Madras High Court
The Management vs The Assistant Commissioner Of Labour ... on 29 May, 2025
W.P.No.24333 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
RESERVED ON : 23.04.2025
PRONOUNCED ON : 29.05.2025
PRESENT:
THE HON’BLE DR. JUSTICE A.D. MARIA CLETE
W.P.No. 24333 of 2021
and
W.M.P.Nos.25640 of 2021, 2623,
2625, 2627, 2628, and 2629 of 2022
The Management,
Tiruchengode Agricultural Producers Co-operative
Marketing Society Limited,
Vellore Road, Tiruchengode – 637 211.
Namakkal District. …. Petitioner
Vs.
1.The Assistant Commissioner of Labour (Implementation)
[The Authority constituted under the Tamil Nadu
Industrial Establishments (Conferment of Permanent
Status to Workmen) Act, 1981], Namakkal – 637 003.
2. S.Dakshinamoorthy,
S/o. Sakthivel,
2/420 D, Vetri Nagar – 1,
Andipalayam Post,
Tiruchengode – 637 214, Namakkal District.
3. V.Boopathi Raja,
S/o. Veerasamy,
M-119, Koottapalli Colony,
Koottapalli Post,
Tiruchengode – 637 214. Namakkal District.
1/43
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W.P.No.24333 of 2021
4. M.Arumugam,
S/o. Marimuthu,
9/65, Adi Dravidar Street,
Kanakkapatty, Vattur Post,
Tiruchengode – 637 205, Namakkal District.
5. K.Muruganantham,
S/o. Kathirvel
45/113, Naripallam, Anna Street,
Tiruchengode – 637 211, Namakkal District.
6. S.Senthilkumar,
S/o. Selvaraj,
109/121, Puthu Puliyampatti,
Sithallanthur Post,
Tiruchengode – 637 201, Namakkal District. …..Respondents
Prayer in W.P.
To issue a Writ of Certiorari or any other appropriate writ and call for the
records connected with Ref.No.Na.Ka.No.39 of 2015 and quash the Order
dated 16/09/2021 passed by The Assistant Commissioner of Labour
(Implementation), Namakkal [The Authority constituted under the Tamil Nadu
Industrial Establishments (conferment of Permanent Status to Workmen) Act,
1981], 1st Respondent herein, and thus render justice.
Prayer W.M.P.No.25640 of 2021
To grant stay of order bearing Ref. No. Na.Ka.No.39/2015 dated 16/09/21
passed by the 1st respondent. The Assistant Commissioner of Labour
(Implementation), (The Authority constituted under the Tamil Nadu Industrial
2/43
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W.P.No.24333 of 2021
Establishments conferment of Permanent Status to Workmen) Act 1981,
Namakkal, pending disposal of the writ petition and thus render justice.
Prayer W.M.P.No.2623 of 2022
To direct the 1st Respondent / Writ Petitioner Society to continue to give
employment to the Petitioner / 2nd Respondent herein, pending final disposal of
this Writ Petition and render justice.
Prayer in W.M.P.No.2625 of 2022
To direct the 1st Respondent / Writ Petitioner Society to continue to give
employment to the Petitioner / 3rdRespondent herein, pending final disposal of
this Writ Petition and render justice.
Prayer in W.M.P.No.2627 of 2022
To direct the 1st Respondent / Writ Petitioner Society to continue to give
employment to the Petitioner / 4thRespondent herein, pending final disposal of
this Writ Petition and render justice
Prayer in W.M.P.No.2628 of 2022
To direct the 1st Respondent / Writ Petitioner Society to continue to give
employment to the Petitioner / 5th Respondent herein, pending final disposal of
this Writ Petition and render justice.
Prayer in W.M.P.No.2629 of 2022
To direct the 1st Respondent / Writ Petitioner Society to continue to give
3/43
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W.P.No.24333 of 2021
employment to the Petitioner / 6th Respondent herein, pending final disposal of
this Writ Petition and render justice.
Appearance of Parties:
For Petitioner : Ms.Lakshmi Priya, Advocate
For M/s. Gupta and Ravi, Advocates
For Respondent 1 : Mr. R.Kumaravel, AGP
For Respondents 2 to 6 : M/s. K.Elango, G.Chamki Raj, M.Thenmozhi,
M.Mahalakshmi and M.Balaji, Advocates
JUDGMENT
Heard.
2.The Petitioner is the Tiruchengode Agricultural Producers Co-operative
Marketing Society Limited. In the present writ petition, the Petitioner
challenges the order dated 16.09.2021 passed by the 1st Respondent, the
competent authority under the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act, 1981 (hereinafter referred
to as the “Permanent Status Act”). By the said order, the Authority directed the
Petitioner Society to confer permanent status upon Respondents 2 to 6. In the
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operative portion of the order, the Authority recorded the respective dates of
engagement of the workmen, the dates on which they had completed 480 days
of service within a continuous period of 24 calendar months, and the dates from
which they were to be deemed permanent. The Authority further directed that
the order be implemented within a period of 30 days.
3.When the writ petition was listed on 17.11.2021, this Court ordered
notice to the Respondents. Pursuant to such notice, the contesting Respondents
entered appearance and filed five miscellaneous petitions seeking a direction to
the Petitioner Society to provide them employment pending final disposal of
the writ petition. The learned Judge, upon hearing the parties, passed the
following order on 18.07.2022:—
“The learned counsel for the respondents 2 to 6 / employees would
submit that the petitioner / Management have not permitted them to
attend the work and therefore, they violated the order passed by the
first respondent/Assistant Commissioner of Labour. In view of the
writ petition is pending, the respondents 2 to 6 / employees are
unable to seek remedy before the Assistant Commissioner of
Labour.
2. As of now, no interim order has been passed by this Court.
Therefore, it is open to the respondents 2 to 6/employees to
approach the concerned authority for the above said claim in
accordance with law and in the light of the order passed by the
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Commissioner of Labour.”
4.Separate counter affidavits dated 04.01.2022 were filed on behalf of the
Respondents. When the matter was taken up on 05.11.2024, it was directed to
be placed before the National Lok Adalat scheduled for 14.12.2024. However,
as the matter could not be amicably settled, it was returned to the regular court
for final adjudication. Thereafter, both sides advanced detailed arguments and
relied upon several judicial authorities in support of their respective
contentions.
5.The case of the Management is that the Petitioner Society also
functions as a distributor of Indane Gas Cylinders manufactured by the Indian
OilCorporation and maintains a godown for storing such cylinders. For the
purpose of distributing the cylinders to consumers, the Society engaged seven
auto-rickshaw owners to undertake home delivery. Respondents 2 to 6 were
among those so engaged for distribution purposes. It is the Petitioner’s case that
these individuals were paid Rs. 11.80 per cylinder delivered and were under no
obligation to report for duty at the Society’s premises. They were neither paid
regular wages nor was any attendance or wage register maintained in respect of
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their services. The Management contends that Respondents 2 to 6 are not
employees of the Society and that no relationship of employer and employee or
master and servant exists between them.
6.It is the further case of the Petitioner Society that all recruitments are
made only through direct appointment and that the appointees are required to
possess the prescribed co-operative training qualifications. In deviation from
this process, Respondents 2 to 6 submitted individual applications dated
08.01.2015 before the 1st Respondent, seeking conferment of permanent status.
Upon receipt of notice in the applications, which were registered as CPS Nos. 1
to 5 of 2015, the Petitioner filed a counter statement dated 18.09.2015. Along
with the counter statement, the Petitioner enclosed a circular issued by the
Registrar of Co-operative Societies, prescribing norms for fixation of staff
strength and pay scales based on the recommendations of the competent
committee constituted for that purpose.
7.Upon receipt of the counter statement filed by the Petitioner Society,
Respondents 2 to 6 filed an application seeking to amend their original
statement. In the amended statement, they contended that they were also
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receiving leave salary and bonus, and were covered under the Employees’
Provident Fund and Employees’ State Insurance schemes. Accordingly, they
sought regularisation of their services for the period from 01.10.2012 to
01.09.2014. They specifically denied the Management’s assertion that no
attendance register was maintained. In response to the amendment application,
the Petitioner Society filed a counter affidavit opposing the same. During the
proceedings before the 1st Respondent, Respondents 2 to 6 produced twelve
documents in support of their claim, which were marked as Exhibits P1 to P12.
They were also subjected to cross-examination by the Petitioner Management
on multiple occasions. However, the Management did not adduce any oral
evidence nor produce any documentary material in rebuttal.
8.The 1st Respondent, upon consideration of the materials placed on
record, found that Respondents 2 to 6 were remunerated on a piece-rate basis
and were also covered under the Provident Fund and Employees’ State
Insurance schemes. On that basis, the Authority concluded that a relationship of
master and servant did exist between the Petitioner Society and the said
Respondents. With regard to the contention raised by the Petitioner concerning
the fixation of staff strength under Rule 149 of the Tamil Nadu Co-operative
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Societies Rules, the Authority invoked Section 3 of the Permanent Status Act,
which contains a non obstante clause overriding any contrary provisions.
However, while quoting Section 3 in the order, the Authority did not refer to
Explanation II appended to the said provision, which had been inserted by the
Tamil Nadu Amendment Act 44 of 1985. Explanation II clarifies the meaning
of the expression “law” occurring in Section 3(1) in the following terms:—
“For the purposes of this section, ‘law’ includes any award,
agreement, settlement, instrument or contract of service whether
made before or after the commencement of this Act.”
9.The insertion of this Explanation by way of amendment carries with it a
legislative history. Originally, the term “law” in Section 3 of the Act did not
encompass settlements arrived at between the parties. When the scope of this
expression came under judicial scrutiny, a Division Bench of this Court, despite
the State Government’s defence of the enactment, interpreted the term “law” as
not including any private settlement or agreement between the parties. In Metal
Powder Co. Ltd., Tirumangalam v. State of Tamil Nadu, reported in 1985
(II) LLJ 376 (Mad DB), the Court held as follows:—
“The learned Advocate-General has contended that the impugned
legislation is a welfare legislation intended to bring about an
improvement in the conditions of labour and that the permissible
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action may be so construed as to give effect to the object of the
legislature and as far as possible the intention of the legislature
should not be allowed to be defeated.”
“It appears to us that when the legislature incorporated a non-
obstante clause in S. 3(1) and restricted the non-obstante clause
only to "any law for the time being in force," S. 3(1) must be
construed as evincing an intention that S. 3(1) will operate
notwithstanding any statutory law to the contrary. Whenever the
legislature has intended that either awards or agreements or
decrees of courts were to be superseded by legislation, reference
was always made in the non-obstante clauses to such
agreements.”
“We are bound to take notice of the legislative practice that
where the intention of the legislature is that a law is to have effect
notwithstanding any award, agreement or contract of service,
such an intention is expressed in clear and unambiguous words.
Consequently, in the absence of reference to an award, an
agreement or a contract of service in S. 3(1) and restricting the
operation of the non-obstante clause in S. 3(1) only to "anything
contained in any law for the time being in force", we must accept
the contention of the learned counsel for the petitioner that S.
3 will not supersede a settlement between the employer and
the employees in so far as the subject-matter of the settlement is
conferment of permanent status to the
workmen.” [Emphasis added]
10.In Nellai Cotton Mills Ltd. v. State of Tamil Nadu, reported in
1987 W.L.R. 258, a Division Bench of this Court partially struck down the
operation of Section 3 of the Act. To overcome the legal impediments arising
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from such judicial interpretation, the Tamil Nadu Legislature enacted the Tamil
Nadu Amendment Act 44 of 1985, inserting Explanation II to Section 3. The
Statement of Objects and Reasons accompanying the Amendment Act set out
the legislative intent in the following terms:—
"STATEMENT TO OBJECTS AND REASONS
The Tamil Nadu Industrial Establishments (Conferment
of Permanent Status to Workmen) Act, 1981 (Tamil Nadu
Act 46 of 1981) has been enacted with a view to provide
for the conferment of permanent status to workmen in the
industrial establishments in the State of Tamil Nadu. The
judgment of the Madras High Court rendered in a batch of
Writ Petitions (Nellai Cotton Mills Ltd. Tirunelveli v.
State of Tamil Nadu, (Writ Petition No. 5910 of 1982
etc.) had given rise to certain practical difficulties in
implementing the provisions of the said Act. It has,
therefore, been decided to amend section 3 of the said Act
to remove the difficulties caused by the said judgment and
confer the intended benefits on workmen.
2. The Bill seeks to achieve the above object."
11.The State of Tamil Nadu carried the matter in appeal to the Supreme
Court, which ultimately upheld the validity of the provisions of the Act,
including Explanation II to Section 3, as well as the legislative deeming fiction
relating to conferment of permanent status. In State of Tamil Nadu v. Nellai
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Cotton Mills Ltd., reported in (1990) 2 SCC 518, the Hon’ble Supreme Court
explained the scope and effect of Explanation II in the following terms:—
“When the Act has been judicially interpreted, Courts may study
the subsequent action or inaction of the legislature for clues as to
legislative approval or disapproval of judicial interpretation. After
the statute has been judicially interpreted in a certain way and if
the legislature by taking note of the judgment amended the statute
appropriately so as to give it a different meaning from the one
asserted by the courts, or not giving any different meaning from
the view taken by the court, it may be argued with some
justification that the legislature has expressly or by implication
ratified the judicial interpretation. In the instant case, the
legislature has expressly taken note of the High Court verdict and
removed the practical difficulties caused thereby in implementing
the provisions of the Act, by appropriate amendments”
12.In this context, it is relevant to refer to the Statement of Objects and
Reasons underlying the enactment of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46
of 1981), which received the assent of the President on 05.08.1981. The
Objects and Reasons are as follows:—
“Many workers in industrial establishments are being kept under
temporary rules and on that pretext are being denied of various
statutory as well as non-statutory benefits which are given to
permanent workers. Mainly, in many establishments non-
permanent workers are given consolidated wages which are far
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below the occupational wages and do not carry the benefit of
dearness allowance paid to permanent employees. Similarly they
are denied various other benefits like payment of festival, cyclone
and marriage advances, payment of ex-gratia over and above the
statutory bonus, supply of uniforms and tea, preference for the
dependants of the employees in the matter of employment etc. In
order to curb various unfair labour practices and following the
decision at the 25th meeting of the State Labour Advisory Board
the Government have decided to undertake a special legislation to
confer permanent status to the workers in various industrial
establishments who have put in a service for a period of four
hundred and eighty days in a period of twenty-four calendar
months in such industrial establishments.
2. The Bill seeks to give effect to the above decision.
(2) It extends to the whole of the State of Tamil Nadu.
(3) It applies to every industrial establishment (not being an
establishment of a seasonal character or in which work is
performed only intermittently) in which not less than fifty
workmen were employed on any day of the preceding twelve
months. If any question arises whether an industrial
establishment is of a seasonal character or whether work is
performed therein only intermittently the decision of the
Government thereon shall be final:
Provided that the Government may, by notification, apply the
provisions of this Act to any industrial establishment employing
such number of workmen less than fifty as may be specified in
the notification.
(4) It shall come into force on such date as the Government may,
by notification, appoint:
Provided that nothing contained in this Act shall apply to any
industrial establishment until the expiry of a period of two years
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from the date of its establishment.”
13.The object of the Permanent Status Act is unequivocal and well-
defined. With regard to its applicability to Co-operative Societies, a Division
Bench of this Court in L. Justine v. Registrar of Co-operative Societies,
reported in 2002 (4) CTC 385, held as follows:—
“The Permanency Act of 1981 is also an Act enacted by the State and
received the President's assent. Section 3 of the Act contains non
obstante clause and provides protection to workmen, who are in
continuous service for a continuous period of 480 days in a period of
24 calendar months in an industrial establishment, thus conferring a
status of permanency. 'Industrial establishment' is defined in
subSection (3) of Section 2 of the Act and in clause (e) thereof, an '
establishment' as defined in clause 2 (6) of the Tamil Nadu Shops and
Establishments Act, 1947, is defined to be an industrial
establishment. If we go to Section 2 (6) of the Tamil Nadu Shops and
Establishments Act, it is clear that the word 'establishment' therein
takes in cooperative society also. As such, there cannot be any doubt
regarding the applicability of the Permanency Act of 1981. The word,
'industry' defined in Section 2 (j) (q) under the Industrial Disputes
Act, 1947 also makes the cooperative societies susceptible to the Act
of 1947. Thus, all such workmen belonging to a class and are
afforded protection, are entitled for the benefits of the Permanency
Act of 1981 as also the Industrial Disputes Act of 1947.”
14.However, in the very same judgment, the Division Bench also
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clarified that, notwithstanding the provisions of the Permanent Status Act, the
Court cannot issue directions of the following nature:—
“…the Permanency Act of 1981 or Industrial Disputes Act, 1947,
cannot be pressed into service. Non-obstante clause in the above
enactments have to be read down to be in consonance with the legal
principles enunciated by the Supreme Court in ASHWNI
KUMAR's (1997 (2) SCC1)
In view of what is stated supra, we hold:
(i) that G.O. Ms. No.86, Cooperation, Food and Consumer Protection
Department, dated 12.3.2001, has got the effect of only authorising
the regularisation of the employees recruited by the cooperative
societies for the period from 9.7.1980 to 11.3.2001 exempting the
intervention of employment exchange;
(ii) that G.O. Ms. No.86, Cooperation, Food and Consumer
Protection Department, dated 12.3.2001, shall not operate for
regularisation of any employee recruited by the cooperative societies
in violation of sub-Rule (1) of Rule 149 of the Tamil Nadu
Cooperative Societies Rules, as amended by G.O. Ms. No.212,
Cooperation, Food and Consumer Protection Department, dated
4.7.1995;”
15.In support of his submissions, learned counsel for the Petitioner
Management, relying on the aforementioned decisions, also placed reliance on
a judgment of the Division Bench of this Court in Management of
Tiruchengode Agricultural Producers Co-operative Marketing Society
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Ltd. v. Inspector of Labour, rendered in W.A. No. 1082 of 2014, dated
20.03.2024 [(2024) MHC 1579]. In that decision, the Division Bench,
following the ratio laid down in Justine, set aside the order passed by the
Inspector of Labour directing regularisation of Khalasis engaged by the
Society, and held as follows:—
“…the appointments were to be only strictly as per the approved
special bye-laws and not otherwise. Compassion cannot displace
the essential legal requirements and as already stated above,
essential legal requirements are the cadre strength and the
qualifications and these cannot be bye- passed and any
infraction in observance of the said essential requirement, makes
the action of the Appointing Authority illegal. Neither the
Permanency Act of 1981 nor the Industrial Disputes Act, 1947,
imply that regardless of the illegal nature of appointments even
at the entry stage, statutory protection is afforded under the
above Acts after the completion of the man-days, be it 480 or
240 prescribed under the above statutes. The above two
enactments have to be read and understood in the context that if
only the appointments are authorised and the employees
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positions beyond the respective mandays prescribed, the
workmen get right to continue further on the legal presumption
that the temporary posts are allowed to be treated as permanent.
But if the appointment itself is illegal, then the Permanency Act
of 1981 or the Industrial Disputes Act, 1947 cannot be invoked
at all.
19. In view of the authoritative pronouncement of the Supreme
Court, which is the law of the land under Article 141 of the
Indian Constitution, and as the facts of this batch of cases
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clearly attract the legal principles enunciated by the Supreme
Court, we hold that the appointments of the staff made to the
cooperative societies by the elected bodies or the officers in
charge, in violation of the cadre strength or the prescriptions of
the educational qualifications, cannot stand and are held to be
null and void. As already stated above, the Permanency Act of
1981 or Industrial Disputes Act, 1947, cannot be pressed into
service. Non-obstante clause in the above enactments have to be
read down to be in consonance with the legal principles
enunciated by the Supreme Court in Ashwini Kumar's Case,
(supra). Hence, the settlements entered under Sections 12 or 18
of the Industrial Disputes Act, have got to no statutory force and
are unenforceable.”
16.On the strength of the aforesaid decision, learned counsel for the
Petitioner sought to have the impugned order passed by the Inspector of Labour
set aside. To appreciate the context of the case considered by the Division
Bench, it is pertinent to refer to the contentions advanced by the trade union on
behalf of the workmen, which were recorded in paragraphs 7 and 8 of the said
judgment, as extracted below:—
“Mr.K.Srinivasamurthy, appearing on behalf of the 2nd
respondent/Labour Union would oppose by stating the members of
the 2nd respondent/Labour Union are engaged as Khalasis and their
services are utilised for loading and un-loading of food products and
other essential commodities.
Mr.K.Srinivasamurthy, would mainly contend that the regular
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employees are not engaged for performing loading and un-loading
job and only the Khalasis are serving as load men in the
Appellant/Society. When there are permanent nature of job is
available, the services of the petitioners are to be absorbed under the
provisions of the Tamil Nadu Co-operative Societies Act and Rules.
No action has been taken by the Management to absorb the Khalasis
as permanent employees and they are continuing only as daily wage
employees. Therefore, actions are to be initiated to fix cadre
strength for the permanent absorption of these Khalasis in the
appellent/management.”
17.In the present case, the principal contention advanced on behalf of the
Petitioner Society is that the contesting Respondents are not its employees, are
not under its administrative control, and that no employer-employee
relationship exists between them. Although certain vague doubts were
expressed by learned counsel regarding the applicability of the Permanent
Status Act to the Society, this issue is no longer res integra. As already held,
the Society clearly falls within the ambit of the Permanent Status Act. The
Petitioner Society is engaged in the business of wholesale procurement and
operates several retail outlets for sale. It also runs various divisions, including a
consumer division, public distribution system, pharmacy division, LPG gas
distribution, fair price shops, milk division, Servo Oil division, and even
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operates petrol and diesel retail outlets. As reflected in the 85th Annual Report
dated 29.09.2015 (filed in the typed set), the annual profit under the LPG
division, expressed in lakhs, is as follows:—
(IN LAKHS)
Sl.No. Description Op.Balance Procurement Sale Final Total
balance Profit
5 LPG 5.18 1392.96 1511.88 9.96 76.08
gas
18.In the circular issued by the Registrar of Co-operative Societies in
Na.Ka.65288/2014/MS2 dated 05.02.2016, the cadre strength for various
marketing societies was delineated under Chapter V. With specific reference to
LPG gas distribution, the sanctioned strength was prescribed as follows:—
Cadre strength in other units.
1. Sales outlet LPG gas unit
2. Profit margin 7%
3. Sale turnover for 2013-14 (a) 2 -5 crores (b) 5-10 crores (c ) 10-
15 crores
4. In respect of staff strength for the unit which is having 10-15
crores as follows: -
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(1) Senior Assistant : 1
(2) Assistant : 1
(3) Junior Assistant : 3
(4) Sales Assistant : 6
In addition, the footnote to the said paragraph contains the following statement:
“15/nfhof;F nky; g[us; tzpfk; nkw;bfhs;Sk; tpw;gid gpupt[fspy;
Fiwe;jgl;rk; MW khj';fSf;F bjhlu;rr; pahf (Consecutive six
months) khje;njhWk; U:/3 nfhof;F Fiwahky; tpw;gid nkw;bfhs;Sk;
tpwg; id gpupt[fSf;F kl;Lk; xt;bthU tpwg; id gpuptpw;Fk; xt;bthU
K:d;W nfhof;Fk; kdpj Mw;wy; Kfik (Out Sourcing) K:yk; xU
tpwg; id cjtpahsu; gzpepiyapy; kl;Lk; TLjy; gzpahsu;fis
epakdk; bra;a mDkjpf;fg;gLfpwJ/”
19.This clearly implies that wherever the turnover exceeds Rs. 15 crores,
one additional sales assistant may be appointed through outsourcing for every
subsequent Rs. 3 crores of turnover. It is pertinent to note that the Industrial
Disputes Act, under Section 2(r)(a), defines “unfair labour practice” with
reference to the practices enumerated in the Fifth Schedule to the Act. Part I
ofthe Fifth Schedule lists unfair labour practices on the part of the employer.
Item 10 of Part I reads as follows:—
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“To employ workmen as “badlis”, casuals or temporaries
and to continue them as such for years, with the object of
depriving them of the status and privileges of permanent
workmen”
20.Under the guise of cadre strength fixation, it is not open to the
Registrar of Co-operative Societies or any other competent authority to exclude
gas cylinder delivery personnel from the sanctioned strength, thereby enabling
the Society to resort to outsourcing such labour. It is precisely to prevent such
denial of legitimate labour rights that the concept of “unfair labour practices”
was incorporated in the Fifth Schedule to the Industrial Disputes Act. The
commission of such practices is expressly prohibited under Section 25-T, and a
penal consequence is prescribed under Section 25-U of the Act. The text of
Sections 25-T and 25-U is as follows:—
“Section 25-T: Prohibition of unfair labour practice:- No employer
or workman or a trade union, whether registered under the Trade
Unions Act, 1926 (18 of 1926), or not, shall commit any unfair
labour practice.
Section 25-U : Penalty for committing unfair labour practices: - Any
person who commits any unfair labour practice shall be punishable
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with imprisonment for a term which may extend to six months or
with fine which may extend to one thousand rupees or with both.”
21.The documentary evidence produced by the contesting Respondents
clearly established that there was no intermediary between them and the
Society, and that their engagement was directly by the Society on a piece-rate
basis. The Authority, upon appreciation of the said evidence, recorded the
following findings in the impugned order dated 16.09.2021:—
“,t;tHf;fpy; vjpu;kDjhuu; epWtdk; kDjhuu;fSf;F xg;ge;j
mog;gilapyhd Cjpak; (Piece Rate) kl;Lnk tH';fp te;jJ
,Ujug;g[ Mtz';fspd; K:yk; cWjp bra;ag;gl;lJ/ nkw;fz;l
tiuaiwapypUe;J vjpu;kDjhuu; epWtdj;jpy; vt;tpjkhd
xg;ge;jjhuu;fSk; ,y;iy vdt[k;. kDjhuu;fs; vjpu;kDjhuu;
epWtdj;jpy; xg;ge;j mog;gilapy; xg;ge;jjhuu; K:yk;
gzpg[upe;Js;shu;fs; vd;gij vjpu;kDjhuu; epWtdk; epU:gpf;f
jtwpas [ s
; jhYk;. kDjhuu;fs; vjpu;kDjhuu; epu;thfj;jpw;Fupa
epue;juj; jd;ik bfhz;l gzpfis bra;J tUtjhYk;. ,e;j
epu;thfk; tH';Fk; Typiag; bgw;Wf;bfhz;L tUtjhYk;.
,j;bjhHpyhsu;fs; vjpu;kDjhuu; epu;thfj;jpd; bjhHpyhsu;fs; jhd;
vd;Wk;. epu;thfj;jpw;Fk; ,j;bjhHpyhsu;fSf;Fkpilna
ntiyaspgg; tu;?ntiyahs; vd;w cwt[ cz;L vd;Wk;
jPuk; hdpf;fpd;nwd;/”
“//kDjhuupd; rhd;whtz';fs; 1.2.7.8 Mfpait epu;thfj;jpy;
guhkupf;fg;gLk; Mtz';fspd; efy;fshFk;/ mjpy; cs;s
ifbaGj;Jf;fs; kDjhuUilaJ jhd; vd;gJ epu;thf jug;gpy;
kWg;g[ bjuptpf;fhjJ kw;Wk; kDjhiu nkw;fz;l Mtz';fs;
mog;gilapy; Fwf;F tprhuiz bra;jJk;. Mtz';fspd;
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cz;ikj;jd;ik Fwpj;J nfs;tp vGg;ghjJk;. kDjhuupd;
rhd;whtz';fs; Vw;Wf;bfhs;sg;gLfpwJ/ nkYk; vjpu;kDjhuupd;
kWg;g[ mwpf;ifapy; vjpuk; Djhuupd; Tl;Lwt[ r';fj;jpypUe;J
rpypzl; u; tpepnahfk; bra;tjw;fhd jdpg;gpupt[ bjhl';fg;gl;lnghJ
mg;bghGJ njitg;gl;l gzpahsu;fspd; njitg;gl;oay; (Cadre
Strength)?y; rpypzl; u; tpepnahfpf;Fk; bjhHpyhsu;fs;
,izf;fg;gl;oUe;jJ vjpu;kDjhuu; jug;gpy; Vw;Wf;bfhs;sg;gl;lJ/
,e;epWtdj;jy; rpypzl; u; tpepnahfk; bra;j epue;jpu bjhHpyhsu;
Xa;t[ bgw;Wtpll; J kDjhuupd; Mtz';fs; K:yk; cWjp
bra;ag;gl;lJ/ vdnt nkw;fz;l fhypapl';fis Cadre Strength
,Ue;Jk; Tl;Lwt[ r';f rl;lj;jpd; K:ykhfnth. my;yJ khtl;l
ntiytha;g;g[ mYtyfk; K:ykhfnth. g{u;jj; p bra;a vjpu;kDjhuu;
epWtdk; vt;tpj eltof;ifapYk; <LglhjJ vjpu;kDjhuupd; jtnw
MFk;/ vdnt kDjhuu;fs; gzpepue;jpuk; nfhu KG cupik
cs;sJ vd ,jd; K:yk; jPuk; hdpff; g;gLfpwJ/”
22.In the present case, the gas cylinder delivery personnel were not
engaged through any outsourcing arrangement but were directly employed by
the Petitioner Management on a piece-rate basis. The payment slip issued to
one of the workmen, Mr. S. Dakshinamoorthy, which was marked as an exhibit
before the Authority, clearly demonstrates that, in addition to the payment of
piece-rate wages, deductions were made towards Employees’ Provident Fund
(EPF) and Employees’ State Insurance (ESI). The relevant portion of the
payment slip is reproduced below:—
Tiruchengode Agricultural Producers Co-operative
Marketing Society Limited
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Mr.S.Dakshinamoorthy who was engaged completely on temporary on piece
rate basis for the purpose of doing the work of cylinder delivery, the details of
the wages paid to him for the month of September 2019:-
Description Details of wages paid
Piece rate amount for one cylinder 10.00
Wage for cylinder delivery 6690.00
Total wage 6690.00
EPF 12% 803.00
ESI 0.75% 51.00
Total Deductions 854.00
Balance wages paid 5836.00
Sd/-
For Managing Director
23.It is pertinent to note that the Government of Tamil Nadu, by G.O.
Ms. No. 185, Labour and Employment Department, dated 28.10.1999, included
“Employment in the distribution of Liquid Petroleum Gas Cylinders” in the
schedule to the Minimum Wages Act, 1948. Pursuant thereto, a notification was
issued under G.O. (2D) No. 88, Labour Welfare and Skill Development (J1)
Department, dated 01.10.2024, prescribing minimum rates of wages for such
employment. As per the said notification, the minimum wage—comprising
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basic pay and dearness allowance—payable to gas cylinder delivery personnel
is approximately Rs. 14,000 per month. However, the Petitioner Society has
been paying them only about half of the statutorily prescribed minimum wage.
24.The Hon’ble Supreme Court, in People’s Union for Democratic
Rights v. Union of India, reported in (1982) 3 SCC 235, held that non-
payment of minimum wages constitutes forced labour, which is expressly
prohibited under Article 23 of the Constitution of India. The Court observed as
follows:—
“Now the next question that arises for consideration is whether
there is any breach of Article 23 when a person provides labour or
service to the State or to any other person and is paid less than the
minimum wage for it. It is obvious that ordinarily no one would
willingly supply labour or service to another for less than the
minimum wager when he knows that under the law he is entitled to
get minimum wage for the labour or service provided by him. It
may therefore be legitimately presumed that when a person
provides labour or service to another against receipt of
remuneration which is less than the minimum wage, he is acting
under the force of some compulsion which drives him to work
though he is paid less than what he is entitled under law to receive.
What Article 23 prohibits is 'forced labour' that is labour or service
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which a person is forced to provide and 'force' which would make
such labour or service 'forced labour' may arise in several ways. It
may be physical force which may compel a person to provide
labour or service to another or it may be force exerted through a
legal provision such as a provision for imprisonment or fine in case
the employee fails to provide labour or service or it may even be
compulsion arising from hunger and poverty, want and destitution.
Any factor which deprives a person of a choice of alternatives and
compels him to adopt one particular course of action may properly
be regarded as 'force' and if labour or service is compelled as a
result of such 'force', it would we 'forced labour'. Where a person is
suffering from hunger or starvation, when he has no resources at all
to fight disease or feed his wife and children or even to hide their
nakedness, where utter grinding poverty has broken his back and
reduced him to a state of helplessness and despair and where no
other employment is available to alleviate the rigour of his poverty,
he would have no choice but to accept any work that comes hims
way, even if the remuneration offered to him is less than the
minimum wage. He would be in no position to bargain with the
employer; he would have to accept what is offered to him. And in
doing so he would be acting not as a free agent with a choice
between alternatives but under the compulsion of economic
circumstances and the labour or service provided by him would be
clearly 'forced labour.'”
25.The term “employee” is defined under Section 2(i) of the Minimum
Wages Act, 1948, and includes any person employed in an employment for
which minimum rates of wages have been fixed by a notification issued under
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the Act. The definition is reproduced below:—
"employee" means any person who is employed for hire or
reward to do any work, skilled or unskilled, manual or clerical, in
a scheduled employment in respect of which minimum rates of
wages have been fixed; and includes an out-worker to whom
any articles or materials are given out by another person to be
made up, cleaned, washed, altered, ornamented, finished,
repaired, adapted or otherwise processed for sale for the purposes
of the trade or business of that other person where the process is
to be carried out either in the home of the out-worker or in some
other premises not being premises under the control and
management of that other person; and also includes an employee
declared to be an employee by the appropriate Government; but
does not include any member of the Armed Forces of the Union.”
[Emphasis added]
Therefore, it is far too late in the day to contend that the gas cylinder delivery
personnel are not employees of the Petitioner Society.
26.The fact that the Petitioner Society exercised disciplinary control over
the contesting respondents is evident from the issuance of a charge memo to
one of them, namely, Mr. V. Bhoopathi Raja, in relation to certain alleged
misconduct. The relevant extract from the said charge memo reads as follows:
“v!;/351/jpUr;br';nfhL ntshz;ik cw;gj;jpahsu;fs; Tl;Lwt[ tpwg; idr;
r';f nkyhz;ik ,af;Feupd; eltof;iffs;/
Kd;dpiy: jpU/g/,utpf;Fkhu;. vk;/gp/V/. vr;/o/rp/vk;/.
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,izg;gjpthsu;-nkyhz;ik ,af;Feu/;
e/f/vz;/123-2020-vuptha[ ehs;/18/01/2021
Fwpg;ghiz
bghUs; : r';fj;jpy; gP!;nul; mog;gilapy; rpypz;lu; blyptup bra;ak[ ;
ntiyia Kw;wpYk; jw;fhypfkhf bra;J tUk; jpU/tp/g{gjpuh$h ?
rk;ge;jg;gl;l Efu;nthu;fF
; rpypz;lu; tpepnahfk; bra;ahky; ntW egUf;F
rpypzl; iu Kiwnflhf tpepnahfk; bra;jJ ? tpsf;fk; nfhUjy; ?
rk;ge;jkhf/”
27.Since the LPG supply was undertaken by the Petitioner Society on a
dealership basis and constituted an essential service, the delivery personnel
were authorised to continue their duties even during the COVID-19 pandemic.
Their services were officially recognised as COVID-19 duty, as evidenced by a
certificate issued by the competent authority dated 04.05.2020. It is relevant to
note that when LPG distribution was earlier carried out directly by the Indian
Oil Corporation (IOC), the gas delivery personnel engaged by IOC approached
this Court by way of a writ petition. In LPG Delivery Employees’ Union v.
Indian Oil Corporation Ltd., in W.P. Nos. 15079 and 15080 of 2007,
decided on 02.08.2011, this Court held that such delivery workers were
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employees of IOC and entitled to the benefits of labour welfare legislations,
including coverage under the Employees’ Provident Fund and Employees’ State
Insurance Acts. Pursuant to the directions issued in the said judgment, delivery
personnel engaged by IOC dealers were also brought within the ambit of EPF
and ESI coverage. The relevant directions are as follows:—
“In the light of the clear legal pronouncements, it is for the
workmen to approach the appropriate authorities and give
specific complaints. The respondents viz., PF Department and
ESI Authorities are directed to take prompt action on such
complaints in accordance with law. The IOC is also directed to
make clear cut provision in their agreement so that it does not
give rise to any ambiguity in the matter of application of labour
legislation.”
28.The contention that the gas cylinder delivery personnel are not
employees of the Petitioner Society is wholly untenable and stands rejected.
The question as to who qualifies as an “employee” in labour law was
considered by the Supreme Court in Hussainbhai v. The Alath Factory
Thozhilali Union, reported in (1978) 4 SCC 257, wherein the Court held as
follows:-
“Who is an employee, in Labour Law? That is the short, die-
hard question raised here but covered by this Court's earlier
decisions. Like the High Court, we give short shift to the
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contention that the petitioner had entered into agreements
with intermediate contractors who bad hired the respondent-
Union's workmen and so no direct employer- employee
vinculum juris existed between the petitioner and the
workmen.
This argument is impeccable in laissez faire economics 'red in
tooth and claw' and under the Contract Act rooted in English
Common Law. But the human gap of a century yawns
between this strict doctrine and industrial jurisprudence. The
source and strength of the industrial branch of Third World
Jurisprudence is social justice proclaimed in the Preamble to
the Constitution. This Court in Ganesh Beedi's case 1974
(1)LLJ 367 has raised on British and American rulings to
hold that mere contracts are not decisive and the complex
of considerations relevant to the relationship is different.
Indian Justice, beyond Atlantic liberalism, has a rule of law
which runs to the aid of the rule of life. And life, in
conditions of poverty aplenty, is livelihood and livelihood is
work with wages. Raw societal realities, not fine-spun legal
niceties, not competitive market economics but complex
protective principles, shape the law when the weaker,
working class sector needs succour for livelihood through
labour. The conceptual confusion between the classical law of
contracts and the special branch of law sensitive to
exploitative situations accounts for the submission that the
High Court is in error in its holding against the petitioner.
The true test may, with brevity, be indicated once again.
Where a worker or group of workers labours to produce
goods or services and these goods or services are for the
business of another, that other is, in fact, the employer. He
has economic control over the workers' subsistence, skill, and
continued employment. If he, for any reason, chokes off, the
worker is, virtually, laid off. The presence of intermediate
contractors with whom alone the workers have immediate or
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direct relationship ex contractu is of no consequence when,
on lifting the veil or looking at the conspectus of factors
governing employment, we discern the naked truth, though
draped in different perfect paper arrangement, that the real
employer is the Management, not the immediate contractor.
Myriad devices, half-hidden in fold after fold of legal form
depending on the degree of concealment needed, the type of
industry, the local conditions and the like, may be resorted to
when labour legislation casts welfare obligations on the real
employer, based on Articles 38, 39, 42, 43 and 43-A of the
Constitution. The court must be astute to avoid mischief and
achieve the purpose of the law and not be misled by the maya
of legal appearances.
If the livelihood of the workmen substantially depends on
labour rendered to produce goods and services for the
benefits and satisfaction of an enterprise, the absence of
direct relationship or the presence of dubious intermediaries
or the make-believe trappings of detachment from the
Management cannot snap the real-life bond. The story may
vary but the inference defies ingenuity. The lia- bility cannot
be shaken off.”
29.Although it is now contended that the contesting respondents have
raised a dispute concerning their non-employment—possibly arising from the
Petitioner Society having denied them work upon their assertion of a claim for
permanent status—such a circumstance does not preclude adjudication of
thepresent issue concerning the validity of the impugned order. A Division
Bench of this Court, in the context of a Co-operative Central Bank, had
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occasion to consider the legality of an order passed by the Permanent Status
Authority conferring permanent status on jewel appraisers engaged by the bank.
The Division Bench upheld the authority’s order in The Special Officer,
Salem District Central Co-operative Bank Ltd. v. State of Tamil Nadu, in
W.A. No. 1765 of 2019 and batch cases, decided on 16.06.2023, and in
paragraphs 15, 22, and 23, it was observed as follows:—
“15. Taking note of the above submission and also the decision of
the Supreme Court in Tamil Nadu State Transport Corporation v.
Neethivalangan, Kumbakonam, 2001 (9) SCC 99, in order to avoid
further round of litigation and the workmen approaching the
Authority under Section 6 of the 1981 Act for prosecution, we direct
the Management to make the status of the workmen permanent in
respect of 26 workmen, whose names are mentioned below and who
are in service, within a period of two months from the date of
receipt of a copy of this order and grant all terminal benefits minus
back-wages, as aforementioned, in respect of the workmen, who
have retired. Till such time the workmen are made permanent, they
should be paid at least the wages applicable to an equivalent post.
22. In W.P.No.32966 of 2019, the workmen have not been recruited
through Employment Exchange and there is no By-law, fixing the
cadre strength. The Apex Court, in Excise Superintendent,
Malkapatnam, Krishna District, Andhra Pradesh v.
K.B.N.Visweshwara Rao, 1996 (6) SCC 216, held that recruitment
through Employment Exchange is not the only source. However, in
a batch of cases, the workmen have been allowed to work for years
together, allowing the deeming provision of Section 3 of the 1981
Act to apply.
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23. In view of the same, we are of the view that the order of the
Authority, as confirmed by the learned single Judge, is not to be
interfered with, however, with certain modifications, as stated
above, in view of the concession made by the learned counsel across
the Bar. The modified order of this Court is expected to be
implemented within the time stipulated in Paragraph 15
hereinabove”
30.Much like the jewel appraisers in the case referred to earlier, the gas
cylinder delivery personnel in the present case are indispensable to the
functioning of the Petitioner Society’s dealership obtained from the Indian Oil
Corporation. The fact that the contesting Respondents were engaged even
during the COVID-19 pandemic—when only essential services were permitted
to operate—underscores the critical nature of their role. The omission by the
Registrar of Co-operative Societies to include gas delivery personnel in the
sanctioned cadre strength does not imply that the Society can operate its LPG
distribution business without them, especially when such operations yield
substantial revenue. So long as the dealership remains in force, the delivery of
gas cylinders to consumers is a non-negotiable obligation, necessitating the
employment of delivery personnel. The mere fact that these workers were paid
on a piece-rate basis does not detract from their status as employees of the
Society. On the contrary, the Society exercised complete control over their
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work, and the mode of wage payment does not alter the fundamental nature of
the employer-employee relationship.
31.It cannot be contended that the respondents were engaged through
backdoor methods or in violation of recruitment procedures. The mere fact that
their positions are considered ex-cadre or fall outside the sanctioned cadre
strength does not, by itself, disentitle them to the benefits available under
labour welfare legislations. The ability of the Society to outsource such work
does not negate the applicability of the Permanent Status Act, which was
specifically enacted to prevent the exploitation of workers by engaging them
for long durations under the guise of temporary employment. The constitutional
validity of the Permanent Status Act has been upheld by the Hon’ble Supreme
Court, and since the enactment has received the assent of the President, it
prevails over any other conflicting legislation on the subject, being a special
law governing the conferment of permanent status on eligible workmen.
32.In this context, it is pertinent to refer to certain decisions of the
Hon’ble Supreme Court which have considered and distinguished the principles
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laid down in State of Karnataka v. Umadevi and Secretary, State of
Karnataka v. Ashwani Kumar. In Maharashtra State Road Transport
Corporation v. Casteribe Rajya Parivahan Karmchari Sanghatana,
reported in (2009) 8 SCC 556, the Supreme Court, in paragraphs 32, 35, and
36, held as follows:—
“32.The power given to the Industrial and Labour Courts
under Section 30 is very wide and the affirmative action
mentioned therein is inclusive and not exhaustive. Employing
badlis, casuals or temporaries and to continue them as such for
years , with the object of depriving them of the status and
privileges of permanent employees is an unfair labour practice on
the part of the employer under item 6 of Schedule IV. Once such
unfair labour practice on the part of the employer is established in
the complaint, the Industrial and Labour Courts are empowered to
issue preventive as well as positive direction to an erring
employer..
35. Umadevi (2006 (4) SCC 1) is an authoritative
pronouncement for the proposition that Supreme Court (Article
32) and High Courts (Article 226) should not issue directions of
absorption, regularization or permanent continuance of
temporary, contractual, casual, daily wage or ad-hoc employees
unless the recruitment itself was made regularly in terms of
constitutional scheme.
36.Umadevi (2006 (4) SCC 1) does not denude the Industrial and
Labour Courts of their statutory power under Section 30 read
with Section 32 of MRTU & PULP Act to order permanency of
the workers who have been victim of unfair labour practice on the
part of the employer under item 6 of Schedule IV where the posts
on which they have been working exists. Umadevi cannot be held
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to have overridden the powers of Industrial and Labour Courts in
passing appropriate order under Section 30 of MRTU & PULP
Act, once unfair labour practice on the part of the employer under
item 6 of Schedule IV is established.”
33.Similarly, in Umrala Gram Panchayat v. Secretary, Municipal
Employees Union, reported in (2015) 12 SCC 775, the Hon’ble Supreme
Court considered and explained the scope of Umadevi in paragraphs 17 and 18,
which read as follows:—
“The reliance placed by the learned senior counsel for the
appellant upon the decision of this Court in Secretary, State of
Karnataka & Ors. v. Umadevi & Ors.[2006(4) SCC 1], does not
apply to the fact situation of the present case and the same cannot
be accepted by us in the light of the cogent reasons arrived at by
the courts below.
In view of the reasons stated supra and in the light of the facts and
circumstances of the present case, we hold that the services of the
concerned workmen are permanent in nature, since they have
worked for more than 240 days in a calendar year from the date of
their initial appointment, which is clear from the evidence on
record. Therefore, not making their services permanent by the
appellant-Panchayat is erroneous and also amounts to error in law.
Hence, the same cannot be allowed to sustain in law.”
34.Further, the Supreme Court in Vinod Kumar v. Union of India,
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reported in 2024 SCC OnLine SC 1533, held as follows:—
“The application of the judgment in Uma Devi (supra) by the High
Court does not fit squarely with the facts at hand, given the
specific circumstances under which the appellants were employed
and have continued their service. The reliance on procedural
formalities at the outset cannot be used to perpetually deny
substantive rights that have accrued over a considerable period
through continuous service. Their promotion was based on a
specific notification for vacancies and a subsequent circular,
followed by a selection process involving written tests and
interviews, which distinguishes their case from the appointments
through back door entry as discussed in the case of Uma
Devi (supra).”
35.The aforesaid decision was subsequently referred to and followed in
Jaggo v. Union of India, reported in 2024 SCC OnLine SC 3826, wherein
the Hon’ble Supreme Court held as follows:—
“It is well established that the decision in Uma Devi (supra) does
not intend to penalize employees who have rendered long years of
service fulfilling ongoing and necessary functions of the State or its
instrumentalities. The said judgment sought to prevent backdoor
entries and illegal appointments that circumvent constitutional
requirements. However, where appointments were not illegal but
possibly “irregular,” and where employees had served continuously
against the backdrop of sanctioned functions for a considerable
period, the need for a fair and humane resolution becomes
paramount. Prolonged, continuous, and unblemished service
performing tasks inherently required on a regular basis can, over the
time, transform what was initially ad-hoc or temporary into a
scenario demanding fair regularization. In a recent judgement of this
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Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors.5, it
was held that held that procedural formalities cannot be used to
deny regularization of service to an employee whose appointment
was termed "temporary" but has performed the same duties as
performed by the regular employee over a considerable period in the
capacity of the regular employee.”
36.Once again, in Shripal v. Nagar Nigam, reported in 2025 SCC
OnLine SC 221, the Hon’ble Supreme Court reiterated the legal position and
held as follows:—
“The Respondent Employer places reliance on Umadevi (supra)2 to
contend that daily-wage or temporary employees cannot claim
permanent absorption in the absence of statutory rules providing
such absorption. However, as frequently reiterated, Uma Devi itself
distinguishes between appointments that are “illegal” and those that
are “irregular,” the latter being eligible for regularization if they
meet certain conditions. More importantly, Uma Devi cannot serve
as a shield to justify exploitative engagements persisting for years
without the Employer undertaking legitimate recruitment. Given the
record which shows no true contractor- based arrangement and a
consistent need for permanent horticultural staff the alleged asserted
ban on fresh recruitment, though real, cannot justify indefinite
daily-wage status or continued unfair practices.
It is manifest that the Appellant Workmen continuously rendered
their services over several years, sometimes spanning more than a
decade. Even if certain muster rolls were not produced in full, the
Employer’s failure to furnish such records—despite directions to do
so—allows an adverse inference under well-established labour
jurisprudence. Indian labour law strongly disfavors perpetual daily-
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wage or contractual engagements in circumstances where the work
is permanent in nature. Morally and legally, workers who fulfil
ongoing municipal requirements year after year cannot be dismissed
summarily as dispensable, particularly in the absence of a genuine
contractor agreement.”
37.In view of the foregoing analysis, it is evident that the present case
does not fall within the intended scope and remedial focus contemplated by
the two Division Bench decisions in Justine (cited supra) and Tiruchengode
Agricultural Producers Co-operative Marketing Society Limited(cited supra).
On the contrary, the facts and circumstances of the present case clearly
establish that the order passed by the 1st Respondent Authority is well-founded
and does not suffer from any legal infirmity. Any interference with the said
order would only serve to legitimise the Petitioner Society’s continued
exploitation of low-paid labour in the guise of gas cylinder delivery personnel,
an outcome that runs counter to the very objectives of the labour welfare
legislations intended to prevent such unfair labour practices.
38.Before parting, it is pertinent to recall the cautionary note sounded by
the Hon’ble Supreme Court in adjudications of this nature, as laid down in
Harjinder Singh v. Punjab State Warehousing Corporation, reported in
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(2010) 3 SCC 192. The Court observed as follows:—
“Of late, there has been a visible shift in the courts approach in
dealing with the cases involving the interpretation of social
welfare legislations. The attractive mantras of globalization and
liberalisation are fast becoming the raison d'etre of the judicial
process and an impression has been created that the
constitutional courts are no longer sympathetic towards the plight
of industrial and unorganized workers. In large number of cases
like the present one, relief has been denied to the employees
falling in the category of workmen, who are illegally retrenched
from service by creating by-lanes and side-lanes in the
jurisprudence developed by this Court in three decades. The
stock plea raised by the public employer in such cases is that the
initial employment/engagement of the workman-employee was
contrary to some or the other statute or that reinstatement of the
workman will put unbearable burden on the financial health of
the establishment. The courts have readily accepted such plea
unmindful of the accountability of the wrong doer and indirectly
punished the tiny beneficiary of the wrong ignoring the fact that
he may have continued in the employment for years together and
that micro wages earned by him may be the only source of his
livelihood. It need no emphasis that if a man is deprived of his
livelihood, he is deprived of all his fundamental and
constitutional rights and for him the goal of social and economic
justice, equality of status and of opportunity, the freedoms
enshrined in the Constitution remain illusory. Therefore, the
approach of the courts must be compatible with the constitutional
philosophy of which the Directive Principles of State Policy
constitute an integral part and justice due to the workman should
not be denied by entertaining the specious and untenable grounds
put forward by the employer - public or private.”
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39.In the result, this Court finds no merit in the writ petition filed by the
Petitioner Society. Accordingly, the writ petition stands dismissed, and the
impugned order passed by the 1st Respondent is upheld. Consequently, all
connected miscellaneous petitions are also dismissed. It is open to the
contesting Respondents to work out their rights pursuant to this order. There
shall be no order as to costs.
29.05.2025
ay
NCC : Yes / No
Index : Yes / No
Speaking Order / Non-speaking Order
To
The Assistant Commissioner of Labour (Implementation)
[The Authority constituted under the Tamil Nadu
Industrial Establishments (Conferment of Permanent
Status to Workmen) Act, 1981],
Namakkal – 637 003.
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DR. A.D. MARIA CLETE, J
ay
Pre-Delivery Judgment made in
and
W.M.P.Nos.25640 of 2021, 2623,
2625, 2627, 2628, and 2629 of 2022
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