Madras High Court
The Regional Manager vs The Appellate Authority/ on 17 August, 2023
W.P.(MD) No.9411 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.08.2023
CORAM:
THE HONOURABLE Mr.JUSTICE BATTU DEVANAND
W.P.(MD) No.9411 of 2019
and
W.M.P.(MD) No.7422 of 2019
The Regional Manager,
Tamil Nadu Civil Supply Corporation,
Regional Office, Collectorate Campus,
Ramnad Post,
Ramnad District. .. Petitioner
Vs.
1.The Appellate Authority/
Additional Commissioner of Labour,
Madurai.
2.The Controlling Authority/
Assistant Commissioner of Labour,
Madurai.
3.R.Aathikesavan .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Certiorari calling for the records relating
to the impugned order of the 1st respondent in P.G.Appeal No.16 of 2018
dated 23.10.2018 wherein dismissed the appeal and confirming the order
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W.P.(MD) No.9411 of 2019
of the 2nd respondent in P.G.No.207 of 2016 dated 20.12.2017 and in
order to execute the order the 2nd respondent subsequently passed the
order in proceedings No.A6/6328/2018 dated 29.03.2019 quash the
same.
For Petitioner : Mr.R.Saravanan
For RR1 & 2 : Mr.P.Subbaraj
Special Government Pleader
For R3 : Mr.S.Arunachalam
ORDER
This writ petition is filed to quash the order of the 1 st respondent in
P.G.Appeal No.16 of 2018, dated 23.10.2018 confirming the order of the
2nd respondent in P.G.No.207 of 2016, dated 20.12.2017.
2. The case of the petitioner is that the third respondent/employee
was appointed as a temporary employee on 01.02.1979 and his scale of
pay was fixed immediately after appointment. On attaining the age of
superannuation, the gratuity amount was paid to him by calculating the
service rendered by him. However, the employee filed a petition before
the 2nd respondent seeking gratuity with a condone delay petition.
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However, without deciding the condone delay petition, the original
authority allowed the petition along with the main claim and granted the
relief as sought for by him and the same was also confirmed by the
appellate authority. Challenging both the orders, the present petition has
been filed.
3. The learned counsel for the petitioner would submit that the 3rd
respondent was only engaged as a temporary seasonal employee on
consolidated pay in the Tamil Nadu Civil Supplies Corporation. He
would further submit that his employment is seasonal one and that there
is no continuity of service from 1979. Subsequently, the employee was
appointed in time scale of pay in different cadres and he has retired on
attaining the age of superannuation. Since he has not completed 240 days
in a calender year, he is not entitled for gratuity and the gratuity petition
filed by him is not maintainable.
4. His further contention is that the original authority as well as the
appellate authority passed the orders mainly on the ground that as per
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W.P.(MD) No.9411 of 2019
Section 2A of the Industrial Disputes Act, where an employee employed
in a seasonal establishment is not in continuous service within the
meaning of clause (1) for any period of one year or six months, he shall
be deemed to be in continuous service under the employer for such
period if he has actually worked for not less than 75% of the number of
days on which the establishment was in operation during such period. In
the present case, when the employee rendered service only for the
seasonal period, the original and appellate authority concurrently held
that the employee is entitled for gratuity and allowed his case, which is
non-est in the eye of law and accordingly, prays for allowing the writ
petition.
5. Per contra, the learned counsel for the 3rd respondent/employee
would submit that the issue arises in the writ petition is no longer res
integra, which has been decided by this Court, in W.P.(MD) Nos.16007
to 16011 of 2013 and this Court dismissed the writ petitions on
30.09.2013 and held in favour of the employees, which went on appeal
and the order of the learned single Judge was confirmed by this Court in
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W.P.(MD) No.9411 of 2019
W.A.(MD) Nos.353 to 357 of 2014 vide judgment dated 12.03.2018. In
view of the law laid down by the Division Bench of this Court, this writ
petition deserves to be dismissed.
6. Heard the learned counsel for the petitioner, learned Special
Government Pleader for the 1st and 2nd respondents and the learned
counsel for the 3rd respondent/employee.
7. The facts in the present case with regard to the appointment of
the employee/private respondent is not in dispute. The private respondent
made a claim petition before the original authority under the Payment of
Gratuity Act for payment of gratuity for the entire period he worked
under the petitioner management. The original authority as well as the
appellate authority concurrently held in favour of the employee and the
issue raised in this writ petition is no longer res integra, which came up
for consideration before this Court in the writ petitions (supra) and the
relevant portion of the order are as follows:
“9.The second proviso to Sub-Section (2) of
Section 4 of the Payment of Gratuity Act, 1972, upon
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W.P.(MD) No.9411 of 2019
which much reliance has been placed by the
petitioner, speaks of establishment which is seasonal
in character. It deals with an employee who is
working in a seasonal establishment. Thus, it is
crystal clear that the establishment itself should be a
seasonal one. In the said Act, however, the term
“establishment” has not been defined. Taking the
meaning of the term “establishment” from other
labour legislations, I have to state that the entire
Tamil Nadu Civil Supplies Corporation is an
establishment. In other words, the term “employer”
refers to the Tamil Nadu Civil Supplies Corporation,
and therefore, it is an establishment. It is not as
though the employees were employed by the Direct
Purchase Centres. They are all Centres run by the
Tamil Nadu Civil Supplies Corporation, and the
employees were employed not by Direct Purchase
Centres but by the Tamil Nadu Civil Supplies
Corporation itself. Therefore, the Tamil Nadu Civil
Supplies Corporation, as a single unit, is an
establishment which undoubtedly, is not a seasonal
establishment. The proviso to Sub-Section (2) of
Section 4 does not refer to seasonal employment of an
employee. A plain reading of the said proviso goes to
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W.P.(MD) No.9411 of 2019
show that it refers only to seasonal establishment.
Therefore, it is not the character of employee but it is
the character of the establishment itself, which is
relevant. Here, in this case, the character of the
establishment is not seasonal, and therefore, the said
proviso is not applicable to Tamil Nadu Civil Supplies
Corporation.
10.The learned counsel for the petitioner would
contend that apart from the above clause, viz.
seasonal establishment, there is also another
requirement in the said Proviso which states that
“and who is not so employed throughout the year”.
Referring to this, the learned counsel for the
petitioner would contend that employees were not
admittedly employed throughout the year and thus
according to the learned counsel, the employees
would fall within this phrase and thus the proviso is
applicable. This argument, though attractive, does
not persuade me for many reasons.
11.First of all, if one carefully looks into the
Proviso, it is crystal clear that it is not stated as
though an employee who is employed in a seasonal
establishment OR who is not so employed throughout
the year. The word used between the two clauses is a
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W.P.(MD) No.9411 of 2019
conjunction, viz. “and”. The word used is not “or”
which is disjunctive in nature. If the word “or” has
been used, then, irrespective of the fact whether the
establishment is seasonal or permanent, if the
employee has not worked throughout the year, he will
be entitled only for gratuity at the rate of 7 days for
each season as the Proviso would be applicable.
Obviously, the Legislature did not use the disjunction
“or”. Instead, the Legislature has consciously used
the word “and”. Thus it is the intention of the
Legislature to bring those employees who are the
employees of an establishment which is seasonal and
further those employees who have not worked
throughout the year, within the ambit of this Proviso.
Here in this case, the establishment cannot be stated
to be seasonal, even though it may be the case that
employees did not work throughout the year. In such
view of the matter, I hold that the second Proviso to
Sub-Section (2) of Section 4 of the Act, is not at all
applicable to the employees of Tamil Nadu Civil
Supplies Corporation, who have worked in the Direct
Purchase Centres.
12.But the learned counsel for the petitioner-
Corporation would make much reliance on the
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W.P.(MD) No.9411 of 2019
judgment of the Division Bench of this Court in Tamil
Nadu Civil Supplies Corporation Workers Union v.
Tamil Nadu Civil Supplies Corporation, cited supra.
That was a case where the Trade Union filed the writ
petition seeking the relief of permanent status for the
employees of the Tamil Nadu Civil Supplies
Corporation as per the provisions of the Tamil Nadu
Industrial Establishment (Conferment of Permanent
Status to Workmen) Act, 1981. The Division Bench
referred to the relevant provision of the said Act, viz.
Sub-Section (3) of Section 1, which reads as follows:
“It applies to every Industrial Establishment (not
being an establishment of a seasonal character or in
which work is performed only intermittently) in which
not less than 50 workmen were employed on any day
of the preceding twelve months. If any question arises
whether an Industrial establishment is of a seasonal
character or whether work is performed therein only
intermittently the decision of the Government thereon
shall be final. (Emphasis supplied) Provided that the
Government may, by notification, apply the
provisions of this Act to any Industrial Establishment
employing such number of workmen less than fifty as
may be specified in the Notification.”
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13.Referring to the said provision, the Division
Bench took the view that the Bill Clerks, Helpers and
Watchmen who are employees only on seasonal basis,
are not entitled for the benefit of the said Act. In this
context, we should note that the word used is not
conjunctive “and”, instead the word used is
disjunctive “or”. So far as this Act is concerned, if
the establishment is seasonal in character, any
employee who is employed in the said establishment
is not entitled for the benefit of the Act. Though the
establishment may not be a seasonal establishment,
still if the work is performed intermittently, in such a
case also, the employee is not entitled for any
permanent status. That is the reason why the
Legislature consciously used the word “or” between
two phrases. As I have already pointed out, in the
Payment of Gratuity Act, 1972, the word used is not
“or”, but instead, “and” is used. Therefore, I hold
that the said decision cannot be a precedent for
deciding the issue involved in these writ petitions, as
the two provisions referred to above are drastically
different.
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W.P.(MD) No.9411 of 2019
14.In view of all the above, I hold that the
respondents 1 and 2 were right in holding that
employees are entitled for gratuity at the rate of 15%
based on the rate of wages last drawn by the
employee concerned as per the second Proviso to
Sub-Section (2) of Section 4 of the Payment of
Gratuity Act, 1972. I also hold that the second
Proviso to Sub-Section (2) of Section 4 of the
Payment of Gratuity Act, 1972 is not at all applicable
to the employees of Tamil Nadu Civil Supplies
Corporation who have worked in Direct Purchase
Centres.”
8. The said order was challenged before this Court in W.A.(MD)
Nos.353 to 357 of 2014, wherein, it was held as follows:
“3.The legal issue involved in these writ petitions is
squarely covered by the decision of this Court in W.P.No.
4371 of 1998, dated 30.07.2008, which was confirmed by the
Hon'ble Division Bench in W.A.No. 1282 of 2008, dated
19.07.2010. The operative portion of the order, dated
30.07.2008, passed in W.P.No.4371 of 1998, reads as
follows:
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“15.But in the present case, all the
workers covered by the impugned order were all
Assistant Quality Inspectors, Watchmen, Packer,
Helper, Bill Clerk, etc. The procurement, storage
and distribution are all on going process and if
they are really seasonal, there is no question of
the workmen being covered by the settlement or
the Award as referred to by the Management. On
the contrary, in the present case, even as per the
admission of the learned counsel for the
Management, who has given a tabular statement
showing that the number of the workmen taken
against the regular vacancy was 70.
16.Further, in the letter dated 02.4.1991
sent by the Chairman cum Managing Director of
the petitioner Management to the Joint
Commissioner of Labour over which a reference
was made in the impugned order. The Managing
Director had written in page 3 as follows:
"Regarding payment of retaining
allowance to the D.P.C. staff, this cannot be
compared to the seasonal industries like sugar
industry. This is not a seasonal industry and the
Government have not declared it so. We need not
retain them when there is no procurement and as
such no retaining allowance need be paid."
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Even as per the provisions of Permanent
Status Act, if the petitioner wants, they can move
the Government to declare the DPC as seasonal
and they have not done so.
17.The argument that the settlement and
the Award is binding cannot be accepted
because of the non-obstante clause found in
Section 3(1) of the I.D. Act. Originally, it did not
cover a Settlement or an Award. Therefore, if
there was any settlement or Award between the
employer and the workmen, then the provisions
of Tamil Nadu Act 46 of 1981 will have no
application. This was noticed by a Division
Bench of this Court in its judgment in Metal
Powder Co. Ltd., Thirumangalam and another v.
The State of Tamil Nadu and another [1985 (2)
L.L.J. 376] and after referring to the similar
provisions in other Labour enactments in
paragraph 27, it was observed as follows:
Para 27: ".... We are bound to take notice
of the legislative practice that where the
intention of the legislature is that a law is to
have effect notwithstanding any award,
agreement or contract of service, such an
intention is expressed in clear and unambiguous
words. Consequently, in the absence of reference
to an award, an agreement or a contract of
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W.P.(MD) No.9411 of 2019
service in S.3(1) and restricting the operation of
the non-obstante clause in S.3(1) only to
"anything contained in any law for the time
being in force", we must accept the contention of
the learned counsel for the petitioner that S.3
will not supersede a settlement between the
employer and the employees in so far as the
subject matter of the settlement is conferment of
permanent status to the workmen...."
Taking note of the above judgment, the State
Legislature amended Section 3(1) of the Tamil
Nadu Act 46 of 1981 and the words 'settlement'
and 'Award' have been included in the
Explanation to Section 3(1) of the Act.
18.In fact, when the amended provisions
were challenged before the Supreme Court, the
Act was held to be intravires of the Constitution
by the Supreme Court in State of Tamil Nadu
and others v. Nellai Cotton Mills Ltd. and others
[1990 (2) SCC 518]. Therefore, the objections
based on the Award and settlement by the
learned counsel for the Management must
necessarily fail.
19.Thereafter, Mr. Ajay Khose, learned
counsel appearing for the workmen brought to
the notice of this Court a judgment of this Court
in Tamil Nadu Civil Supplies Corporation
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Modern Rice Mill Engineering Section employes
Union v. The Tamil Nadu Civil Supplies
Corporation, rep. by its Managing Director
[1998 Writ L.R. 514] relating to the very same
Corporation. In that case, the petitioner
Corporation gave a circular regularising the
casual workers working in the Modern Rice Mill
and gave their own date of regularisation. P.D.
Dinakaran, J., in paragraphs 11 and 15 of the
said judgment, held as follows:
Para 11: "Section 3(1), being a non-
obstante provision, it prevails over any law for
the time being in force which includes any
service rules, Government Orders or
government instructions. Therefore, want of
sanctioned posts as required under General
service rules cannot take away the rights
conferred under Section 3(1) of the Act.
Similarly, Government Orders which require
that the appointments should be made only
through Employment Exchange also cannot be a
ground to refuse the right provided under
section 3(1) of the to the petitioners if they
comply the requirements prescribed under
Section 3(1). Therefore, it is not open for the
respondent to take shelter under any other law
in force much less any Government Orders,
Government Instructions to deny the benefits
conferred under Section 3(1) of the Act, to the
petitioners, if they satisfy the conditions
prescribed therein, irrespective of the
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availability of sanctioned posts or sponsorship
from Employment Exchange.”
Para 15: "Therefore, the respondents are
directed to modify the proceedings dated
24.2.1989 to confer the permanent status to
individual workmen from the day on which they
satisfy the condition namely completing the
continuous service for period of 480 days in a
period of 24 Calendar months in the respondent
establishment. The respondent shall pass
appropriate orders as directed above within 6
weeks from the date of receipt of a copy of this
order."
20.In the light of the above, the
contentions raised by the petitioner
Management will have to be necessarily
rejected. In fact, the petitioner Management
themselves have regularised the workmen on a
posterior date. In the light of the above
judgments of this Court and the Supreme Court,
such action cannot be countenanced by this
Court. The impugned order of the first
respondent will have to be necessarily upheld.
Accordingly, the writ petition will stand
dismissed. However, there will be no order as to
costs”.
4.In the light of the above, the issue is squarely
covered by the above referred decisions and
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W.P.(MD) No.9411 of 2019
therefore, the writ appeals fail and accordingly, the
same are dismissed, confirming the common order,
dated 30.09.2013, made in W.P(MD)Nos.16007 to
16011 of 2013. No costs. Consequently, connected
Miscellaneous Petitions are dismissed.”
9. In view of the categorical pronouncement of the learned single
Judge as well as confirmed by the learned Division Bench, the relief
sought for in this writ petition cannot be granted.
10.1. Accordingly, this writ petition is dismissed.
10.2. No costs.
10.3. Consequently connected miscellaneous petition is closed.
17.08.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
abr
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W.P.(MD) No.9411 of 2019
BATTU DEVANAND, J.
abr
To
1.The Appellate Authority/
Additional Commissioner of Labour,
Madurai.
2.The Controlling Authority/
Assistant Commissioner of Labour,
Madurai.
W.P.(MD) No.9411 of 2019
Dated : 17.08.2023
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