Madras High Court

The Managing Director vs The Inspector Of Labour on 3 August, 2023

    2023:MHC:4041

                                                                WA.Nos.362 of 2023 etc. batch

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                         Dated: 03.08.2023

                                             Coram:

                          THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
                                            AND
                            THE HONOURABLE MR.JUSTICE K.RAJASEKAR

                      W.A.Nos.362 of 2023, 1851, 2153, 2270 and 2080 of 2022
                 and CMP Nos.3431 of 2023, 15708, 16061, 13545 and 17315 of 2022


            The Managing Director,
            Tamil Nadu State Transport Corporation
                  (Coimbatore) Limited,
            37, Mettupalayam Salai,
            Coimbatore – 43.
                                                .... Appellant in the above W.As.

                                          Vs.

            1. The Inspector of Labour,
               Authority under the Tamil Nadu
                  Industrial Establishment (Conferment of
                  Permanent Status) Act, 1981
               Coimbatore.
                                            .... Respondent in the above W.As.

2. Thiru S.Thangavel .... Respondent in W.A.No.362 of 2023

2. Thiru N.Rubert Raj .... Respondent in W.A.No.1851 of 2022

2. Thiru M.Sakthivel .... Respondent in W.A.No.2270 of 2022

2. Thiru S.Chandrasekaran .... Respondent in W.A.No.2153 of 2022

2. Thiru D.Rangasamy .... Respondent in W.A.No.2080 of 2022

https://www.mhc.tn.gov.in/judis

WA.Nos.362 of 2023 etc. batch

Common Prayer: APPEALs filed under Clause 15 of the Letters Patent Act against orders, all dated 01.10.2020 made in W.P.Nos.15461, 15462, 15464, 15463 and 15465 of 2017 on the file of this Court.

For Appellant in all Writ Appeals : Mr.A.Sundaravadhanan For Respondents in all Writ Appeals: Mr.P.Ganesan - R1

COMMON JUDGMENT

(Judgment of the Court was delivered by S.VAIDYANATHAN,J.)

The present appeals have been preferred as against the order dated

01.10.2020 passed in W.P.Nos.15461, 15462, 15464, 15463 and 15465 of

2017.

2. The issue involved in these Writ Appeals relates to the grant of

permanent status under the Tamil Nadu Industrial Establishment (Conferment

of Permanent Status) Act, 1981. I have had occasion to consider the similar

issue in W.A.No.962 of 2021, wherein vide judgment dated 13.02.2023 while

analysing the issue relating to conferment of permanent status and after

referring to the various decisions of the Hon'ble Apex Court, held as follows:

'The Constitution Bench of Hon’ble Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vs. Ram Gopal Sharma and Others ((2002) 2 SCC 244) has categorically held that no word in the enactment should be made redundant and each and every word should be given a proper meaning. The relevant portion of he said judgment reads thus:

“13. ...It is well-settled rule of interpretation that https://www.mhc.tn.gov.in/judis no part of statute shall be construed as unnecessary

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or superfluous. The proviso cannot be diluted or disobeyed by an employer. ....The interpretation of the statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it....”

10. Though it is contended on behalf of employer that Inspector can do certain things as enumerated under the Act, the entire provisions and the Rules have got to be looked into. This makes it very clear that in addition to the benefits conferred, under Section 5 of 1981 Act, the Inspector, shall for the purpose of giving effect to the provisions of the Act, has the power to do all or any of such things, which means apart from taking evidence, he is empowered to carry out such other exercise as enumerated under the Rules. Apart from that, Section 5(c) of 1981 Act empowers the Inspector to exercise such other powers as may be necessary for carrying out the purposes of the Act. So, the employer and the employee can let in evidence, mark documents and eventhough it is summary in nature, the authority is empowered to pass a quasi-judicial order. Reliance has been placed on the decision reported in 2022 SCC Online Madras 1003 (cited supra) and the relevant paragraph Nos. 29 to 31 are extracted below:

"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 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 refernece to each workman about his continuous service for 480 days in 24 calendar months. Thus, we need to https://www.mhc.tn.gov.in/judis

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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."

11. We are in entire agreement with the finding rendered by the Co-ordinate Bench. When the documents are filed before the authority, it is the duty of the authority to look into the aspect as to whether the employee has rendered sufficient number of days of service. Merely stating that by virtue of a particular exhibit, the employee has completed 480 days of service in 24 calendar months is not sufficient. The details will have to be extracted. In some cases, he would not have seen the documents that would have been produced before the authority or in some cases, he might have inspected the place of work and taken summary of documents, which needs to be reflected. That apart, the Inspector of Labour, Tiruvannamalai, while answering issue No.3 as to whether the employee has completed 480 days of service in 24 calendar months and whether he is entitled to get permanency under Section 3 of 1981 Act has referred to clause (e) of Settlement dated 30.09.1992 and the relevant portion is extracted below:

"nkYk; kDjhuuhy; jhf;fy; bra;ag;gl;Ls;s 30/9/1992 ehspl;l bjhHpw;jfuhW rl;lk; gphpt[ 12(3)d;go bra;ag;gl;l xg;ge;jj;jpy; gphpt[ @,@y;

fPH;fz;lthW bjhptpf;fg;gl;Ls;sJ/ 'In case of a misconduct or offence committed by such daily rated person after satisfactory completion of 240 days of actual work but before the actual issue of confirmatory order, such person shall be deemed to have been confirmed on the completion of 240 days of actual work and such order confirming his employment in regular scale of pay shall be issued retrospecting from such date without https://www.mhc.tn.gov.in/judis

WA.Nos.362 of 2023 etc. batch

prejudice to the disciplinary action against the misconduct or offence committed by him.' nkw;brhd;d 30/09/1992 njjpapl;l 12(3) xg;ge;jj;jpy; bjhptpj;Js;sthW. tpgj;jpw;F Kd;dh; kDjhuh; jFjpahd 240 gzp ehl;fs; Koj;Js;s njjpapy; gzp epue;ju cj;jut[ tH';fp mjd;gpwnf xG';fPdj;jpw;F jz;lidfs; tH';fg;gl;oUf;f ntz;Lk;/ nkYk;. vjph;kDjhuh; eph;thfj;jhy; kDjhuh; 240 ehl;fis g{h;j;jp bra;jpUe;Jk; gpd;dh;

                                  Vw;gLj;jpa       tpgj;ijf;      fhuzk;       fhl;o
                                  kDjhuUf;F       gzpepue;juk;     kWf;fg;gl;Ls;sJ
                                  bjspthfpwJ/
                                        nkYk; vjph;kDjhuh; jdJ gjpYiuapy;.
                                  2001 k; Mz;L gzp epakd jilr; rl;lk;

mkypy; ,Ue;jjhy; kDjhuUf;F gzp epue;ju Miz tH';ftpy;iy vd;W bjhptpj;Js;shh;/ Mdhy; gzp epakd jilr; rl;lk; g[jpajhf xUtiu gzpf;F epakdk; bra;tjw;fhf tH';fg;gl;l jilah my;yJ gzpapy; cs;s xUtiu epue;juk; bra;tjw;F tpjpf;fg;gl;l jilah vd;gij jFe;j Mtz';fs; bfhz;L epU:gpf;ftpy;iy/ nkYk;. kDjhuh; jdJ kDtpy; gzp epakd jilr;rl;lk; mkypy;

bfhz;Ltug;gl;l 2001 f;F Kd;ng jhd; 480 ehl;fis Koj;Js;sjhf bjhptpj;Js;shh;/ ,t;tHf;fpy; vjph;kDjhuh; jdJ vjpUiuapy; kDjhuh; 28/02/1998 Kjy; jw;fhypf Xl;Leuhf epakpf;fg;gl;lija[k;. gpd;dh; 21/12/1999 Kjy; jpdf;Typ mog;gilapy; Xl;Leuhf epakpf;fg;gl;Ls;sija[k; xg;g[f; bfhz;Ls;sjhy; 28/02/1998 Kjy; bjhlh;e;J ,uz;L Mz;Lfspy; 480 ehl;fiz 22/06/1999 Koj;Js;sjhYk;.

kDjhuh; tpgj;J Vw;gLj;jpa ehshd 14/03/2001 f;F Kd;ng kDjhuh; 480 ehl;fis Koj;Js;sJk; bjspthfpwJ/@ The authority has rendered a finding of fact that the employee has completed 480 days of https://www.mhc.tn.gov.in/judis

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continuous service in a period of 24 calendar months. No settlement can be entered into contrary to the provisions of the Act. Similarly, 1981 Act does not have a similar provision like Section 4(5) of Payment of Gratuity Act, 1972. If such powers are provided under the Act, then the authority would have been empowered to adjudicate whether conferment can be granted if an employee completes 480 days in a period of 24 calendar months.

12. The crux of the entire argument of the Management appears to be that the benefit of pension scheme had been stopped with effect from 2003 and that the employee cannot seek extension of that benefit. Even going by the averment that the employee had joined service in 2000, he had rendered 480 days of continuous service in 2002, which is prior to stoppage of pensionary benefits to all the employees as stoppage of pensionary scheme came into effect from 01.04.2003. The employer may be aggrieved by the grant of backwages for delay in raising the dispute. Firstly, there is no time frame fixed for filing a case seeking grant of permanent status. Secondly, Section 3 of 1981 Act clearly stipulates a deeming provision, which mandates the employer to confer permanent status since the employee is deemed to have attained permanent status on completion of 480 days. Since the employee has been allowed to continue, loss of backwages does not arise as the employee has already been granted permanent status with effect from 2005. The only issue is whether it should be anterior to that date or not. That apart, the employee has already made a submission before the learned Single Judge that he is not claiming any benefits for the period from 22.06.1999 to 30.10.2015 and the paragraph No.6 of the order passed in the writ petition would be relevant to quote:

“6. In view of the foregoing discussion, there does not appear to be any infirmity in the decision-making process of the First Respondent requiring interference by this Court in the exercise of discretionary powers of judicial review under Article 226 of the Constitution. However, Learned Counsel for the Second Respondent submits that the Second Respondent is willing to forego the payment of https://www.mhc.tn.gov.in/judis

WA.Nos.362 of 2023 etc. batch

differential amount of monetary benefits alone for the period from 22.06.1999 till 30.10.2015 when the application was made before the First Respondent, except the payment of employer’s contribution towards Provident Fund/Pension during that period, as a voluntary gesture to minimize financial implications for the Petitioner and he has filed a memo dated 29.09.2020 to that effect through e-mail, which has been placed on record.”

13. The other contention that as there was a ban from 2001 to 2006 vide G.O.Ms.No.212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001, there was no recruitment and therefore, the said period cannot be taken into account for the purpose of counting 480 days is concerned, the same cannot be accepted. The Government Order in G.O.Ms. No. 212 Personnel and Administrative Reforms (P) Departent, dated 29.11.2001 would make it very clear that there was a ban only on recruitment and not for continuance of employment and for conferment of permanent status.

14. The workman had joined the service of the Transport Corporation in 1998 and 25 years have gone by now. When the issue pertaining to applicability of Tamil Nadu Shops and Establishments Act, 1947 to Nationalised Bank was questioned, in Indian Bank represented by its Assistant General Manager V. R.S. Thiruvengadam and another reported in 1990 II LLN 335 and Indian Bank represented by its General Manager V. K.S. Gurumurthy reported in (1990) II LLN 355, it has been held by this Court that eventhough the Bank may not be amenable to the jurisdiction of the authority under Tamil Nadu Shops and Establishments Act, 1947, the Bank, being a State, is amenable to the jurisdiction of this Court. Similarly, the Tamil Nadu State Transport Corporation is a State within the meaning of Article 226 of the Constitution of India and is amenable to writ jurisdiction of this Court. Taking note of the fact that 25 years have gone by and in order to shorten the life of litigation, we postpone the regularisation with effect from 2001 when the benefits have been given up by the employee, which is found reflected in the order of the learned Single Judge extracted supra. https://www.mhc.tn.gov.in/judis

WA.Nos.362 of 2023 etc. batch

15. In order to give a quietus to the issue on hand, we direct the employer who is amenable to writ jurisdiction of this Court to confer permanent status on and from 1st September, 2002 in the light of the appointment order dated 12.07.2000 produced by the employer and paragraph No.10 of the award, which reads as under:

@10/ mnjnghy; nkw;brhd;d 24 fhyz;lh;

khj';fshd 13/07/2000 Kjy; 12/07/2002 tiuahd fhyj;jpy;. ehd; khjj;jpw;F 26 ehl;fs; gzpbra;Jte;jjd; mog;gilapy; fzf;fPL bra;ag;gl;lhny. ehd; 14/01/2002y; 468 ehl;fs; gzpKoj;Js;nsd;/ nkYk; me;j khj';fspy;

vdf;F rk;gsj;Jld; Toa thutpLKiw ehl;fshd 72 ehl;fisa[k; nrh;j;jhy; 540 ehl;fs; gzpKoj;Js;nsd;/ mjd;go ehd;

thu tpLKiwapy; cs;s 70 ehl;spy; 12 ehl;fis nrh;j;jhy; ehd; 14/01/2002y; ehd; 480 ehl;fs; gzpKoj;Js;nsd;/ vdnt nkw;brhd;d fzf;fPl;od;goahtJ vd;id gzp epue;juk; bra;jpUf;f ntz;Lk;/@ The Government Order had come into force only with effect from 2003 and therefore, that cannot take away the benefit conferred either under the settlement or available to a person under an enactment . Though it has been stated that the Rules framed under 1981 Act are not wide enough to empower the authority to decide, we cannot issue any direction to the Legislature to amend the act in a particular manner or frame the Rules. However, a suggestion can be made in the light of the judgment of the Hon’ble Apex Court reported in AIR 1987 SC 1960 (Krishna District Co-operative Marketing Society Ltd., Vijayawada V. N.S. Purnachandra Rao and others) wherein a suggestion was made with regard to amending I.D. Act to enable the employee to approach the Court directly and the Apex Court has held that we cannot give a direction, but can make a suggestion that it is for the Legislature to decide as to whether suitable amendment needs to be https://www.mhc.tn.gov.in/judis

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incorporated in the Act or not.

“11. We may incidentally observe that the Central Act itself should be suitably amended making it possible to an individual workman to seek redress in an appropriate forum regarding illegal termination of service which may take the form of dismissal, discharge, retrenchment etc. or modification of punishment imposed in a domestic enquiry. An amendment of the Central Act introducing such provisions will make the law simpler and also will reduce the delay in the adjudication of industrial disputes. Many learned authors of books on industrial law have also been urging for such an amendment. The State Act in the instant case has to some extent met the above demand by enacting section 41 providing for a machinery for settling disputes arising out of termination of service which can be resorted to by an individual workman. In this connection we have one more suggestion to make. The nation remembers with gratitude the services rendered by the former Labour Appellate Tribunal which was manned by some of our eminent Judges by evolving great legal principles in the field of labour law, in particular with regard to domestic enquiry, bonus, gratuity, fair wages, industrial adjudication etc. The Industrial Disputes (Appellate Tribunal) Act, 1950 which provided for an all-India appellate body with powers to hear appeals against the orders and awards of Industrial Tribunals and Labour Courts in India was repealed in haste. If it had continued by now the labour jurisprudence would have developed perhaps on much more satisfactory lines than what it is today. There is a great need today to revive and to bring into existence an all- India Labour Appellate Tribunal with powers to hear appeals against the decisions of all Labour Courts, Industrial Tribunals and even of authorities constituted under several labour laws enacted by the States so that a body of uniform and sound principles of Labour law may be evolved for the benefit of both industry and labour https://www.mhc.tn.gov.in/judis

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throughout India. Such an appellate authority can become a very efficient body on account of specialisation. There is a demand for the revival of such an appellate body even from some workers' organisations. This suggestion is worth considering. All this we are saying because we sincerely feel that the Central Act passed forty years ago needs a second look and requires a comprehensive amendment.”

16. The writ appeal is disposed of accordingly. No costs. Connected C.M.P. is closed.'

3. Both learned counsel concur on the position that the issue involved

in these Writ Appeals is covered by the aforesaid decision of this Court and

seeks that the same order may be passed in these Writ Appeals as well.

4. Acceding to the aforesaid request and in light of the identity in facts

and legal position, the same order as above is extended to the parties in the

present case as well.

5. These Writ Appeals are disposed. No costs. Connected

Miscellaneous Petitions are closed.

(S.V.N.,J) (K.R.S.,J) 03.08.2023 Index: Yes/No Speaking/Non-speaking order Neutral citation:Yes/No sl

To https://www.mhc.tn.gov.in/judis

WA.Nos.362 of 2023 etc. batch