Madras High Court
R.Antony Raj vs / on 10 January, 2025
2025:MHC:4358
W.P. No.7400 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 26.09.2024
Pronounced on 10 .01.2025
CORAM
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
W.P. No.7400 of 2015
1. R.Antony Raj
2. N.Mahesha
3. V.Manjunath
4. V.Krishnamurthy
5. S.Ramesh
6. U.Chinnasamy
7. G.Prakasam ... Petitioners
/vs/
1. The Presiding Officer,
Labour Court,
Salem.
2. The Management,
Reckitt Benckiser,
Rep. by its Managing Director,
No.176, SIPCOT Industrial Complex,
Hosur – 635 126. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India
to issue a writ of certiorarified mandamus to call for the records from the
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W.P. No.7400 of 2015
first respondent, quash the award of the first respondent Labour Court in
I.D.No.235 of 2005 dated 18.09.2014 in so far as the petitioners are
concerned and consequently direct the second respondent to reinstate the
petitioners with full back wags, continuity of service and all other
attendant benefits.
For Petitioners : Mr.Balan Haridas
For R2 : Mr.J.Jayashankar
for M/s.T.S.Gopalan & Co.
R1 : Labour Court
ORDER
This Writ Petition has been filed by the petitioners challenging the
award of the learned Presiding Officer, Labour Court, Salem, made in
I.D.No.235 of 2005 dated 18.09.2014.
2. An Industrial Dispute has been raised by the petitioners' Union
and it resulted on a reference made by the Government on the question of
entitlement of 27 employees to get permanency. The stand taken by the
petitioners' Labour Union is that the individuals have been working in
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the company for a continuous period of 480 days within a period of two
years and hence they are entitled for permanency but their services have
been utilised without giving them the benefit of permanency.
3. On the other hand, the second respondent Management
contended that the individuals were not the employees of the company
and they were engaged only as “Trainees” and on the completion of their
training they are terminated, but not in the context of any other type of
termination of the services of the employee.
4. The Labour Court has arrived at a finding by accepting the
argument of the Management that the individuals were the Trainees of
the company and hence, they cannot claim any right of permanency on
par with the workers and thus, dismissed the dispute. Now the
individuals have filed this writ petition stating that the Union did not
come forward to challenge the award.
5. The argument advanced on behalf of the petitioners is that they
were not trainees and they have been actually engaged as workers and
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the Labour Court did not appreciate the materials available on record in
order to give them the benefit of permanency. It is further submitted that
it is wrong on the part of the second respondent Management to plead
that the individuals were only trainees. In the absence of any standing
orders or if two different standards are applied for employees of the same
company that would amount to unfair labour practice. In the absence of
any standing orders for recruiting trainees, the allegation that the
individuals have been taken as trainees cannot have any legs to stand. So
without any proof to show that the individuals are trainees, they cannot
be presumed as trainees. And they have to be treated as only employees.
As they have the eligibility to get permanency in view of their 480 days
of continuous service within a period of 2 years, they shall be given with
the benefit of permanency.
6. Mr.J.Jayashankar, the learned counsel for the second respondent,
submitted that the individuals cannot file the writ petition because they
did not figure anywhere in the reference and all along it was the Union
who canvassed the right of the individuals. It is further submitted that
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their services have been terminated during the pendency of the
conciliation but they have failed to raise any dispute under Section 2-A
by claiming that they have been illegally terminated. So the petitioners
have got no locus standi to claim that they are entitled to get the right of
permanency by stating that they have rendered continuous period of 480
days of service.
7. No doubt the petitioners' services have been terminated during
the pendency of the conciliation proceedings, however the petitioners
have not filed any 2A petition. On the other hand the Union alone has
filed Industrial Dispute and that has caused the reference to be made by
the Government to the Court.
8. In support of his contention the learned counsel for the second
respondent cited the judgment of the Hon'ble Supreme Court held in The
Management of Hanil Tube India Pvt. Limited Vs. The Competent
Authority & Inspector of Factories & others and others reported in
2012 SCC OnLine Mad 297 wherein it is held that in order to maintain a
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claim under Section 3 of the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status) Act, 1981, on the date of filing of
application, the employee should continue to be in employment. At the
time when the conciliation proceedings were pending, the petitioners
were working and during pendency of the said proceedings they have
been terminated. At no point of time the petitioners have filed any
petition before the appropriate authority under the Tamil Nadu Industrial
Establishment (Conferment of Permanent Status) Act, 1981.
9. The Trade Union had all along espousing the cause of the
petitioners and others by claiming that they have the right to be conferred
with permanency. The categorical contention of the Management before
the Labour Court was that the petitioners have been appointed only on
term basis for a period of 15 months and on the expiry of the said term,
their employment would automatically come to an end and hence there is
no question of permanency. So far as the locus standi of the petitioners to
file the writ petition is concerned, it is submitted that the Union did not
take the matter upon itself and challenge the award and hence the
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individuals have the right to challenge the same. As each individual
workman has got an issue about the permanency of his / her employment
and in the absence of any interest evinced by the Union, the individuals
should be allowed to safeguard their interest by filing this writ petition.
10. It has been the contention of the petitioners that the
Management has adopted an unethical practice of denying the benefit of
permanency and allowed them to work as short term workers / casual
employees though they have been asked to carry out the regular works
for employment. In support of his above contention, the petitioners cited
the judgment of the Division Bench of this Court held in J.Harikrishnan
and 22 others Vs. The Management of Hanil Tube Private Limited and
another reported in 2014 SCC OnLine Mad 11764 wherein it is held as
under:
“ ... 14. In order to avoid their liability under various
labour statutes employers are very often resorting to subterfuge
by trying to show that their employees are, in fact, the employees
of a contractor. It is high time that this subterfuge must come to
an end.
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Labour statutes were meant to protect the
employees/workmen because it was realised that the employers
and the employees are not on an equal bargaining position.
Hence, protection of employees was required so that they may not
be exploited.
However, this new technique of subterfuge has been
adopted by some employers in recent years in order to deny the
rights of the workmen under various labour statutes by showing
that the concerned workmen are not their employees but are the
employees/workmen of a contractor, or that they are merely daily
wage or short term or casual employees when in fact they are
doing the work of regular employees.
This Court cannot countenance such practices any more.
Globalization/ liberalization in the name of growth cannot be at
the human cost of exploitation of workers.”
In S.Vijayalakshmi v. Tamil Nadu Water Supply and
Drainage Board, represented by its Managing Director, Chennai
reported in 2005 (3) LLN 706 made the following observations:
“A bare perusal of the Section 3(1) of the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen)
Act, 1981, casts an obligation on the Employer to confer
permanent status on an Employee who has completed 480 days
work in course of two years. During the life time of the husband
of the Petitioner, no such permanent status was actually
conferred by any order of the Management. It is true that
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jurisdiction has been conferred on the Inspector to conduct
enquiry if necessary to find out whether an Employee has
completed 480 days or not. However, merely because no such
enquiry had been conducted by the Inspector, the petitioners
husband cannot be denied the benefits of the Act. In view of the
mandatory nature of the provision, it shall be taken that an
employee who had completed 480 days in a period of two years
was permanent.”
11. The claim of the petitioners is that they were given with
training and only after their completion of training they have been
appointed for fixed term. It is the claim of the petitioners that they have
been continuously worked from 09.04.2001 to 01.08.2004 and hence the
termination of their services ought not to have been done without
complying Section 25 F of the Industrial Disputes Act. But the
applicability of Section 25 F of the Industrial Disputes Act would come
into play only when the conditions prescribed therein has been fulfilled.
For the sake of convenience Section 25 F is extracted under:
“ 25F. Conditions precedent to retrenchment of workmen.
—
No workman employed in any industry who has been in
continuous service for not less than one year under an employer
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shall be retrenched by that employer until—
(a) 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;
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days' average pay
2 [for every completed year of continuous service] or any part
thereof in excess of six months; and
(c) notice in the prescribed manner is served on the
appropriate Government 3 [or such authority as may be specified
by the appropriate Government by notification in the Official
Gazette].”
12. The workmen who have filed this petition are not seen to be
workers who have continuity of service at the time when they were
retrenched.
13. The other argument of the learned counsel for the petitioners is
that in the absence of any standing orders approving short time
employment, the employment cannot be considered as short time
employment.
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14. The standing orders of the second respondent Management did
not prevent any fixed term employment and hence the claim of the
petitioner that it is contrary to the standing order cannot be accepted.
When the appointment itself is for fixed term employment, there is no
question of continuous service. Even the petitioners themselves have
admitted that they have been termed as “trainees” but they have been
discharging the permanent nature of work. It is also admitted by the
petitioners that they have received the appointment orders stating that
their services will automatically get terminated on the completion of 15
months. The petitioners have tried to include their period of training as
service period. But such a contention of the petitioners cannot be
entertained because their employment would start only subsequent to the
training. Hence, the period from 09.04.2001 to 08.04.2003 which fall
under the training period cannot be included in the services of the
petitioners. In the absence of any continuous service, the petitioners
cannot claim that the conditions of Section 25 F of the Industrial
Disputes Act, with regard to retrenchment has to be complied. Since the
petitioners are not permanent employees and their services was also not
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continuous but for a fixed term, it comes to an end automatically by the
expiry of the term and hence the petitioners cannot call it as termination
or entrenchment.
15. It is contended by the petitioners that it is the Management
which has to prove that the petitioners were trainees for a particular
period. The petitioners themselves denied the fact that they have been
called as “Trainees” for a period of two years and the appointment order
also reads so. Having got a fixed term appointment, the petitioners try to
make out a case for permanent employment and the same was disallowed
by the Labour Court. It is probably because of that the Union had lost its
interest subsequent to the dismissal of the reference.
16. The certificates given for completion of training have also
been marked as Management documents and they have been marked as
Exs.M1, M7, M23, M30, M34, M40, M45, M50, M54, M61, M58, M63,
M69, M76, M83, M89, M90, M103, M110, M117, M123, M130, M137,
M141, M146 & M150. In fact in the petitions sent by the workmen
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seeking employment, they have admitted that they have completed two
years of training and that they have to be given permanent employment.
Hence, in whatever angle it is viewed, the fact remains that the
petitioners have been rendering their services as trainees and thereafter
they have been appointed for a fixed term. As the petitioners did not
prove their claim for permanent employment, it is unreasonable for them
to claim it as a matter of right that their services should be declared as
permanent employment. Hence, I feel the award of the Labour Court
does not need any interference.
17. In view of the foregoing discussions, this writ petition is
dismissed. No costs.
10.01.2025
bkn
Index: Yes / No
Speaking order / Non-speaking order
Netural Citation Case : Yes
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R.N.MANJULA ,J.
bkn
To:
1. The Presiding Officer,
Labour Court,
Salem.
Pre-delivery order in
10.01.2025
https://www.mhc.tn.gov.in/judis
