Madras High Court

V. Mahalakshmi vs The Chief Engineer (Personnel) on 5 July, 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.07.2023

CORAM

THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN

W.P.No.8242 of 2016

V. Mahalakshmi .. Petitioner
Vs.

1.The Chief Engineer (Personnel)
Tamil Nadu Generation and Corporation Limited,
8th Floor, N. P. K. R. R Maligai,
No.144, Anna Salai,
Chennai – 2.

2.The Chairman -cum- Managing Director,
Tamil Nadu Generation and Corporation Limited,
10th Floor, N. P. K. R. R Maligai,
No.144, Anna Salai,
Chennai – 2.

3.The Superintending Engineer,
Purchase and Administration,
Tamil Nadu Generation and Corporation Limited,
Tuticorin Thermal Power Station,
Tuticorin – 4. .. Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records
relating to the proceedings of the 3rd respondent in Memo No.780/Adm-
II/A.1/2011 dated 02.01.2012 insofar as the order deems the petitioner as

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2

fresh appointment against the order of the competent authority under the
Tamil Nadu Industrial Establishments (Conferment Status to Workmen) Act
1981 dated 02.01.2001 as illegal and arbitrary and consequentially directing
the 1st respondent to confer permanent status to the petitioner from the date
of her joining in the service of the 3rd respondent entitling the service
benefits of promotion, back wages, continuity of service, family pension
benefits and all other concomitant service benefits eligible to the petitioner.

For Petitioner .. Mr. R. Suresh Kumar
for Mr. K. M. Vijayan Associates

For Respondents .. Mr. Venkatesh Prasad A. P
for Mr. T. S. Gopalan & Co.

ORDER

This Writ Petition has been filed in the nature of Certiorarified

Mandamus seeking records relating to the proceedings of the 3rd respondent

/ the Superintending Engineer, Purchase and Administration in Memo No.

780/Adm-II/A.1/2011 dated 02.01.2012 insofar as the order deems that the

petitioner had been appointed afresh which was contrary to the earlier order

of the competent authority dated 02.01.2001 established under the Tamil

Nadu Industrial Establishments (Conferment Status to Workmen) Act, 1981

and consequentially to direct the 1st respondent, the Chief Engineer

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(Personnel), Tamil Nadu Generation and Corporation Limited, Chennai, to

confer permanent status to the petitioner from the date of she joined in the

service of the 3rd respondent together with all attendant benefits.

2.The writ petitioner herein, was originally employed as contract

labourer under the 3rd respondent from the year 1997 - 1998. She claimed

that she had put in service for more than 480 days, which would qualify her

category as permanent employee. Since employment was not regularized,

she had approached the competent authority under the Tamil Nadu

Industrial Establishments (Conferment of Status to Workman) Act, 1981.

The competent authority had passed an order on 02.01.2001. The said order

was passed after examining the counter filed by the respondent, the Chief

Engineer, Tamil Nadu Electricity Board, Tuticorin. The competent authority

also noted the deposition of the petitioner herein, that she had completed

480 days of continuous service. There were some disputes relating to the

continuance of service, but it had been recorded that the respondents had

finally agreed that the petitioner had worked in their establishment and had

put in continuous service of 480 days in 24 calender months.

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3.This is the crucial aspect, which has to be examined. The contract

worker who had worked for 480 days in two calender years or in 24 months,

is normally expected to be regularized in that particular post, in view of the

continuous service. If it is not so done, there is an authority which is

established under the aforementioned Act. The said authority, the Deputy

Inspector of Factories, Thirunelveli, by proceedings in R.O.C. No.A1 / 3266

/ 2000 passed orders on 02.01.2001, after examining the rival contentions

and giving opportunity to both the sides. Finally, the petitioner's application

was allowed and a direction was given to the respondents to appoint the

petitioner as permanent worker in Tuticorin Thermal Power Station,

Tuticorin.

4.This order had attained finality, consequent to it being examined by

the learned Single Judge of this Court in W.P.No.34699 of 2002, which had

been preferred by the respondents herein. The learned Single Judge in the

course of the order, took note of earlier observations of the Division Bench

in a similar matter, wherein a similar issue was raised in W.A.No.311 of

2004, the Chairman, Tamil Nadu Electricity Board and others Vs. State

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of Tamil Nadu, rep. by its Secretary to Government, Energy Department

and others), and after reducing the ratio therein was of the firm opinion that

the order of the authority need not be interfered with and dismissed the writ

petition. The relevant paragraph of the said order of the learned Single

Judge are as follows:

“2.When the matter was taken up for disposal, the learned counsel appearing for the petitioner fairly submitted that the issue involved in the present writ petition is covered by a judgment dated 17.11.2008, rendered by a Division Bench of this Court, passed in W.A.No.311 of 2004, in the case of (The Chairman, Tamil Nadu Electricity Board and others Vs. State of Tamil Nadu, rep. by its Secretary to Government, Energy Department and others).

3.In the said judgment, the Division Bench, after considering the relevant provisions, has observed as follows:-

“There is no dispute on the facts of this case that the contract labourers in question right from the date when they were appointed as contract labourers till they were dispense with from service, had put in more than 480 days of service, except on labourer, Mohamed Rafi, who

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had completed 479 days. The bone of contention of Mr.V.Radhakrishnan, learned Senior Counsel for the appellants is that while calculating the total period of service, the cut-off date as on 30.04.1999, should be taken into consideration. In our considered view, the said argument cannot be accepted. A provision of statute should be applied with all its force and that too in respect of a provision contained in the beneficial legislation like the one on hand, viz., Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workman) Act, 1981. In fact, Section 3 by itself confers a permanent status on a contract labourer provided if he complies with the condition relating to the service of 480 days in a period of 24 calender months. Such a right conferred under the beneficial provision cannot be taken away by the letter issued by the Tamil Nadu electricity Board, fixing a cut-off date. If such power on the Tamil Nadu Electricity Board is recognized, that would defeat the very purpose of the provisions of the Act. We need no authority for the said proposition, as neither the circular not the administrative instruction can override the statutory provision. In fact, the Court has gone to the extent of holding that even the rules framed under a particular enactment cannot go beyond the main provisions of the

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Act. As the letter fixing the cut-off date cannot be a ground and the Act contemplates permanent status on a workman by virtue of completion of 480 days of service in a period of 24 calender months, we find no infirmity in the order of the Learned Single Judge. Accordingly, the Writ Appeal fails and it is dismissed accordingly. As the order of the Inspector directing the Tamil Nadu Electricity Board to absorb each of the contract labourer in question was made as early as on 02.01.2001 and so far the said order could not be implemented due to the pendency of the writ petition and writ appeal, we hereby direct the appellant-Board to implement the order of the Inspector dated 02.01.2001, in letter and spirit within a period of two months from the date of receipt of a copy of this order.”

4.Considering the ratio, laid down by the Division Bench in the judgment referred to supra and applying the same to the facts of the present case on hand, this Court is of the view that the writ petition is liable to be dismissed and accordingly, the same is dismissed. However, there shall be no order as to costs.”

In effect the order of the Deputy Inspector of Factories dated

02.01.2001, had been upheld on all aspects.

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5.The only issue which now remains is for the respondents to

comply with the directions therein. The respondents had passed an order

insofar as the petitioner is concerned and they passed an order that she

would be recognized as a permanent workman from the date of joining the

duty and posted to Executive Engineer / Spares Division, Tuticorin Thermal

Power Station. This order was dated 02.01.2012, which effectively meant

that, after the date of that particular order, whenever she joins duty from that

date onwards she would be recognized as permanent workman.

6.This order defies logic. The issue of regularization has arisen only

because the petitioner had put in 480 days of continuous service, when she

was working as a contract labour. That was the basis on which her service

regularized and it is not on the basis of whims and fancies of the

respondents to appoint her on particular date and regularize her as regular

appointee. If that has to be done, they should follow the rules and

regulations. They had recognized that she had put in 480 days of continuous

service and consequent to such service, the regularization had been given by

the Deputy Inspector of Factories on 02.01.2001 and had been confirmed by

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the learned Single Judge in the aforementioned writ petition. The

respondents ought to have recognized that she was a permanent employee,

which service is to be regularized from the date when such regularization

was expected or recognized by the competent authority. That was

recognized by order dated 02.01.2001. Therefore, her regularization should

relate back to that particular date namely, 02.01.2001 and not to any

arbitrary date as determined by the respondents. The petitioner, as a matter

of right, is entitled for that particular recognition, consequent to her working

continuously for 480 days in a space of two calender years and which has

been accepted by the respondents.

7.I am also informed that similarly placed employees who were

prejudiced by similar orders passed without relating to the order of the

competent authority had filed W.P.Nos.10054 to 10057 of 2011, E. Sekar

and others Vs. The Chief Engineer (Personnel) Tamil Nadu Generation

and Corporation Limited and others. A learned Single Judge of this Court

by judgment dated 12.06.2014 had recognized this very liberty and had

directed that the petitioners therein should be deemed to be recognized as

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being in regular service from the date of the order of the competent

authority. Consequent to the directions of the learned Single Judge, though

a writ appeal was filed, the same suffered an order of dismissal. The

respondents had realized the duty to their workmen and had passed

consequential orders on 23.01.2016 by determining the seniority of all the

four petitioners therein from the date of the order of the Deputy Inspector of

Factories, Thirunelveli, namely 02.01.2001.

8.The petitioner herein stands on the very same footing. There cannot

be discriminations as between two similarly placed employees by one

employer. That would go to the root of the labour jurisprudence and the

respondents herein will necessarily have to abide by their own or by

affirming the orders of the learned Single Judge. It is very important and

imperative that the respondents as a responsible organization, are compelled

to follow the rule of law and they are compelled to follow the orders of this

Court.

9.In view of the aforementioned reasons, this Writ Petition deserves

to be allowed. A specific direction is given that the respondents should

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absorb the petitioner herein and recognize her from 02.01.2001 from the

date of the order of the Deputy Inspector of Factories / Competent Authority

under the the Tamil Nadu Industrial Establishments (Conferment Status to

Workmen) Act, 1981 and extend to the petitioner with all attendant benefits

from that particular date onwards.

10.With the above observations, this Writ Petition stands allowed. No

Costs.

11.The learned counsel for the respondents after orders had been

dictated placed reliance on the judgment of the writ appeal in W.A.No.1544

of 2022, R. Palani Vs. The Chairman -cum- Managing Director, Tamil

Nadu Electricity Generation and Distribution Corporation Ltd., Chennai

and others, dated 15.07.2022. The writ petition which had been filed by the

petitioner herein and referred by this Court was specific to this writ

petitioner and when orders specific to this writ petitioner had been earlier

passed the petitioner is entitled for the benefit of that particular order. It is

also noted that the writ appeal filed by the respondents as against the writ

petition filed by the respondents relating to this petitioner had been

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dismissed and hence the petitioner is entitled for the benefit as stated above.

05.07.2023

Index:Yes/No Internet:Yes/No Neutral Citation: Yes/No smv

1.The Chief Engineer (Personnel) Tamil Nadu Generation and Corporation Limited,

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8th Floor, N. P. K. R. R Maligai, No.144, Anna Salai, Chennai – 2.

2.The Chairman -cum- Managing Director, Tamil Nadu Generation and Corporation Limited, 10th Floor, N. P. K. R. R Maligai, No.144, Anna Salai, Chennai – 2.

3.The Superintending Engineer, Purchase and Administration, Tamil Nadu Generation and Corporation Limited, Tuticorin Thermal Power Station, Tuticorin – 4.

C.V.KARTHIKEYAN,J.

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smv

W.P.No.8242 of 2016

05.07.2023

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