Madras High Court
The Management vs The Inspector Of Labour on 20 January, 2023
W.A.No.75 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20.01.2023
Coram:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Writ Appeal No.75 of 2022
and
C.M.P.No.669 of 2022
---
The Management,
Tamil Nadu State Transport Corporation
(Villupuram) Limited,
Head Office, Tiruvannamalai Region,
Bye-pass Road, Vengikal,
Thiruvannamalai,
Rep. by its General Manager, .. Appellant
Vs.
1. The Inspector of Labour,
Authority under Tamil Nadu
Industrial Establishments (Conferment
of Permanent Status to Workmen) Act, 1981.
(Tamil Nadu Act 46 of 1981),
Tiruvannamalai.
2. Thiru.V.Pandiyan .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 31.03.2021 passed by the learned Single Judge, in Writ Petition
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W.A.No.75 of 2022
No.41005 of 2016 on the file of this Court.
For appellant : Mr.M.Aswin
For respondents : Ms.E.Ranganayaki, Addl.G.P. for R-1
Mr.D.Veerasekaran for R-2 (Caveator)
JUDGMENT
(The Judgment of the Court was delivered by S.Vaidyanathan,J)
The present appeal has been filed against the order dated 31.03.2021
passed by the learned Single Judge, in W.P.No.41005 of 2016, granting
relief as follows:
"7. Accordingly, this Court is inclined to
pass the following order:
(i) The second respondent/workman is not
entitled to any monetary benefits for the
interregnum period between 18.03.2013 and
21.05.2015.
(ii) The amount payable towards employer's
contribution for the interregnum period shall be
adjusted from the terminal benefits payable to the
second respondent/workman.
(iii) The petitioner is directed to settle all the
terminal benefits after adjusting the dues towards
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W.A.No.75 of 2022
employer's contribution, within a period of eight
weeks from the date of receipt of a copy of this
order."
2. The main contention of the appellant/Management is that the
second respondent/employee was engaged as a Reserve Driver and
thereafter, on temporary basis by proceedings dated 05.12.2000 and that he
has not completed 480 days of continuous service in a period of 16 calendar
months. The Authority has mechanically calculated the number of days as
480 days and granted permanent status. There is no iota of evidence
produced by the second respondent/workman to show that he has completed
480 days of continuous service in a period of LESS THAN 24 calendar
months and the order of the Authority, as confirmed by the learned Single
Judge, is erroneous.
3. It is further stated by the Management that the employee was also
involved in a serious misconduct by participating in an agitation/strike,
which resulted in initiation of disciplinary proceedings and he was removed
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W.A.No.75 of 2022
from service. The Management has also filed Approval Petition, which was
rejected by the Authority and that the same has become final. Since the
Approval Petition has been rejected by the Authority concerned, the second
respondent-employee claims to be deemed to be in service, in the light of
the decision of the Supreme Court reported in 2002 (2) SCC 244 (Jaipur
Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others).
4. It is also stated by the Management that pursuant to the settlement
of the year 2005, the employee (second respondent) has been granted
permanent status and that he is not entitled to any relief much less the one
granted by the Authority concerned, as modified by the learned Single
Judge.
5. The learned counsel appearing for the second respondent/workman
contended that the employee has joined the service as early as on
10.02.1998, pursuant to the Telegram received by him on 23.01.1998,
asking him to report for work and that he has completed 480 days of
continuous service as on 04.06.1999.
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W.A.No.75 of 2022
6. A reading of the order of the Authority makes it clear that a
detailed discussion on the submissions made by the parties, have been
referred to, however, the second respondent/employee has not discharged
his initial burden of proving 480 days of continuous service in 24 calendar
months. However, before the learned Single Judge, the Management has
stated that the employee has been granted permanent status with effect from
the date of joining and the relevant portion of the order of the learned Single
Judge is extracted below:
"6. During the arguments, the learned
counsel for the petitioner would submit that there is
no dispute with regard to granting of permanent
status to the second respondent. The actual dispute
is with regard to the date of granting the same.
Now that the first respondent has granted
permanent status with effect from the date of his
joining. However, the Writ Petitioner alleges that
there is enormous delay in filing the petition before
the first respondent in spite of the orders passed by
this Court in W.P.No.13854 of 2008 dated
26.02.2013. For that purpose, the second
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W.A.No.75 of 2022
respondent has filed an Affidavit, dated 28.03.2021
giving up his backwages for the interregnum period
between 18.03.2013 and 21.05.2015 an has
undertaken to pay the employer's contribution, for
the purpose of getting pension."
7. Even going by the appointment order, dated 05.12.2000, the
employee was temporarily selected to the post of Driver on daily wage
basis, and in the light of the statement recorded by the learned Single Judge,
the employee has been granted permanent status with effect from
05.12.2000. The contention that there was a ban for the year 2001 for
recruitment, may not be applicable to the facts and circumstances of the
present case on hand, as the employee has been made permanent based on
the statement given before the learned Single Judge, even though it has been
contended that it was erroneously recorded, and not even a petition has been
filed for modification for eschewing the said remarks, or even a review has
also not been filed to delete the observations made therein. The learned
Single Judge who passed the impugned order on 31.03.2021 has retired
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W.A.No.75 of 2022
from service only in May 2022. Nothing prevented the Management in
filing a petition before the learned Single Judge who passed order.
8. That apart, the Transport Corporation being a "State" amenable to
Writ jurisdiction of this Court, and the employee has already attained the
age of superannuation, it is not necessary that he must be relegated to one
more round of litigation, more so, he has given up the service benefits that
has been recorded in paragraph 7 of the order passed by the learned Single
Judge extracted above.
1. Taking note of the submissions made by the parties, we are of the
view that there is no reason to interfere with the impugned order
passed by the learned Single Judge, more so, the employee has given
up many benefits and even consented to contribute including that he
has agreed to contribute to the Provident Fund of the employer's
share, as could be seen from paragraph 6 of the impugned order
passed by the learned Single Judge extracted above. The same
contention has been reiterated verbally before this Court by the
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W.A.No.75 of 2022
learned counsel for the second respondent/workman.
10. In view of the above discussion and taking into consideration the
facts and circumstances of the case, without going into the question as to
whether the second respondent/workman's permanency needs to be
considered based on 2005 settlement or as to whether he was not even
regularised during the period of ban, and the same need not be answered in
the present Writ Appeal and the issue is let open.
11. Hence, we are of the view that the impugned order passed by the
learned Single Judge does not call for any interference by us and the
appellant/Management is expected to settle all the benefits to the second
respondent-employee, if not already settled, within a period of four months
from the date of receipt of a copy of this judgment, as if the second
respondent-employee is deemed to have attained permanent status with
effect from 05.12.2000 and he is entitled to all the benefits that are not
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prohibited under law.
12. The present Writ Appeal is disposed of with the above
observations/directions. There shall be no order as to costs. Consequently,
the miscellaneous petition is closed.
(S.V.N.,J) (J.S.N.P., J)
20.01.2023
Index: Yes/no
Speaking Order: Yes/no
Neutral Citation: Yes/no
cs
Note: Issue order copy on 10.02.2023.
To
1. The Management,
Tamil Nadu State Transport Corporation
(Villupuram) Limited,
Head Office, Tiruvannamalai Region,
Bye-pass Road, Vengikal,
Thiruvannamalai,
Rep. by its General Manager.
2. The Inspector of Labour,
Authority under Tamil Nadu
Industrial Establishments (Conferment
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W.A.No.75 of 2022
of Permanent Status to Workmen) Act, 1981.
(Tamil Nadu Act 46 of 1981),
Tiruvannamalai.
S.VAIDYANATHAN, J
and
J.SATHYA NARAYANA PRASAD, J
cs
W.A.No.75 of 2022
20.01.2023
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