Madras High Court
The Superintending Engineer vs Inspector Of Labour on 24 July, 2023
W.P.No.33635 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2023
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
W.P.No.33635 of 2016
and W.M.P.No.29006 of 2016
The Superintending Engineer,
Tiruvannamalai Electricity Distribution Circle,
TNEB (TANGEDCO),
Tiruvannamalai. ... Petitioner
Vs.
1.Inspector of Labour,
Tiruvannamalai.
2.P.Munusami
3.M.Kannan
4.Venkatesan
5.T.Gnanamurthy
6.S.Balaji
Respondents 2 to 6 Represented by Secretary,
Tamil Nadu Electricity Board Retired Labourers Union,
5/7, Chairman Govindrajulu Street,
Villupuram – 605 602. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari, calling for the records of the first Respondent,
in relation to his proceedings in Na.Ka.No.E/987 of 2014 dated 02.02.2015
and quash the same as illegal.
For Petitioner : Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co.
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1/8
W.P.No.33635 of 2016
For Respondents : Mr.M.S.Prem Kumar
Government Advocate [R1]
Mrs.S.Suseela Devi
for M/s.Yes S Associates [R2]
No appearance [R3, R5 & R6]
*****
ORDER
This Writ Petition has been filed seeking for a Writ of Certiorari, to call
for the records of the first Respondent, in relation to his proceedings in
Na.Ka.No.E/987 of 2014 dated 02.02.2015 and quash the same as illegal.
2. The case of the petitioner is that, the private respondents/workmen
filed claim petitions under Section 3 of the Tamil Nadu Industrial
Establishment (Conferment of Permanent Status to Workmen) Act, 1981 (in
short 'the Act') before the first respondent/Labour Court. The private
respondents are contract labourers and they are hired by independent
contractors and the said contract is registered contract as per the provisions of
Contract Labour (Regulation and Abolition) Act, 1970. The first
respondent/Labour Court, inadvertently adjudicated the issue and passed
award in favour of the private respondents/workmen that their claim can be
entertained in terms of Section 3 of the Act. Challenging the same, the above
writ petition has been filed.
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W.P.No.33635 of 2016
3. The learned counsel for the petitioner submits that, the private
respondents/workmen were engaged through contractor and their claim can be
adjudicated either under the Contract Labour (Regulation and Abolition) Act,
1970 or under the Industrial Disputes Act, 1947. In the present case, the first
respondent/Labour Court, without jurisdiction, adjudicated the issue under the
Tamil Nadu Industrial Establishment (Conferment of Permanent Status to
Workmen) Act, 1981, which is not sustainable. In support of his contention,
he relied upon the judgment of this Court in W.A.Nos.273 & 275 of 2020,
dated 20.01.2023. Accordingly, he prays for allowing the above writ petition.
4. The learned counsel appearing for the second respondent did not
dispute the facts submitted by the learned counsel appearing for the petitioner.
5. Heard the learned counsel for the petitioner, learned Government
Advocate appearing for the first respondent and the learned counsel appearing
for the second respondent and perused the materials available on records.
6. The Division Bench of this Court, in W.A.Nos.273 & 275 of 2020,
has passed the following judgment on 20.01.2023 :
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W.P.No.33635 of 2016
“Learned counsel appearing for the appellants-
workmen would submit that the issue involved in these
appeals is squarely covered by a Division Bench decision
of this Court in W.P.No.4061 of 2013 and Batch, dated
07.03.2022.
2. Paragraph 34 of the above said decision reads
as under :
“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
adjudicate 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 workmen 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
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W.P.No.33635 of 2016
reason that the workmen herein are those who were
not extended the benefit of settlement and,
therefore, sought claims by maintaining claim
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.”
3. In view of the above said decision of this
Court, these Writ Appeals are also disposed of. However,
we make it clear that the authority can go into the
question as to whether the contract is sham and nominal
and, if it is sham and nominal, he has no authority to
decide the issue and the matter has got to be decided
either before the Industrial Adjudicator or the authority
under the Contract Labour (Regulation and Abolition)
Act,1970. The authority is expected to decide the issue as
early as possible on day-to-day basis, without adjourning
the matter beyond seven working days at any point of
time, as the same is pending for more than 25 years. No
costs.”
7. In view of the above said decision of this Court, the impugned order
passed by the first respondent/Labour Court, dated 02.02.2015 is set aside.
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W.P.No.33635 of 2016
The private respondents/workmen are at liberty to raise a dispute either under
Section 2(k) of the Industrial Disputes Act, 1947 or under the Contract Labour
(Regulation and Abolition) Act, 1970 before the Industrial Tribunal in the
manner known to law.
8. Accordingly, the Writ Petition is allowed. No costs. Consequently, the
connected miscellaneous petition is closed.
24.07.2023
Index : Yes / No (2/2)
Speaking order / Non-speaking order
Neutral Citation Case : Yes / No
sp
To
The Inspector of Labour,
Tiruvannamalai.
https://www.mhc.tn.gov.in/judis
W.P.No.33635 of 2016
M.DHANDAPANI, J.
sp
W.P.No.33635 of 2016
24.07.2023
(2/2)
https://www.mhc.tn.gov.in/judis
W.P.No.33635 of 2016
W.M.P.No.29005 of 2016
in
W.P.No.33635 of 2016
M.DHANDAPANI, J.
Dispensed with for the present.
sp 24.07.2023
(½)
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