Madras High Court
P. Karnan vs The Assistant Commissioner on 22 December, 2023
Author: S. Vaidyanathan
Bench: S. Vaidyanathan
W.A. No. 3553 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.12.2023
CORAM
THE HON’BLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HON’BLE MR.JUSTICE K. RAJASEKAR
W.A. No. 3553 of 2023
&
C.M.P. No. 29047 of 2023
P. Karnan ..Appellant
Vs.
1. The Assistant Commissioner
(Enforcement)-II,
Department of Labour,
Government of Tamil Nadu,
DMS Campus, Anna Salai,
Teynampet, Chennai – 6
2. The Superintending Engineer,
Tamil Nadu Electricity Board
General Construction Circle,
Thiru-Vi-Ka Industrial Estate,
SIDCO, Guindy, Chennai – 32. ..Respondents
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W.A. No. 3553 of 2023
Prayer: Writ Appeal as against the order dated 01.09.2023 passed in
W.P. No. 25758 of 2023.
For Appellant :: Mr.B. Manoharan
For Respondents :: Ms. Akila Rajendran for R1
JUDGMENT
(Delivered by S. Vaidyanathan,J.)
The writ appeal has been directed as against the order dated
01.09.2023 passed in W.P. No. 25758 of 2023.
2. The summation of facts that led to the filing of this writ
appeal are hereunder:
(a) The appellant herein, who was a contract workman, along with
others, through their federation, had approached the 1 st respondent, the
authority under the Tamil Nadu Industrial Establishments (Conferment of
Permanent Status)Act, 1981 (hereinafter '1981 Act' for the sake of brevity)
seeking permanent status and the same was conferred by orders dated
20.01.2020. Questioning the same, the 2nd respondent filed a batch of writ
petitions and by order dated 07.03.2022, the said writ petitions were
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disposed of remanding the matter to the Labour Inspector for passing orders
afresh, after summary enquiry. The relevant portions of the said order are
extracted hereunder:
“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 adjudicated
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 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
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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.
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 of the Labour Inspector of passing orders afresh,
after summary enquiry.
(b) Challenging the said order, though the workmen approached
the Hon’ble Apex Court in Special Leave to Appeal (C) Nos. 17878-17882
of 2022, the same were dismissed on 10.10.2022 directing the Labour
Inspector to conclude the proceedings on remand at the earliest, preferably
within a period of six months.
(c) Pursuant thereupon, the 1st respondent herein had issued notices
dated 26.07.2023 to some of the contractors to appear for an enquiry to be
held on 14.08.2023. Stating that without any authority and without any
application, the contractors cannot be summoned as witnesses, which is
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illegal and contrary to the orders passed by this Court; that the evidence of
the contractors may not be taken note for passing orders and that the 1st
respondent has no jurisdiction to conduct a detailed trial and pass orders, an
objection memo was filed by the workmen. As no orders were passed on the
said memo, W.P. No. 25758 of 2023 was filed before this Court by the
appellant herein seeking a direction to the 1st respondent herein to pass
orders on the objection memo before proceeding further with the enquiry
and for a further direction to proceed with the enquiry as directed by this
Court by order dated 07.03.2022 in W.P. No. 4061 of 2013 etc batch.
(d) When the said writ petition was taken up for hearing, it was
submitted on behalf of the appellant/writ petitioner that a direction may be
issued to the 1st respondent herein to permit the appellant/writ petitioner to
cross-examine the contractors, who were summoned. In view of the said
submission made, the writ petition came to be disposed of by the order
under challenge as hereunder:
“5. In view of the fair submission made by the learned counsel
for either side, this Court is inclined to issue a direction to the first
respondent to permit the petitioner to cross examine the contractors on
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the same day and thereafter, the first respondent is directed to consider
the petitioner’s claim and pass appropriate orders on merits and in
accordance with law as expeditiously as possible.”
Stating that the learned Single Judge, while disposing of the writ petition,
failed to take into consideration the direction given by this Court in W.P. No. 4061
of 2013 etc batch and taking advantage of the same, his claim would get rejected,
the workman has preferred the present writ appeal.
3. The main contention of the appellant herein is that the procedure
contemplated under the 1981 Act is only summary in nature and that the authority
cannot examine any person on his own.
4. We are unable to accept the said contention raised by the appellant,
more so, in the light of Section 5 of 1981 Act, which reads thus:
5. Power and duties of Inspectors. – Subject to any rules made by the
Government in this behalf, the Inspector may, within the local limits for
which he is appointed,--
(a) enter at all reasonable times and with such assistants, if any, who are
persons in the service of the Government or of any local authority as he
thinks fit to take with him, any industrial establishment;
(b) make such examination of the industrial establishment and of any
registers, records and notices and take on the spot or elsewhere the evidence
of such person as he may deem necessary, for carrying out the purposes of
this Act: and
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(c) exercise such other powers as may be necessary for carrying out the
purpose of this Act. “
As could be seen from the aforesaid provision, the authority is
empowered to examine any person as he may deem necessary for carrying
out the purposes of the Act. So, issuance of summons to appear before the
authority to examine any person, who may be relevant for the purpose of
determination of the dispute is perfectly valid. Moreover, the order passed by
the learned Single Judge is only based on the submission made on behalf of
the appellant that a direction may be issued to the Assistant Commissioner
of Labour (Enforcement) to permit him to cross examine the contractors,
who were to be summoned, and the appellant cannot have any grievance at
all as the said permission had also been granted by the learned Single Judge.
Hence, the writ appeal stands dismissed. The authority/1st respondent herein
is expected to proceed with the enquiry on a day-today basis without
adjourning the matter beyond 10 working days at any given point of time.
No costs. Connected C.M.P. is closed.
(S.V.N.J.) (K.R.S.J.)
nv 22.12.2023
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S. VAIDYANATHAN,J.
AND
K. RAJASEKAR,J.
nv
To
1. The Assistant Commissioner
(Enforcement)-II,
Department of Labour,
Government of Tamil Nadu,
DMS Campus, Anna Salai,
Teynampet, Chennai – 6
2. The Superintending Engineer,
Tamil Nadu Electricity Board
General Construction Circle,
Thiru-Vi-Ka Industrial Estate,
SIDCO, Guindy, Chennai – 32.
22.12.2023
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