Madras High Court
The Management vs The Inspector Of Labour on 25 August, 2023
Writ Appeal No.2298 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
Writ Appeal No.2298 of 2023
and CMP.No.19712 of 2023
The Management,
Rep. by its Regional Manager,
Tamil Nadu Civil Supplies Corporation,
Formerly Vellore Region now Thirupathur Region. .. Appellant
Vs.
1. The Inspector of Labour,
Thiruvannamalai,
Authority Constituted as under
Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to workmen) Act, 1981
2. R.Ranganathan
3. T.Karunakaran
.. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 31.01.2023 in WP.No.37367 of 2016 passed by the Single
Judge of this Court.
Page No.1/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
For Appellant : Mr.R.Neelakandan,
Additional Advocate General,
assisted by Mr.C.Selvaraj
For Respondents : Mr.P.Ganesan, G.A., for R1
JUDGMENT
(The Judgment of the Court was delivered by S.VAIDYANATHAN, J)
The two employees/respondents 2 and 3 herein approached the
authority under the Tamil Nadu Industrial Establishment (conferment of
Permanent Status Workmen) Act, 1981, seeking for permanent status on the
ground that they have been engaged as Bunk Operators in the Kerosene
Bunk at Tirupattur, which has been run by the appellant Management and
they have completed 480 days of continuous service in 24 calendar months.
2. The employees though have not produced any document before the
authority, filed an affidavit and pleaded that they have completed 480 days
of continuous service in 24 calendar months and they are entitled to
permanent status. The authority vide order, dated 31.01.2023, which is
impugned in the Writ Petition, passed an order confirming the permanent
status of the workmen in terms of Section 3 (1) of 1981 Act with effect from
23.07.2010.
Page No.2/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
3. The learned Single Judge has confirmed the order of the authority
on the ground that the authority has rendered a finding on fact that the
employees had not worked intermittently.
4. It is the contention of the learned Additional Advocate General
appearing for the appellant that the Apex Court in a decision in Manager,
R.B.I., Bangalore vs. S.Mani and others reported in 2005 5 SCC 100 has
categorically held that the initial burden is on the employee to prove that he
has worked for the required number of days to claim benefits.
5. The learned Additional Advocate General also relied upon the
order of the learned Single Judge in the case of The Managing Director,
Tamil Nadu Civil Supplies Corporation Ltd., vs. R.Kangadurga and
others, (WP.No.10445 of 2017, dated 16.09.2019) and submitted that based
on the judgment of the Supreme Court in Secretary, State of Karnataka
and others vs. Umadevi and others, the order of the authority was set aside
and the Writ Petition was allowed.
Page No.3/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
6. Firstly, on facts, the Management has not disputed the averments of
the employees that they have completed 480 days of continuous service in a
period of 24 calendar months. That apart, paragraphs 3 to 5 of the counter,
which are extracted below, the employer has categorically admitted about
the employment of the workmen and not denied that the employees have not
completed 480 days of continuous service in 24 calendar month.
"3. This respondent submits that it is false and baseless to state
that the petitioner was already employed as a pump operator
and in the kerosene Bunk run by this respondent at Tirupattur
from April 2009 and the petitioner is put to strict proof of each
and every one of them. This respondent submits that the
petitioner was working a coolly worker on daily wages basis
without any future benefits and job confirmation and he has
not been paid any monthly salary as alleged in the petition.
This respondent further submits that this petitioner had not
submitted any application requesting the department for his
appointment or for making him as permanent employee. Hence
the allegations contra are false and baseless one and the
petitioner is put to strict proof of each and every one of them.
4. This respondent further submits that some other
Casual Labourers worked in the Diesel Bunk at Tirupattur
Page No.4/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
were ordered to be taken as Casual Labourers against the post
of Carway Boys by the Tamil Nadu Civil Supplies Corporation,
Chennai and to pay daily wages to them as per the rates fixed
by the District Collector, Vellore for the year 2008-2009.
4. This respondent further submits that as per the orders
of the Head Office in Rc.No.ALB4/56702/07, dated 11.2.2009,
this respondent had appointed one P.Jeyapal, R.Ramesh and
D.Sekar as Casual Labourers against the post of Carway Boys
and further instructed the Junior Assistant who is working at
Tirupattur Diesel Bunk to engage them as directed and further
in the order itself it was clearly stated that the same is purely
temporary and is liable to be terminated at any time without
assigning any reason therefor and also specifically stated that
the petitioners are not entitled to any other benefits. Hence this
respondent submits that either the petitioner or the others who
were engaged as temporary coolly workers udner daily wages
scheme are not entitled to any service benefits and they are not
liable to be made permanent. Hence the petition filed by the
petitioner is liable to the dismissed in limini.
5. This respondent further submits that as already
submitted the appointment of the petitioner was purely on
temporary basis without any future benefits, the petitioner is
not entitled to claim any benefits under the above order and
hence the petition is liable to be dismissed."
Page No.5/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
7. According to the Management, the employees in the case on hand
are casual labourers in the daily rated scheme and they are liable to be
terminated at any point of time, without assigning any reason. But, it is seen
that the employees had discharged the burden by marking an affidavit,
which was not refuted but partially admitted in the counter. Hence, we are
of the view that the finding on fact rendered by the authority, as affirmed by
the learned Single Judge, need not be interfered with.
8. The decision quoted by the appellant in WP.No.10445 of 2017,
dated 16.09.2019 is not applicable to the case on hand as the learned Single
Judge has proceeded on the basis of Umadevi Case (referred to supra),
which is a distinguishable one on facts. That apart, the judgment of the
Apex Court in Umadevi Case (referred to supra) is not applicable to the
facts of this case. In the said case, the Supreme Court has held that
back-door entry is impermissible and employees cannot seek for absorption,
regularisation etc. Further, in that case, the issue relating to permanent
status of the employees under the 1981 Act has not been considered.
Page No.6/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
9. It would be relevant to point out that the Supreme Court in the case
of Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and
others, reported in (2002) 3 SCC 533 has held as under:
"Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of
the facts of a particular case, said Lord Morris in Herrington
vs. British Railways Board (1972) 2 WLR 537. Circumstantial
flexibility, one additional or different fact may make a world of
difference between conclusions in two cases."
10. Though, it is the stand taken by the Management that the initial
burden is on the employee, and when the same is discharged in the present
case, the burden shifted on the employer.
11. In the present case on hand, the employees have approached the
Authority, in a summary proceedings and the authority has rendered a
finding of fact granting relief to the employee. More so, in the counter
Page No.7/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
statement filed before the authority, which is extracted supra, it is very clear
that there is an admission of employment and the number of days served by
the employees in the appellant Management is not disputed. Since Section 3
of the 1981 Act is a deeming provision, the employees are deemed to have
attained permanent status on completion of 480 days of service in a period
of 24 calendar months and the Authority has rightly granted the relief,
which has been rightly confirmed by the learned Single Judge.
12. In view of the above, we find no merit in the above appeal and
hence, the same is dismissed. The employer is directed to comply with the
order of the authority within a period of four months from the date of receipt
of a copy of this judgment. No costs. Consequently, connected
miscellaneous petition is closed.
(S.V.N.J.,) (K.R.S.J.)
25.08.2023
Speaking Order: Yes / No
pvs
Page No.8/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
To
The Inspector of Labour,
Thiruvannamalai,
Authority Constituted as under
Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to workmen) Act, 1981
Page No.9/10
https://www.mhc.tn.gov.in/judis
Writ Appeal No.2298 of 2023
S.VAIDYANATHAN, J
and
K.RAJASEKAR, J
pvs
Writ Appeal No.2298 of 2023
25.08.2023
Page No.10/10
https://www.mhc.tn.gov.in/judis
