Madras High Court
The Superintending Engineer vs The Govt. Of Tamilnadu on 21 September, 2023
W.P.No.39109 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.39109 of 2004 and
WPMP.No.46634 of 2004
1.The Superintending Engineer,
Dharmapuri Electricity Distribution Circle,
Tamilnadu Electricity Board,
Dharmapuri 636 705
2.The Chief Engineer / Personnel,
800, Anna Salai, TNEB, Chennai ... Petitioners
Vs.
1.The Govt. of Tamilnadu,
Rep. By its Secretary to Government,
Energy Department, Chennai-9
2.The Government of Tamilnadu,
Rep. By its Secretary to Labour and
Employment Department, Chennai-9
3.The Inspector of Labour,
Krishnagiri
4.K.Chinnappa
5.M.Muniraju
6.T.Kannan
7.K.V.Nagaraj
8.R.Ramakrishnan
9.Y.Muniyappa
10.G.Annaiya
11.S.Narayanan
12.K.Murugan
13.B.Annaiya
1/20
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W.P.No.39109 of 2004
14.P.Gopal
15.C.Govindasamy
16.A.Narayanan
17.K.P.Chinnasamy
18.B.K.Ganesan
19.C.Muniraman
20.K.Asvathnarayana
21.M.Thimmaraj
22.V.Gopal
23.M.Venkatesappa
24.V.Chandra
25.M.Thimmarayappa
26.N.Chikkanna
27.T.Ramesh
28.M.Vijayakumar
29.E.Chandrappa
30.M.Munichetti
31.S.Arasu
32.T.Vijayan
33.P.Iyyamperumal
34.M.Murugesan
35.C.Palanisamy
36.K.Kannaiyan
37.C.Madhaiyan
38.S.Ramachandran
39.K.Kamaraj
40.K.Murugesan
41.K.Thangavelu
42.M.Govindan
43.K.C.Arulmani
44.S.Anandan
45.P.Venugopal
46.V.Kuppusamy
47.A.Thirunavukarasu
48.B.Nataraj
49.G.Krishnan
2/20
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W.P.No.39109 of 2004
50.M.Sakkaraibani
51.S.Ganapathy
52.R.Aranganathan
53.S.Thavamani
54.C.Settu
55.G.Sakkarai
56.K.Selvam
57.S.Chinnasamy
58.C.Mani
59.N.Selvam
60.K.Pavunraj
61.P.Sivaji
62.R.Panneer
63.M.Theerthagiri
64.C.Madhu
65.P.Periyasamy
66.P.Mariyappan
67.N.Sundarrajan
68.K.Gopal
69.M.Chinnasamy
70.K.Vadivel
71.V.Govindan
72.P.Thangavel
73.A.Siddan
74.M.Siddan
75.R.Hanumanthan
76.K.Mariyappan
77.K.Gandhi
78.N.Settu
79.K.Murugesan
80.M.Elayappan
81.K.Varadharajan
82.P.Raman
83.A.Munusamy
84.C.Arumugam
85.N.Kannayeeram
3/20
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W.P.No.39109 of 2004
86.R.Madhavan
87.S.Vadivel
88.L.Palani
89.M.Loganathan
90.G.Thiruvengadam
91.M.Kanagaraj
92.T.Parusuraman
93.G.Viswanathan
94.M.Ramamoorthy
95.P.Govindasamy
96.C.Murugesan
97.T.Srinivasan
98.T.Kaliyappan
99.R.Tamilselvan ... Respondents
PRAYER: Writ Petition is filed under Article 226 of Constitution of
India praying to issue Writ of Certiorari calling for the records of the third
respondent relating to his proceedings made in petition
No.Na.Ka.A/2258/2004, dated 23.08.2004 and quash the same as illegal
and without jurisdiction.
Petitioners : Mr.A.P.Venkatesh Prasad
for M/s.T.S.Gopalan & Co.
For Respondents
For R24,26,27,69,97 : M/s.V.Pavithra
for Mr.V.Srimathi
For R1 to 3 : Mr.T.M.Rajangam
4/20
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W.P.No.39109 of 2004
For R4 to 13,15 to 17,
19 to 25,28 to 32,
34 to 40, 42 to 47,
49 to 51, 53, 55 to
67, 70 to 72, 74,76,
77,79 to 96, 98 : No appearance
R14, 18, 33, 41, 48,
52,54,68,73,75,78 : died (steps due)
ORDER
The order passed by the third respondent / Inspector of
Labour under the provisions of the Tamil Nadu Industrial Establishment
Conferment of Permanent Status to Workmen) Act is under challenge in
this Writ Petition.
2. Respondents 4 to 99 were the applicants before the Inspector of
Labour, Krishnagiri, filed an application on the basis that they were
working as Contract Labourers under the control of the Superintending
Engineer, Dharmapuri Electricity Distribution Circle and they have put in
service of 480 days within a continuous period of 24 calendar months.
Thus, they are entitled for conferment of permanent status under Section
3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent
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W.P.No.39109 of 2004
Status to Workmen) Act, 1981.
3. The learned counsel for the petitioner mainly contended that
there was no adjudication before the Inspector of Labour. It was not
established before the third respondent that Respondents 4 to 99 who had
completed the service of 480 days. In the absence of any such
adjudication, the Inspector of Labour has not authority to pass an Award
granting permanent status, which would run counter to the provisions of
the Board's Rules and Regulations. In the absence of adjudication of
facts, the authority ought not to have arrived at a conclusion that
Respondents 4 to 99 served for 480 days. Such a presumptive decision
regarding the services rendered by Respondents 4 to 99 are untenable.
4. The Hon-ble Division Bench of this Court elaborately considered
the same issue in a batch of Writ Petitions filed by The Superintending
Engineer, Erode Electricity Distribution Circle, Tamilnadu Electricity
Board Vs. Inspector of Labour and others reported in (2022) SCC
OnLine Mad 1003, wherein it was held as follows:
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W.P.No.39109 of 2004
“22. In view of the above, while we are of the
view that the Labour Inspector has the power to issue
appropriate order to grant permanency to the workmen,
it cannot be by adjudicating the complicated questions
of fact and law. A perusal of the Act of 1981 does not
provide power in Labour Inspector of the nature given
to the Industrial Adjudicator, i.e., the Industrial
Tribunal or Labour Court, as complete framework with
procedure for it has been given under the Act of 1947.
Certain provisions of the Civil Procedure Code have
been made applicable therein for proper adjudication
which does not exist under the Act of 1981.
23. If the facts of this case are taken into
consideration, we find that the Labour Inspector has
recorded his finding in reference to the Act of 1970
while adjudicating the issue. Such powers have not
been conferred on him, rather he can pass appropriate
order after summary enquiry. The view expressed by the
Single Judge of this court in the case of Superintending
Engineer, Vellore Electricity Distribution Circle,
Vellore and others, supra, is not in conflict with the
view aforesaid, rather in paragraph 35 of the said
judgment, the difference between the power of Labour
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W.P.No.39109 of 2004
Inspector and Labour Court or Industrial Tribunal
under the Act of 1947 has been made. Paragraph (35)
of judgment, referred supra, is extracted hereunder:
“35. Therefore, I am unable to accept the submission
made on behalf of the Board that the exercise of the
power by the Inspector of Labour in conferring
permanent status after holding necessary enquiries
contemplated under S. 5 read along with rule 6(4)
should be construed as arrogating to himself the powers
available to the other adjudicatory forums created
under the provisions of the Industrial Disputes Act,
1947. It will have to be stated that while the exercise of
powers vested with the Inspector under the provisions
of the Act is summary in nature, the one under the
provisions of the Industrial Disputes Act may be an
elaborate one. Nevertheless the same does not mean
that by exercising the power under the provisions of the
Act the Inspector of Labour would be trespassing into
the adjudication process contemplated under the
provisions of the Industrial Disputes Act. In this
context, if the judgment of the Supreme Court in
Nirchiliya case [1990 (2) L.L.N. 4] (vide supra) is
applied, it can be safely held that where there is no
prohibition under the provisions of either the Industrial
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W.P.No.39109 of 2004
Disputes Act or the Act, exercise of the power in the
manner in which it can be done by the Inspector of
Labour under the Act cannot be found fault with. It will
have to be stated that such an exercise would be well
within the statutory limitations provided under the Act.
In fact, in the above~referred to judgment of the Hon-
ble Supreme Court, the question for consideration was
whether the workmen who initially raised an industrial
dispute under the Industrial Disputes Act and who did
not pursue it till its logical end when chose to move the
authority under the then Madras Shops and
Commercial Establishment Act, the Hon-ble Supreme
Court held that in the absence of any prohibition under
either of the enactments, such a course adopted by the
workmen cannot be faulted. Therefore, applying the
said ratio to the case on hand, it can be safely held that
the concerned workmen here were placed in a better
footing when they chose to straightaway move the
Inspector of Labour under the Act, inasmuch as
according to the workmen, having regard to the facts
prevailing as on date, they were entitled for the
conferment of permanent status as provided under the
Act. If such a claim of the workmen was not factually
maintainable, it was for the Board to have resisted the
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W.P.No.39109 of 2004
said claim with all available materials and could have
convinced the Inspector of Labour as the claim ought
not to have been countenanced. The Board having
miserably failed to perform its duties in the manner
expected of it, it cannot be now allowed to contend or
complain against the powers exercised by the Inspector
of Labour which was within the provisions of the Act. In
this context, if the judgment of the Division Bench of
this Court in Metal Powder Company, Ltd. case [1985
(2) L.L.N. 738] (vide supra), is applied, then also it can
be safely held that the Inspector of Labour was well
within his jurisdiction in holding the proceedings in the
manner it was held and in passing the order by
directing the petitioner/Board to confer permanent
status on the workmen.“
[emphasis supplied]
24. The Labour Inspector vested with the power
under the Act of 1981 is said to be having a summary
power of enquiry, while an elaborate adjudication of
questions of fact and law can be only under the Act of
1947.
25. In view of the above, we can safely hold that
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W.P.No.39109 of 2004
the Labour Inspector can exercise jurisdiction only in
the nature of summary enquiry, while a case involving
complicated question of fact and law to be left for its
adjudication under the Act of 1947. The Labour
Inspector can exercise his power under the framework
of the Act of 1981. He has no power to adjudicate the
issue in reference to other statutes, which includes the
Act of 1970.
26. Since we have analyzed the issue aforesaid,
we would like to refer to the impugned order of the
Labour Inspector to find out as to whether he has
caused a summary enquiry or has travelled beyond his
jurisdiction to adjudicate the questions of fact and law
pertaining to the other statute.
27. A perusal of the order passed by the Labour
Inspector in the case on hand shows an adjudication of
the issue in reference to the Act of 1970 also, though it
was not within his competence. He is not having powers
to comment on the nature of employment and the policy
adopted by the petitioner corporation. He was required
to simply see whether the workman has rendered
continuous service for 480 days in 24 calendar months.
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W.P.No.39109 of 2004
Thus, on the aforesaid issue, the interference therein
may require to be made.
28. The other ground for challenge to the order
of the Labour Inspector is that without any discussion to
show continuous service of an employee for 480 days in
24 calendar months, the finding has been recorded.
The order under challenge does not refer to the 24
calendar months of each workman to record its finding
about his continuous working for 480 days therein by
giving details of the days and months.
29. From a perusal of the order of the Labour
Inspector, we find that after referring to the testimonies
of the parties and the documents, a finding has been
recorded, without disclosing the period of 24 calendar
months and 480 days working of each workman therein.
The finding has been recorded in a superficial manner.
The aforesaid could not be contested by learned
counsel appearing for the workmen. However, it is
submitted that while setting aside the order passed by
the Labour inspector, the matter may be remanded with
a direction for fresh enquiry with liberty to the workmen
to produce the material.
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W.P.No.39109 of 2004
30. After going through the order passed by the
Labour Inspector, we find that the Labour Inspector has
not recorded his finding in reference to each workman
about his continuous service for 480 days in 24
calendar months. Thus, we need to cause interference
with the order.
31. As we recorded a finding about the
jurisdiction of the Labour Inspector and applicability of
the Act of 1981, we accept the argument of learned
counsel for the respondents to remand the case for fresh
enquiry by the Labour Inspector to find out the
continuous working of each employee for continuous
period of 480 days in a period of 24 calendar months
for passing the appropriate orders.
32. At this stage, learned counsel for the
petitioner submitted that even if the matter is remanded,
it should be with a clarity of the fact that the benefit
under Section 3 of the Act of 1981 be given only if the
workman is still in employment and not otherwise. It is
also keeping in mind the terms of settlement and
thereby the benefit may not be extended beyond what
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W.P.No.39109 of 2004
has been provided in the settlement.
33. The argument aforesaid has been contested.
It is submitted that even if any of the workman is not in
service, though stated to be in service, the benefit of
permanency under Section 3 of the Act of 1981 being
automatic should not be denied to any of the workman if
discontinued, rather it should be with liberty to
challenge the discontinuance, but till then and for the
intervening period, he remained in service after
becoming eligible for permanency, consequential
benefits may be allowed.
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
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W.P.No.39109 of 2004
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 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
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W.P.No.39109 of 2004
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 to the Labour Inspector for passing
orders afresh, after summary enquiry.“
5. As per the principles laid down by the Division Bench of this
Court in the aforesaid case, Respondents 4 to 99 are bound to establish
that they have served in the Board's establishment and they are entitled
for absorption as per 12(3) Settlement and the Board's proceedings issued
based on the settlement.
6. Regarding the terms and conditions of settlement for permanent
absorption, Respondents 4 to 99 have to approach the competent Labour
Court for complete adjudication of facts and the disputed issues.
Therefore, the Inspector of Labour cannot entertain an application and
pass an order granting permanent status which is otherwise not in
consonance with the 12(3) settlement entered into between the Electricity
Board and Workers' Union for the purpose of permanent absorption.
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W.P.No.39109 of 2004
7. Thus, an adjudication under the Industrial Disputes Act became
imminent for the purpose of crystallizing the rights of the workmen. Once
the right are crystallized, then only they are entitled for the relief of
permanent absorption, but not otherwise. Thus, Respondents 4 to 99 are
at liberty to adjudicate the issues in the manner known to law.
8. The learned counsel for the petitioner made a submission that as
per Form-1 of the Tamil Nadu Industrial Establishment Conferment of
Permanent Status to Workmen) Act, 1981, the register of a workman is to
be maintained by the employer concerned. Column 4 in Form-1 stipulates
that “whether permanent, temporary, casual, badli, or apprentice other
than those covered under the Apprentice Act, 1961“.
9. A perusal of the Form reveals that the Contract Labourers are
not even included in the statutory form contemplated under the
Conferment of Permanent Status Act. When there is no provision for
registration of Contract Labourers under the provisions of the Act, the
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W.P.No.39109 of 2004
Inspector of Labour is not empowered to pass an order under the
provisions of the Act granting permanent status to the workmen. Thus,
the very exercise of power is without jurisdiction and therefore, the order
passed by the third respondent is liable to be set aside.
10. Accordingly, the impugned order passed by the third
respondent dated 23.08.2004 is hereby quashed and this Writ Petition
stands allowed. Consequently, connected miscellaneous petition is
closed. There shall be no order as to costs.
21.09.2023
Internet: Yes
Index: Yes/No
Speaking/Non-speaking order
lok
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W.P.No.39109 of 2004
To
1.Secretary to Government,
The Govt. of Tamilnadu,
Energy Department, Chennai-9
2.Secretary to Labour and
Employment Department ,
The Government of Tamilnadu,
Chennai-9
3.The Inspector of Labour,
Krishnagiri
4.The Government Advocate,
High Court, Madras.
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W.P.No.39109 of 2004
G.K.ILANTHIRAIYAN, J.
lok
W.P.No.39109 of 2004
21.09.2023
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