspector of Labour and another reported in 2022(2) LLN 750. The
relevant portions in the order are extracted hereunder:
“4. Learned counsel for the petitioner Tamil Nadu
Electricity Board, now Tamil Nadu Generation and Distribution
Corporation Limited, submits that the Labour Inspector has
passed the impugned orders exceeding his jurisdiction, while
adjudicating the issue in reference to the Act of 1970. A dispute in
reference to the Act of 1970 can be adjudicated only by the
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Industrial Adjudicator, which can be the Labour Court or the
Industrial Tribunal under the Industrial Disputes Act, 1947 [for
brevity, “the Act of 1947“]. However, ignoring the aforesaid, the
Labour Inspector has recorded finding on the engagement of the
respondent employees to be camouflage under the Act of 1970, so
as to issue a direction for permanency of the employees. It was
even ignoring the fact that the employees were not falling within
the definition of “workman” and otherwise the Act of 1981 cannot
override the Tamil Nadu Electricity Board Service Regulations
framed pursuant to Sections 79(c) and (k) of the Electricity
(Supply) Act, 1948 [for brevity, “the Act of 1948“]. In case of
conflict between the Act of 1981 and the statutory Regulations, the
Tamil Nadu Electricity Board Service Regulations framed under
the Act of 1948 would prevail.
5. It is further submitted that the Labour Inspector even
ignored the settlement arrived between the parties on 10.8.2007
under Section 12(3) of the Act of 1947, despite being upheld by the
Division Bench of this court by its judgment dated 24.10.2008. He
added that the directions given under the impugned orders are
going beyond the terms of the settlement and, thus, deserve to be
interfered.
6. Coming to the facts of this case, it is stated that the
petitioner Corporation has stopped engagement of contract labour
in the year 2008 itself, i.e., after the settlement, and whoever were
covered by the settlement had been extended the benefit and
thereupon the employment was only on the basis of daily wages.
The employees failed to produce any document to prove their
engagement and continuous working for 480 days in 24 calendar
months, yet based on surmises and conjectures, the impugned
orders were passed by the Labour Inspector. It is also by ignoring
the fact that a relationship between the employer and employee
was required to extend the benefit of permanency under the Act of
1981. The members of the association and the employees were not
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in service at the time of enquiry and passing the orders by the
Labour Inspector, yet a direction for grant of permanency has
been given from the date of completion of 480 days service.
7. It is even ignoring the fact that even if the members of the
association and employees were engaged by the petitioner
corporation, it was for temporary work like digging, poles
erection, stretching wires, transformer erection, cutting trees,
loading and unloading of electric goods etc. Those works cannot
be said to be of continuous nature, but without referring to the
nature of the work, the impugned orders for grant of permanency
have been passed. It is by shifting the burden of proof from
employees to employer, though burden of proof was on the
employees to prove their continuous service of 480 days in 24
calendar months to seek the benefit under Section 3 of the Act of
1981.
8. In view of the above, the prayer is to set aside the orders
of Labour Inspector and if the interference therein is not made,
then at least to modify the directions given therein to be in terms of
the settlement dated 10.8.2007, which was approved by the
Division Bench of this court. The prayer is, accordingly, to allow
the writ petitions in terms of the prayer aforesaid.
9. Learned counsel for the petitioner made reference of
several judgments to support his arguments and would be
considered at the time of discussion of the rival submission of the
parties.
10. The writ petition has been contested by learned counsel
appearing for the side opposite on the ground that none of the
issues raised by the petitioner corporation are made out on facts
as well as law. The Labour Inspector had rightly directed grant of
permanent status to the members of the petitioner association and
employees who approached him. It is by exercising his power
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under Sections 3 and 5 of the Act of 1981 read with Rule 6(4) of the
Tamil Nadu Industrial Establishments (Conferment of Permanent
Status to workmen) Rules, 1981. The Labour Inspector has
recorded finding on being satisfied that the employees worked for a
period of 480 days in 24 calendar months and thereby interference
with the order may not be made.
11. Section 3 of the Act of 1981 provides for grant of
permanent status to the employees who has completed 480 days of
continuous service in a period of 24 calendar months. The
obligation to grant benefit under the Act of 1981 was on the
petitioner corporation, but when they ignored, the Labour
Inspector exercising jurisdiction under the Act of 1981 passed
appropriate orders as all the employees were covered by the
definition of “worker” given under the Factories Act, 1948. The
finding has been recorded after proper consideration of the
documents and evidence produced by both the sides. Thus, it is
incorrect to state that the order passed by the Labour Inspector is
based on surmises and conjectures. The documents were
considered to arrive at the finding of working for continuous 480
days in a period of 24 calendar months. It was after framing the
issues. Thus, a contest on the factual issue has also been made
and, accordingly, referring to several judgments of this High
Court, the prayer was made to dismiss the writ petitions.
12. We have considered the rival submissions of the parties
and scanned the records carefully.
13. For convenience, we would be referring to the facts in
the case of W.P.No.4061 of 2013, which was referred by both the
parties during the course of arguments.
14. A perusal of the order passed by the Labour Inspector
reveals it to be in exercise of the powers conferred on him under
the Act of 1981. The Act of 1981 provides for grant of permanent
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status to those who have completed 480 days continuous service in
24 calendar months and for ready reference Section 3 of the Act of
1981 is quoted hereunder:
“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.
Explanation I.-- 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
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and in the course of his employment ; and
(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.
Explanation II. ? For the purposes of this
section, ?'law'? includes any award,
agreement, settlement, instrument or contract
of service whether made before or after the
commencement of this Act.”
15. A further reference to Section 5 of the Act of 1981 would
also be relevant, as the said provision stipulates the powers and
duties on the Labour Inspector. Section 5 of the Act of 1981 reads
as under:
“5. Power and duties of Inspectors. ? Subject to any
rules made by the Government in this behalf, the
Inspector may, within the local limits for which he is
appointed,--
(a) enter at all reasonable times and with such
assistants, if any, who are persons in the service of
the Government or of any local authority as he thinks
fit to take with him, any industrial establishment;
(b) make such examination of the industrial
establishment and of any registers, records and
notices and take on the spot or elsewhere the
evidence of such person as he may deem necessary,
for carrying out the purposes of this Act: and
(c) exercise such other powers as may be necessary
for carrying out the purpose of this Act.”
16. The provisions quoted above would be considered along
with Rule 6(4) of the Rules of 1981 for adjudication of the issues
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raised by both the parties.
“6. Maintenance of registers by employers.--
(1) to (3) ....
(4) Any employee who finds his name not entered in
the list referred to in sub-rule (2) or finds that the
entries have not been made correctly or finds that
though entries regarding his service have been made
correctly but he has not attested the entries in the
register of workmen in Form 1 may make a
representation to the Inspector concerned. The
Inspector after examining the representation or after
making enquiries may issue suitable directions to the
employer for the rectification of the register in Form 1
or for the issue of orders conferring permanent status
to the workman concerned.”
17. Learned counsel for the petitioner corporation submits
that the Act of 1981 could not have been applied in ignorance of
the Tamil Nadu Electricity Board Service Regulations framed
under the Electricity (Supply) Act of 1948. It was submitted that
the Regulations provides the mode of selection, the minimum
educational qualification and appointment only against the
sanctioned post. However, the Labour Inspector ignoring the
Regulations issued directions for grant of permanent status even in
favour of those who were not engaged by the petitioner
corporation, but by others not known to the petitioner corporation.
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
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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 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.
19. The other issue raised is as to whether the Labour
Inspector is having power to determine the controversy in
reference to the Act of 1970. It is submitted that the nature of
engagement and as to whether it was a genuine contract or
camouflage could not have been adjudicated by the Labour
Inspector. The adjudicatory authority does not exist with him
under the Act of 1981. It remains with the Labour Court or
Industrial Tribunal. A reference of the judgment of the Apex Court
in the case of Steel Authority of India Limited and others v.
National Union Waterfront Workers and others (2001) 7 SCC 1
has been given.
20. The argument aforesaid has been contested by learned
counsel for the respondents by referring to the judgment of this
court in the case of Superintending Engineer, Vellore Electricity
Distribution Circle, Vellore and others v. Inspector of Labour,
Perambalur and others, 2004 (3) LLN 598. It is submitted that a
claim to seek the benefit under the Act of 1981 cannot be sent for
adjudication under the Act of 1947. This High Court in the case
supra, held that the Labour Inspector has power to cause summary
enquiry for passing appropriate order and, accordingly, the
argument that adjudication can be made only under the Act of
1947 was not accepted. The issue is no more res integra in the
facts aforesaid.
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21. We have considered the submission aforesaid and for
appreciation of the arguments we have perused the order passed
by the Labour Inspector and the provisions of the Act of 1981. The
Act of 1981 was brought to extend certain benefits to the
employees who work for a continuous period of 480 days in 24
calendar months and for that purpose, the employer has to
maintain records. The power has been conferred on the Labour
Inspector to issue directions for maintenance of record and to
grant permanency. In view of the above, we find that the Labour
Inspector is empowered to issue order to grant permanency to the
employee. However, it cannot be after addressing the complicated
issue on facts and law. Whenever a serious dispute on facts and
law is raised, the adjudication thereupon is permissible only by the
Industrial Adjudicator, i.e., the Labour Court or Industrial
Tribunal. The reference of the judgment of the Apex Court in the
case of Steel Authority of India Limited and others, supra, would
be relevant for the aforesaid and paragraphs 125 and 126 are
quoted hereunder to show that the issues of the nature referred to
above can be determined only by the “industrial adjudicator”.
Referring to the word “industrial adjudicator“, it was defined to be
an Industrial tribunal or Labour Court. Paragraphs 125 and 126
are reproduced hereunder:
“125. The upshot of the above discussion is outlined
thus:
(1)(a) Before 28-1-1986, the determination of the
question whether the Central Government or the State
Government is the appropriate Government in
relation to an establishment, will depend, in view of
the definition of the expression ?appropriate
Government? as stood in the CLRA Act, on the answer
to a further question, is the industry under
consideration carried on by or under the authority of
the Central Government or does it pertain to any
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specified controlled industry, or the establishment of
any railway, cantonment board, major port, mine or
oilfield or the establishment of banking or insurance
company? If the answer is in the affirmative, the
Central Government will be the appropriate
Government; otherwise in relation to any other
establishment the Government of the State in which
the establishment was situated, would be the
appropriate Government;
(b) After the said date in view of the new definition of
that expression, the answer to the question referred to
above, has to be found in clause (a) of Section 2 of the
Industrial Disputes Act; if (i) the Central Government
company/undertaking concerned or any undertaking
concerned is included therein eo nomine, or (ii) any
industry is carried on (a) by or under the authority of
the Central Government, or (b) by a railway company;
or (c) by a specified controlled industry, then the
Central Government will be the appropriate
Government; otherwise in relation to any other
establishment, the Government of the State in which
that other establishment is situated, will be the
appropriate Government.
(2)(a) A notification under Section 10(1) of the CLRA
Act prohibiting employment of contract labour in any
process, operation or other work in any establishment
has to be issued by the appropriate Government:
(1) after consulting with the Central
Advisory Board or the State Advisory
Board, as the case may be, and
(2) having regard to
(i) conditions of work and benefits provided
for the contract labour in the establishment
in question, and
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(ii) other relevant factors including those
mentioned in sub-section (2) of Section 10;
(b) Inasmuch as the impugned notification issued by
the Central Government on 9-12-1976 does not satisfy
the aforesaid requirements of Section 10, it is quashed
but we do so prospectively i.e. from the date of this
judgment and subject to the clarification that on the
basis of this judgment no order passed or no action
taken giving effect to the said notification on or before
the date of this judgment, shall be called in question in
any tribunal or court including a High Court if it has
otherwise attained finality and/or it has been
implemented.
(3) Neither Section 10 of the CLRA Act nor any other
provision in the Act, whether expressly or by
necessary implication, provides for automatic
absorption of contract labour on issuing a notification
by the appropriate Government under sub-section (1)
of Section 10, prohibiting employment of contract
labour, in any process, operation or other work in any
establishment. Consequently the principal employer
cannot be required to order absorption of the contract
labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air
India case [(1997) 9 SCC 377 : 1997 SCC (L&S)
1344] prospectively and declare that any direction
issued by any industrial adjudicator/any court
including the High Court, for absorption of contract
labour following the judgment in Air India case
[(1997) 9 SCC 377 : 1997 SCC (L&S) 1344] shall
hold good and that the same shall not be set aside,
altered or modified on the basis of this judgment in
cases where such a direction has been given effect to
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and it has become final.
(5) On issuance of prohibition notification under
Section 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract labour in
regard to conditions of service, the industrial
adjudicator will have to consider the question whether
the contractor has been interposed either on the
ground of having undertaken to produce any given
result for the establishment or for supply of contract
labour for work of the establishment under a genuine
contract or is a mere ruse/camouflage to evade
compliance with various beneficial legislations so as
to deprive the workers of the benefit thereunder. If the
contract is found to be not genuine but a mere
camouflage, the so-called contract labour will have to
be treated as employees of the principal employer who
shall be directed to regularise the services of the
contract labour in the establishment concerned
subject to the conditions as may be specified by it for
that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and
prohibition notification under Section 10(1) of the
CLRA Act in respect of the establishment concerned
has been issued by the appropriate Government,
prohibiting employment of contract labour in any
process, operation or other work of any establishment
and where in such process, operation or other work of
the establishment the principal employer intends to
employ regular workmen, he shall give preference to
the erstwhile contract labour, if otherwise found
suitable and, if necessary, by relaxing the condition as
to maximum age appropriately, taking into
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consideration the age of the workers at the time of
their initial employment by the contractor and also
relaxing the condition as to academic qualifications
other than technical qualifications.
126. We have used the expression ?industrial
adjudicator? by design as determination of the
questions aforementioned requires enquiry into
disputed questions of facts which cannot conveniently
be made by High Courts in exercise of jurisdiction
under Article 226 of the Constitution. Therefore, in
such cases the appropriate authority to go into those
issues will be the Industrial Tribunal/Court whose
determination will be amenable to judicial review.”
22. In view of the above, while we are of the view that the
Labour Inspector has the power to issue appropriate order to
grant permanency to the workmen, it cannot be by adjudicating the
complicated questions of fact and law. A perusal of the Act of
1981 does not provide power in Labour Inspector of the nature
given to the Industrial Adjudicator, i.e., the Industrial Tribunal or
Labour Court, as complete framework with procedure for it has
been given under the Act of 1947. Certain provisions of the Civil
Procedure Code have been made applicable therein for proper
adjudication which does not exist under the Act of 1981.
23. If the facts of this case are taken into consideration, we
find that the Labour Inspector has recorded his finding in
reference to the Act of 1970 while adjudicating the issue. Such
powers have not been conferred on him, rather he can pass
appropriate order after summary enquiry. The view expressed by
the Single Judge of this court in the case of Superintending
Engineer, Vellore Electricity Distribution Circle, Vellore and
others, supra, is not in conflict with the view aforesaid, rather in
paragraph 35 of the said judgment, the difference between the
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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
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
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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 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.
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25. In view of the above, we can safely hold that the Labour
Inspector can exercise jurisdiction only in the nature of summary
enquiry, while a case involving complicated question of fact and
law to be left for its adjudication under the Act of 1947. The
Labour Inspector can exercise his power under the framework of
the Act of 1981. He has no power to adjudicate the issue in
reference to other statutes, which includes the Act of 1970.
26. Since we have analyzed the issue aforesaid, we would
like to refer to the impugned order of the Labour Inspector to find
out as to whether he has caused a summary enquiry or has
travelled beyond his jurisdiction to adjudicate the questions of fact
and law pertaining to the other statute.
27. A perusal of the order passed by the Labour Inspector in
the case on hand shows an adjudication of the issue in reference to
the Act of 1970 also, though it was not within his competence. He
is not having powers to comment on the nature of employment and
the policy adopted by the petitioner corporation. He was required
to simply see whether the workman has rendered continuous
service for 480 days in 24 calendar months. Thus, on the
aforesaid issue, the 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 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
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W.P.No.18587 of 2016
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 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.18587 of 2016
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 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.
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W.P.No.18587 of 2016
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.
There will be no order as to costs. Consequently, all
miscellaneous petitions are closed.”
7.Following the Division Bench judgment, this Court also passed an order
in W.P.No.7278 of 2015, dated 12.08.2022 in the case of The Superintending
Engineer, Namakkal Electricity Distribution Circle, Namakkal vs. Inspector
of Labour and another. The relevant paragraphs in the order are extracted
hereunder:
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
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W.P.No.18587 of 2016
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 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
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W.P.No.18587 of 2016
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.
8.The learned counsel appearing on behalf of the respondent workmen
objected the contentions raised on behalf of the petitioner by stating that the
submission made on behalf of the petitioner is beyond the scope of the relief
sought for in the writ petitions. The case on hand may be an appropriate one for
remanding the matter back to the 1st respondent for fresh adjudication. It is not
in dispute that the preliminary objection petition was rejected by the 1st
respondent and the said issue was tagged along with the other issues and final
order was passed. However, the matter requires re-adjudication before the 1st
respondent as the issues pertaining to the rights of the workmen are to be
reconsidered. It is contended that the respondents were engaged by the
petitioner Company for execution of certain works. When the respondents filed
a petition before the 1st respondent under the Provision of Conferment of
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W.P.No.18587 of 2016
Permanent Status Act stating that the workmen were engaged by the petitioner
Company, then an adjudication was done with reference to the provisions of the
Act and the 1st respondent found that the respondent workmen are entitled for
the relief under the Provision of Conferment of Permanent Status Act. The 1st
respondent formed an opinion that the respondent workmen had completed 480
days of service which is the requisite condition under the provisions of the Act
they are entitled for the benefit of permanent status under the Act. Thus, the writ
petition is liable to be rejected.
9.Perusal of the order impugned reveals that the preliminary objection
raised by the petitioner Company was rejected. The findings in the order
impugned further states that the petitioner Company has submitted the
preliminary objection that the respondent workmen were not directly employed
by the petitioner Company. However, the first respondent arrived a conclusion
that the respondent workmen had completed 480 days of service and their
services were under the control of the authorities of the petitioner Management
and therefore, they are entitled for the benefit under the Provision of Conferment
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W.P.No.18587 of 2016
of Permanent Status Act.
10.Pertinently, there was no adjudication regarding the disputed facts in
the order. Absolutely there is no findings with reference to the documents and
evidence so as to establish the services rendered by the respondent workmen
directly under the control of the petitioner Company. Importantly an order of
appointment or an appointment of the workmen by the employer is to be
established at the first instance. Only in the event of establishing an
appointment, question of consideration of termination if oral or in witting will
arise. In the present case, the direct employment of the respondent workmen by
the petitioner Company has not been established through an acceptable
evidence. There was no adjudication to that effect before the 1st respondent nor
any findings are made available. In the absence of any such documents or
finding, the Courts cannot form an opinion that the respondent workmen were
directly appointed by the petitioner Company or engaged by the licensed
contractor with whom the petitioner Company entered into contracts for
execution of work. The issues regarding appointment/engagement are vital for
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W.P.No.18587 of 2016
the purpose of ascertaining the rights of the workmen. In the absence of any
elaborate adjudication in this regard, one cannot simply form an opinion that the
workmen were directly employed by the Company or employer and such an
observation not based on any documents or evidence is unacceptable. In the
present case, perusal of the order impugned reveals that absolutely no
adjudication to that effect was made and further this Court has elaborately
considered the issue and power of the competent authorities under the Provision
of Conferment of Permanent Status Act that an adjudication is mandatory for
providing permanent status. In the absence of adjudication, mere completion of
480 days of service cannot be a ground for granting permanent status.
11.Question arises, the 480 days of services were rendered with which
authority or which employer engaged the workmen. Thus, it is a pre-requisite
adjudication which is required for ascertaining the rights of the workmen and in
the absence of any such adjudication, if the benefit of permanent status is
granted, then anybody appointed under the private contractor may claim the
benefit of permanent status, even against the State authorities or under the
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W.P.No.18587 of 2016
statutory authorities or under any other employers. This exactly is the reason
why, this Court has held that complete adjudication of disputed facts are
eminent for the purpose of granting the benefit under the Provision of
Conferment of Permanent Status Act. Once, such rights are ascertained, then
alone the question of considering the permanent status would arise but not
otherwise. In the present case, admittedly there was no adjudication with
reference to the appointment or engagement of the respondent workmen in the
petitioner Company directly and therefore, the order passed by the 1st
respondent granting the benefit of Conferment of Permanent Status Act is in
violation of the principles established.
12.The learned counsel appearing on behalf of the respondent workmen
made a submission that the matter is to be remanded back to the 1 st respondent
for re-adjudication of the issues. The learned Senior Counsel for the petitioner
raised an objection by stating that the remand would not serve any purpose,
since the 1st respondent has no jurisdiction to adjudicate the disputed issues. The
respondents have not established their right for permanent status and such an
adjudication must be made before the competent Labour Court by raising a
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W.P.No.18587 of 2016
dispute.
13.This Court is of the considered opinion that the remanding of cases is
an exception. Courts are not expected to remand the matters in a routine
manner. Remand is to be made if there is an absolute necessity and in the event
of routine remand, the same would cause prejudice to the interest of the parties.
A party cannot be made to adjudicate and re-adjudicate the same issues before
the same forum which will result in prolongation of litigation and therefore, the
Courts are expected to be cautious while remanding the matter and if there is
any absolute necessity for such remand, then alone, it is to be made and not
otherwise. Even if certain issues are not considered by the original Courts, the
Writ Court or the Appellate Court are empowered to consider those issues and
make a finding and give a quietus to the issues. Contrarily, the Courts cannot
adopt an easy approach of remanding the matter and such an approach cannot
be appreciated by this Court.
14.In the present case, the principles laid down in the cases cited supra is
to be applied and accordingly, the 1st respondent has no jurisdiction to
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W.P.No.18587 of 2016
adjudicate the disputed issues with reference to the rights of the employees and
such rights are to be crystallized by approaching the appropriate forum with
reference to the documents and evidence made available. Thus, the respondent
workmen are at liberty to approach the competent forum for the purpose of
adjudication and crystallization of their rights for the purpose of redressal of
their grievances in the manner known to law.
15.Accordingly, the order impugned passed by the 1st respondent in Case
No.E/1343/2015 dated 24.05.2016 is quashed and the writ petition stands
allowed. No Costs. Consequently, connected miscellaneous petitions are closed.
18.10.2022
Index : Yes (2/2)
Internet : Yes
Speaking order : Yes
ssr
To
1.The Joint Director of Industrial Safety and Health – I,
Tamil Nadu Housing Board Office Campus,
Sathuvachari,
Vellore – 600 009.
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W.P.No.18587 of 2016
S.M.SUBRAMANIAM, J.
ssr
2.Five Men Committee,
Affiliated to CITU,
78/516, Pilliyar Kovil Street,
Puliyakannu, Ranipet Via,
Walaja Taluk,
Vellore District – 632 405.
W.P.No.18587 of 2016
and W.M.P.No.16292 of 2016
and W.M.P.No.273 of 2019
18.10.2022
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W.P.No.18587 of 2016
(2/2)
https://www.mhc.tn.gov.in/judis
