Madras High Court
The General Manager ... vs K.Selvaraj on 16 August, 2023
W.P.(MD).No.14028 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).No.14028 of 2021
and WMP(MD)No.11016 of 2021
The General Manager (Administration),
TNSTC (KUM) Ltd., No.27 Railway Station,
New Road, Kumbakonam-612 001.
... Petitioner
Vs
1. K.Selvaraj
2. The General Manager (Administration),
TNSTC (KUM) Ltd., Nagapattinam Region,
140, Public Office Road, Velipalayam,
Nagapattinam-611001.
... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Wirt of of Certitorari calling for the entire record
pertaining to the impugned order, passed by the Assistant Labour
Commissioner, Thanjavur vide his proceedings in Na.Ka.No.A/13/2014, dated
06.08.2019 and quash the same as illegal.
For Petitioner : Mr.PM.Vishnuvarthanan
For Respondents : Mr.A.Rahul (R1)
No Appearance (R2)
https://www.mhc.tn.gov.in/judis
1/13
W.P.(MD).No.14028 of 2021
ORDER
The present writ petition has been filed seeking a direction to the
to quash the impugned order, passed by the Assistant Labour Commissioner,
Thanjavur vide his proceedings in Na.Ka.No.A/13/2014, dated 06.08.2019.
2.By consent of both parties, this Writ Petition is taken up for final
disposal at the stage of admission itself.
3.(i)The first respondent filed a petition before the Assistant
Labour Commissioner, Thanjavur under the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act, 1981,
(hereinafter refered to as the Act) stating that he was appointed on temporary
basis as a Driver on 02.05.2000 in the petitioner Transport Corporation.
(ii)The petitioner Transport Corporation also filed a counter and
contended that the said petition is not maintainable under law, for the reason
that the first respondent was already made permanent from 01.07.2006 as per
the settlement arrived between the Transport Corporation and the Employees
Union on 01.09.2005.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
(iii)The petitioner Corporation further contended that the grant of
relief under Section 3 of the Act and other benefits are maintainable and the
same will lead to wrong precedent and the scope of the Act will certainly
exceed, if the petition is entertained by the Assistant Labour Commissioner.
Further, it is contended that the respondent filed a petition with a delay of 11
years, from his alleged date of appointment and hence, it is clearly a time
barred claim.
(iv)Without adverting to the submission made by the petitioner
Corporation, the impugned order, dated 06.08.2019 came to be passed.
Challenging the same, this writ petition has been filed.
4.The issue that arises for consideration in this writ petition is no
longer res integra, since the same has already been decided by this Court in
W.P(MD) No.27374 of 2022 batch, dated 14.02.2023, wherein, this Court has
held as follows.
“4. The learned counsel appearing for the private
respondents would submit that though the private
respondents were regularised in the year 2006, i.e.,
after a lapse of five years from the date of their initial
appointment, subsequently, the Government Order was
issued for fixing the cut-off date for extending the
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
pensionary benefits for the persons who were appointed
before 01.04.2003, thereby depriving their rights to get
pensionary benefits. Hence, the private respondents
forced to file an application before the Labour Court
under Section 3 of the Act in order to avail the benefits
of the old pension scheme. After adjudication, the
Labour Court granted permanent status to the private
respondents on completion of 480 days from the date of
their initial appointment which cannot be interfered
with. He further submitted that as per the Act, there is
no time limit prescribed for making application.
Further, they filed an undertaking affidavit forgoing the
monetary benefits from the date of initial appointment to
till the date of filing application for a period of thirteen
years.
5. Paragraph 2 and 3 of the undertaking affidavit
filed by the private respondents reads as follows:
"2. I state that no limitation is prescribed under
the TN Act No 46 of 1981. Therefore, the delay or
latches cannot be a ground either to oppose or to
refuse relief under section 3(1). However, in order
to put a quietus to the matter and in order to avoid
any further appeal, I am willing get permanency as
per the order of the Assistant Commissioner of
Labour (Enforcement) in Thanjavur made in
Na.Ka.No.Aa. 3044/14, dated 12.07.2019 with effect
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
from 02.02.2003, the date next to date of completion
of 480 days notionally up to date of filling of
application before the authority, only with the
Employer Contribution of PF alone to be remitted
by the Writ Petitioner Transport Corporation to the
Administrator of Tamil Nadu State Transport
Corporation Employees' Pension Fund Trust
Chennai for the period from 02.02.2003 to
07.11.2014.
3. I do hereby state and declare that I will not
claim monetary benefits other than employer
contribution of PF for the period from 02.02.2003 to
07.11.2014, the date on which I filed application
before the 02.02.2003 to 07.11.2014."
6. Heard the learned counsel appearing for the
parties and perused the materials placed before this
Court.
7. The facts in the present case are not in dispute.
Admittedly, the private respondents entered into services
as NMRs' between 2000 and 2001 in the petitioner
Transport Corporation on various dates. It is also an
undisputed fact that the private respondents services
were regularised in the year 2006 by considering the
past services rendered by them. However, the New
Pension Rules were framed and the persons, who were
appointed on or after 01.04.2003, are not entitled for
old pension scheme. In order to avail such benefits, the
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
private respondents filed an application under Section 3
of the Act before the Labour Court. The Labour Court,
after elaborate consideration, granted permanency in
favour of the private respondents on completion of 480
days. Since there is no limitation prescribed for making
application, this Court cannot interfere with the order
impugned in these Writ Petitions. The impugned orders
were passed on the ground that there was a 12(3)
settlement in favour of the private respondents for
regularization, pursuant to which, their services
regularised in the year 2006, thereafter they filed
application under Section 3 of the Act before the Labour
Court for regularization.
8. When the very same issue came up for
consideration before the Principal Seat of this Court in
W.P.No.15461 of 2017, following the order of the
Hon'ble Supreme Court of India in the case of State of
Punjab vs. Jagjit Singh reported in (2017) 1 SCC 148,
this Court rejected the prayer sought for by the
Transport Corporation. For better appreciation,
paragraph Nos.4 and 5 reads as follows:
“4. It is vehemently contended by the Learned
Counsel for the Petitioner that when the Second
Respondent had accepted the benefit of confirmation
in service in terms of settlement under Section 12(3)
of the I.D. Act without any demur, he is estopped
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
from invoking the provisions of the Permanent Status
Act. It must, at once, be pointed out here that the
Hon'ble Supreme Court of India in Oswal Agro
Furane Ltd., -vs- Oswal Agro Furane Workers
Union [(2005) 3 SCC 224] has reiterated the legal
position that a settlement cannot be arrived between
the employer and its employees under the provisions
of the I.D. Act, without satisfying the requirements of
law or in contravention of legal provisions. When it
is not in dispute that the Second Respondent was
employed from 07.04.1998 onwards following the
prescribed procedure of recruitment through
employment exchange, he is entitled to the
constitutional guarantee of equality of opportunity
and treatment in public employment under Articles
14 and 16 of the Constitution. As such, the Petitioner
could not unilaterally treat as if the Second
Respondent had worked only from 04.08.1998
merely because the daily paid appointment was
given from that date. The conferment of permanent
status on the Second Respondent with effect from
27.11.1999, when he completed 480 days of
'continuous service' in a period of 24 calender
months in the establishment of the Petitioner, is more
beneficial than the confirmation of service granted
by the Petitioner to him with effect from 24.08.2007.
In this context, it would be beneficial to refer to the
observations made by the Hon'ble Supreme Court of
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
India in State of Punjab -vs- Jagjit Singh [(2017) 1
SCC 148] that squarely applies to the fact situation
that has arisen in the Writ Petition, as extracted
below:- “58. In our considered view, it is fallacious
to determine artificial parameters to deny fruits of
labour. An employee engaged for the same work
cannot be paid less than another who performs the
same duties and responsibilities. Certainly not, in a
welfare State. Such an action besides being
demeaning, strikes at the very foundation of human
dignity. Anyone, who is compelled (emphasis added)
to work at a lesser wage does not do so voluntarily.
He does so to provide food and shelter to his family,
at the cost of his self-respect and dignity, at the cost
of his selfworth, and at the cost of his integrity. For
he knows that his dependants would suffer
immensely, if he does not accept the lesser wage.
Any act of paying less wages as compared to others
similarly situate constitutes an act of exploitative
enslavement, emerging out of a domineering
position. Undoubtedly, the action is oppressive,
suppressive and coercive, as it compels involuntary
subjugation.” Having due regard to the aforesaid
fact situation borne out from the record, the non-
obstante clause, viz., 'notwithstanding anything
contained in any law for the time being in force' in
Section 3 of the Permanent Status Act, coupled with
Explanation II thereto that for purpose of that legal
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
provision, 'law' includes any award, agreement,
settlement, instrument or contract of service whether
made before or after the commencement of the
Permanent Status Act, it is not possible to
countenance the submissions made on behalf of the
Petitioner so as to deprive the concomitant benefits
that the Second Respondent is entitled in law. This
view expressed is fortified by the decisions of the
Division Benches of this Court in Managing
Director, Tamil Nadu State Transport Corporation
Ltd., Coimbatore Division -vs- Shanmugam
(Judgment dated 30.09.2019 in W.A. Nos. 2871 and
2872 of 2018) and Management, Tamil Nadu State
Transport Corporation (Madurai) Ltd., -vs- Labour
Inspector (Judgment dated 28.11.2019 in W.A. (MD)
No. 768 of 2015) in respect of the certain other
employees of the Petitioner, who are similarly
placed to the Second Respondent in this case.
5. The next submission of the Learned Counsel
for the Petitioner is that there has been inordinate
delay and unexplained laches on the part of the
Second Respondent in approaching the First
Respondent for conferring the benefit under the
Permanent Status Act, which factor disentitles the
Second Respondent for any relief under the
Permanent Status Act. In the first place, when no
period of limitation has been prescribed under the
Permanent Status Act for making an application for
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
conferment of permanent status, there is no scope for
entertaining such contention. Moreover, the Division
Bench of this Court in R.Lakshmi -vs- Chief Engineer
(Personnel), Tamil Nadu Electricity Board [(2012) 6
MLJ 480] has held that a workman, who had
completed 480 days of continuous service in a period
of 24 calender months, would become automatically
a permanent employee under the employer, even if
the employer had not conferred him with the
permanent status, or even if no direction was issued
by the competent authority in that regard under the
Permanent Status Act or the Rules framed
thereunder. As such, there is no merit in this
objection raised so as to deserve any consideration.”
5.The private respondent also filed an undertaking affidavit, dated
14.08.2023, which is extracted hereunder:
2) I state that no limitation is prescribed under the TN Act
No 46 of 1981. Therefore, the delay or latches cannot be a
ground either to oppose or to refuse relief under section
3(1). However, in order to put a quietus to the matter and in
order to avoid any further appeal, I am willing get
permanency as per the order of the Assistant Commissioner
of Labour (Enforcement) in Thanjavur made in na. Ka.
No.Aa. 13/2014 dated 06.08.2019 with effect from
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
29.05.2002, the date next to date of completion of 480 days
notionally up to date of filling of application before the
authority, only with the Employer Contribution of PF alone
to be remitted by the Writ Petitioner Transport Corporation
to The Administrator of Tamil Nadu State Transport
Corporation Employees Pension Fund Trust Chennai for the
period from 29.05.2002 to 04.01.2014.
3) I do hereby state and declare that I will not claim
monetary benefits other than employer contribution of PF
for the period from 29.05.2002 to 04.01.2014, the date on
which I filed application before the Permanent Status
Authority.
6.In view of the above facts, this Writ Petition is disposed of and
the impugned order is modified to the effect that the private respondent is not
entitled to monetary benefits except employer contribution from the date of
initial appointment till the date of filing application under Section 3 of the Act.
No costs. Consequently, connected Miscellaneous Petition is closed.
16.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
PNM
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
To
The General Manager (Administration),
TNSTC (KUM) Ltd., Nagapattinam Region,
140, Public Office Road, Velipalayam,
Nagapattinam-611001.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.14028 of 2021
L.VICTORIA GOWRI, J.
PNM
ORDER IN
W.P.(MD).No.14028 of 2021
and WMP(MD)No.11016 of 2021
16.08.2023
https://www.mhc.tn.gov.in/judis
