Madras High Court
Petchiammal vs The Management on 2 March, 2023
W.P.(MD)No.9213 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:02.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.9213 of 2018
Petchiammal ... Petitioner
Vs.
1.The Management,
Government Agriculture College and Research Centre,
Kovilpatti,
Thoothukudi District.
2.The Presiding Officer,
Labour Court,
Tirunelveli. ... Respondents
Prayer:Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the records
of the second respondent relating to the award passed in
I.D.No.76 of 2016 dated 08.09.2017, quash the same and consequently,
directing the first respondent Management to reinstate the petitioner into
service with continuity of service, backwages and all other attendant
benefits.
1/16
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W.P.(MD)No.9213 of 2018
For Petitioner : Ms.J.Roshini
for Mr.D.Srinivasaragavan
For Respondent : Mr.A.Thirumurthy for R1
R2-Court
ORDER
This Writ Petition has been filed to call for the records relating to
the award passed in I.D.No.76 of 2016 dated 08.09.2017, by the second
respondent, quash the same and direct the first respondent Management
to reinstate the petitioner into service with continuity of service,
backwages and all other attendant benefits.
2. The case of the petitioner is that the petitioner was working as
Mazdoor on daily wage basis in the first respondent Management from
November 2000 and the petitioner's last drawn wage was Rs.250/- per
day. The first respondent Management was under the control of one
D.Jawahar, Sridharan, Manager and A.Mariappan, Supervisor. The
petitioner has completed 240 days of service. As the petitioner was not
amenable to the said Mariappan, Supervisor, he used to give heavy work
to the petitioner and he made the petitioner to wait for employment. He
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W.P.(MD)No.9213 of 2018
misbehaved with the petitioner and gave sexual harassment to her.
Hence, she lodged a complaint with the Management and there was no
response to the complaint. Therefore, she gave a complaint to the
concerned Police Station. Instead of appearing before the Police for
enquiry, the said Mariappan has influenced the Management for denying
employment to her. The complaint lodged with the Revenue Divisional
Officer, Kovilpatti, did not yield any result. In the meanwhile, the first
respondent has denied employment to the petitioner from 08.12.2014.
Since the conciliation proceedings also failed, the petitioner has raised
the Industrial Dispute in I.D.No.76 of 2016. However, the Labour Court,
without verifying the records and without analyzing the materials, has
dismissed the Industrial Dispute. Hence, the present writ petition has
been filed.
3. The learned counsel appearing for the petitioner would submit
that three issues were framed before the Labour Court, viz.,
(i) whether the petitioner is a permanent employee under the
Industrial Disputes Act?
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W.P.(MD)No.9213 of 2018
(ii) whether the first respondent Management is an Industry or
not? and
(iii) whether the petitioner is entitled to get the claim made by
her?.
All the issues were held against the petitioner. However, in respect of the
second issue, already this Court in a catena of judgments has held that
the Research Institute is coming under the purview of the Industry in
terms of Section 2(j) of the Industrial Disputes Act and in support of her
contention, she relied upon the order of this Court made in
W.P(MD).No.9323 of 2014 on 02.09.2022. With regard to the first issue,
though the records were available to show that the petitioner was in
continuous employment for a period of one year, the Supervisor, who
unjustly denied the employment to the petitioner for which she made a
complaint before the Law Enforcing Agency, has wantonly not produced
the records to show that the petitioner was in continuous employment for
a period of one year. Due to the malpractice committed by the Supervisor,
the petitioner cannot establish the real factum before the Labour Court
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W.P.(MD)No.9213 of 2018
and the Labour Court has denied reinstatement to the petitioner. Hence,
she prays for passing appropriate orders.
4. Per contra, the learned counsel appearing for the first respondent
would submit that though the learned counsel appearing for the petitioner
has relied upon the decision of this Court in W.P(MD).No.9323 of 2014
in support of her contention to prove that the first respondent is coming
under the purview of Section 2(j) of the Industrial Disputes Act, as
against the said order passed by this Court, the concerned respondent has
filed the writ appeal before this Court. In respect of first issue, the first
respondent has marked two documents namely R.W.2 and R.W.4 which
clearly show that the petitioner was not in continuous employment for a
period of one year (i.e.,) 240 days. Hence, the petitioner is not entitled to
get the benefit availed under Section 25F of the Industrial Disputes Act.
Therefore, the denial of employment to the petitioner is perfectly in order
and it need not be interfered with by this Court. Hence, he prays for
dismissal of the present writ petition.
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W.P.(MD)No.9213 of 2018
5. Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the first respondent.
6. The facts in the present case are not in dispute. Admittedly, the
petitioner was employed as Mazdoor in the first respondent Management
on daily wage basis. However the first respondent Management has
denied employment to her from 08.12.2014. Therefore, she has raised an
industrial dispute in I.D.No.76 of 2016 before the second respondent and
the second respondent has rejected the claim of the petitioner.
Challenging the same, the present Writ Petition has been filed.
7. Considering the facts and circumstances of the case, the
following issues are framed:
(i) whether the first respondent Management is
coming under the definition of Section 2(j) of the
Industrial Disputes Act? and
(ii) whether the petitioner is in continuous
employment for a period of one year?.
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W.P.(MD)No.9213 of 2018
8. With regard to the first issue, Section 2(j) of the Industrial
Disputes Act makes it clear that “Industry means any business, trade,
undertaking, manufacture, or calling of employers and includes any
calling, service, employment, handicraft or industrial occupation or
avocation of workmen”. The first respondent Management is a Research
Institute and in the Research Institute, there must be manufacturing
process. Hence, the first respondent Management will come under the
purview of Industry. When an identical issue came up for consideration
before this Court in W.P(MD).No.9323 of 2014, this Court held as
follows:-
8.......The relevant portion of the order in W.P(MD)No.10691 of
2007, dated 19.07.2011 [The Management, Agricultural College and
Research Institute, Tuticorin District Vs. The Inspector of Labour,
Tuticorin and others] reads as follows:-
"9.The learned counsel for the petitioner also placed
reliance on the judgment of this court, in the case of
Management-Agricultural Research Station, Tamil
Nadu Agricultural University, Velayuthapuram,
Kovilpatti. vs. Commissioner of Labour (Authority
under Section 51 of the Tamil Nadu Shops and
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W.P.(MD)No.9213 of 2018
Establishments Act 1947), Labour Welfare Board
Buildings, D.M.S, Compound, Madras and another, in
W.P.No.7193 of 1988, dated 19.12.1997, wherein this
Court held that the Tamil Nadu Shops and
Establishment Act, 1941 were not applicable to the
petitioner's University.
10.On merit, the learned counsel for the
petitioner challenged the award, by contending, that
it was not open to the learned Labour Court, to order
permanent status to the respondent Nos.2 to 19, as
the respondents were not regularly appointed,
therefore, could not be regularized or conferred
permanent status.
11.In support of this contention, the learned
counsel for the petitioner, placed reliance on the
judgment of the Hon'ble Supreme Court in the case of
State of U.P. vs. Neerajawasthi and others [(2006)1
SCC 667]
12.On consideration I find no force in the
contention raised by the learned counsel for the
petitioner.
13.The judgment of the Hon'ble Supreme
Court, in the case of Ruth Soren vs. Managing
Committee, East I.S.S.D.A and others [2001-I-L-L-J,
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W.P.(MD)No.9213 of 2018
187] (supra), cannot advance the case of the
petitioner, as in this judgment, it has been held, that
the learned Labour Court, has jurisdiction to
adjudicate the dispute, as the University is an
industry and therefore, amenable to the jurisdiction
of the Labour Court.
14.The contention of the learned counsel for
the petitioner that the Tamil Nadu Shops and
Establishments Act, is not applicable to the
respondents 2 to 19, therefore, the order passed by
the learned Labour Court, is bad in law, also cannot
be sustained, as definition of 'industrial
establishment' under the Establishment Act, is mere
comprehensive than the definition under the Tamil
Nadu Shops and Establishment Act, 1947.
15.The definition of 'Industrial Establishment'
under the Act, would cover the petitioner's University,
once it is held to be an industry.
16.The first contention of the learned counsel
for the petitioner, therefore, cannot be accepted.
17.The second contention of the learned
counsel for the petitioner also deserves to be noticed
to be rejected for the reason that in the case of State
of U.P. vs. Neera Awasthi and others reported in
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W.P.(MD)No.9213 of 2018
(2006)1 SCC 667, the question for determination was
whether the person appointed by back door matter
could be regularized.
18.The Hon'ble Supreme Court, by placing
reliance in A.Umarani Vs. Registrar, Coop. Societies
[(2004)7 SCC 112: 2004 SCC (L&S) 918], held that
the employees are not entitled to regularization of
service.
19.This judgment will not be applicable to the
facts of the present case, as the respondents 2 to 19
are seeking enforcement of statutory right, under
statute i.e., Establishment Act, referred to above.
20.In view of the specific Act, applicable to the
State of Tamil Nadu, the judgment of the Hon'ble
Supreme Court referred by the petitioner, will have no
application."
10. In support of the claim that Educational Institutions are
covered by the Industrial Disputes Act, the order in W.P.No.
3359 of 2009, dated 28.02.2011 [Tamil Nadu Agricultural
University, Yercaud] is relied on. It is observed as follows:-
"11.The term 'Industry' is defined under Section 2(j)
of the Industrial Disputes Act, 1947. A larger Bench of the
Supreme Court had an occasion to consider the definition
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W.P.(MD)No.9213 of 2018
'Industry' found under Section 2(3) of the Industrial
Disputes act in the case of [Bangalore Water Supply and
Sewerage Board Vs. A.Rajappa and others] reported in
1978 (1) LLJ 349. In that case the Supreme Court has held
that even Educational Institutions are covered by the
Industrial Disputes Act. Hence, the second contention
raised by the Management cannot be countenanced by this
Court and it was rightly rejected by both the authorities ie.,
the first and second respondents.
12.The third submission is regarding the length of
service put in by the third and fourth respondents. During
the proceedings before the second respondent, the
workman summoned for the records relating to the
provident fund. It was resisted by the petitioner and all the
records were not submitted. This was even as per their own
admission made in paragraph 6 of the affidavit. Once the
records concerned were not produced, it is always open to
the authority to draw adverse inference and presume that
the particulars given by the workmen is correct. Hence,
there is no illegality in accepting their evidence."
15. With regard to applicability of the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen)
Act, 1981, though the learned counsel appearing for the
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W.P.(MD)No.9213 of 2018
petitioner relied on the aforesaid Judgments in support of his
case, it is found that the Judgment reported in 1998 (1) LLN 717
[Agricultural Research Station, Tamil Nadu Agricultural
University, Velayuthapuram, Kovilpatti Vs. Commissioner of
Labour, Madras and another] was distinguished in the
subsequent order of this Court in W.P(MD)No.10691 of 2007,
dated 19.07.2011 [The Management, Agricultural College and
Research Institute, Tuticorin District Vs. The Inspector of
Labour, Tuticorin and others]. In an identical case, it was held
that the Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act, 1981, applies to the Tamil
Nadu Agricultural University.
9. In view of the above order, it is made clear that the Agricultural
University and the Research Institute is coming under the definition of
Industry. Hence, the issue No.1 is answered in favour of the petitioner.
10. The next issue is as to whether the petitioner is in continuous
employment for a period of one year?.
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W.P.(MD)No.9213 of 2018
11. A perusal of R.W.2 and R.W.4, which are marked at the
instance of the petitioner by the first respondent Management and the
entire records of the employment of the petitioner, reveals that the
petitioner is not in continuous employment for a period of one year.
Hence, the petitioner is not entitled to get the benefit availed under
Section 25F of the Industrial Disputes Act, since Section 25F of the
Industrial Disputes Act makes it clear that “no workman employed in any
industry who has been in continuous service for not less than one year
under an employer shall be retrenched by that employer until the
workman has been given one month's notice in writing indicating the
reasons for retrenchment and the period of notice has expired, or the
workman has been paid in lieu of such notice, wages for the period of the
notice”. Since the petitioner has not established that she is in continuous
employment for a period of not less than one year, the procedure
contemplated in Section 25F of the Act need not be followed. Hence, the
second issue is answered as against the petitioner.
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W.P.(MD)No.9213 of 2018
12. Though the issue No.1 is answered in favour of the petitioner,
with regard to the second issue framed, since the records revealed that
the petitioner has not worked for a period of 240 days continuously, she
is not entitled for reinstatement. Hence, this Court can come to the
conclusion that the order passed by the Labour Court is perfectly in order
and no interference is warranted by this Court.
13. Accordingly, this Writ Petition is dismissed. No costs.
02.03.2023
ssb
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
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W.P.(MD)No.9213 of 2018
To
1.The Management,
Government Agriculture College and Research Centre,
Kovilpatti,
Thoothukudi District.
2.The Presiding Officer,
Labour Court,
Tirunelveli.
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W.P.(MD)No.9213 of 2018
M.DHANDAPANI,J.
ssb
W.P.(MD)No.9213 of 2018
02.03.2023
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