Madras High Court
The Superintending Engineer vs The Inspector Of Labour on 10 August, 2023
W.P.Nos. 33553, 33554 of 2013
and 2719 to 2723 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P. Nos. 33553, 33554 of 2013 and 2719 to 2723 of 2014
and
M.P.Nos. 2 of 2014 (7 Nos)
W.P.No.33553 of 2013
The Superintending Engineer,
Thiruvannamalai Electricity Distribution Circle,
TANGEDCO., Vengikal,
Tiruvannamalai – 606 604. ... Petitioner
Vs
1. The Inspector of Labour,
Thiruvannamali.
2. R.Sekar
3. S.Munusamy
4. R.Vijayan
5. P.Thanigai Girivasan
6. N.Manogaran
7. S.Rathinavelu
8. S.K.Kannan
9. S.Chandrasekaran
10. M.Sivagnam
11. K.Srinivasan
12. M.Sivaraj
13. R.Sivakumar
14. K.Boobalan
15. S.Paneerselvam
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1/17
W.P.Nos. 33553, 33554 of 2013
and 2719 to 2723 of 2014
16. S.Balaji
17. K.Elumalai
18. P.Elumalai
19. C.Pachaiappan
20. G.Ramajeyam
21. M.Ravichandran
22. V.Jaisankar
23. G.Pachaiappan
24. A.Gajendiran
25. G.Gnanasekaran
26. N.Venkatesan
27. G.Ramajeyam
28. K.Annamalai
29. G.Karthikeyan
30. K.Raman
31. D.Tamilselvan
32. A.Gopi
33. P.Ramasamy .... Respondents
Prayer in W.P.No.33553 of 2013 : Writ Petition is filed under Article
226 of the Constitution of India praying to issue a Writ of Mandamus
calling for the records relating to the award passed by the first respondent
made in Pa.Mu.No.2602 of 2008 dated 19.10.2009, quash the same.
In W.P.No.33553 of 2013
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R1, R2, R4, R6 to
R26 & R28 to R33 : No appearance
For R27 : Mr.V.Ajoy Khose
For R3, R5 & R30 : Mr.S.Elamurugan
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W.P.Nos. 33553, 33554 of 2013
and 2719 to 2723 of 2014
In W.P.No. 33554 of 2013
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R1 to R5, R7 to R12,
R15, R16, R18 to R33 : No appearance
For R6, R13, R14 & R17 : Mr.S.N.Ravichandran
In W.P.No. 2719 of 2014
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R1 to R8, R10 to R52 : No appearance
For R9 : Mr.S.N.Ravichandran
In W.P.No. 2720 of 2014
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R2, R3, R9 & R10 : No appearance
For R1, R4 to R8, R11 to R15
R17 to R18 : No appearance
For R16 : Mr.S.N.Ravichandran
In W.P.No. 2721 of 2014
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R1 to R20 : No appearance
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W.P.Nos. 33553, 33554 of 2013
and 2719 to 2723 of 2014
In W.P.No. 2722 of 2014
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R1 to R11 : No appearance
In W.P.No. 2723 of 2014
For Petitioner : Mr.Anand Gopalan
For M/s.T.S.Gopalan & Co
For R1 to R5, R7, R9 to R12,
R14, R15, R18 to R20 : No appearance
For R6, R8, R13, R17 & R21 : Mr.S.Balamurugan
For R16 : Mr.S.N.Ravichandran
COMMON 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
these Writ Petitions.
2. The petitioner states he was working as Superintending
Engineer in the Tiruvannamalai Electricity Distribution Circle,
TANGEDCO, Tiruvannamalai District. He states that the respondents,
who were the applicants before the Inspector of Labour, Tiruvannamalai,
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filed an application on the basis that they were working as Contract
Labourers under the control of the Superintending Engineer,
Tiruvannamalai Electricity Distribution Circle and they have put in
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 who 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 are untenable.
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4. The Hon'ble Division Bench of this Court elaborately
considered the same issue in a batch of Writ Petitions filed by The
Superintending 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
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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 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
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W.P.Nos. 33553, 33554 of 2013
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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 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]
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W.P.Nos. 33553, 33554 of 2013
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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.
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
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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 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
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W.P.Nos. 33553, 33554 of 2013
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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
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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
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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.Nos. 33553, 33554 of 2013
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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."
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
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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 empowered to pass an order under the
provisions of the Act granting permanent status to the workmen. Thus,
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the very exercise of power is without jurisdiction and therefore, the order
passed by the first respondent is liable to be set aside.
10. Accordingly, the impugned order passed by the first
respondent is hereby quashed. Accordingly, these Writ Petitions stand
allowed. Consequently, connected miscellaneous petitions are closed.
There shall be no order as to costs.
10.08.2023
Lpp
Index:Yes/No
Internet:Yes/No
To
The Inspector of Labour,
Thiruvannamali.
G.K.ILANTHIRAIYAN,J.
https://www.mhc.tn.gov.in/judis
W.P.Nos. 33553, 33554 of 2013
and 2719 to 2723 of 2014
Lpp
W.P. Nos. 33553, 33554 of 2013
and 2719 to 2723 of 2014
and
M.P.Nos. 2 of 2014 (7 Nos)
10.08.2023
https://www.mhc.tn.gov.in/judis
