IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20/11/2007
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
W.P. No.4222 of 2007
AND
MP. Nos.1 and 2 of 2007
The Thirumagal Mills Ltd.
Post Box No.1
Katpadi Road
Gudiyattam 632 602. ..Petitioner
Vs
1. The Deputy Chief Inspector of Factories
Division II
Vellore.
2. A.B.Babu ..Respondents
Writ petition filed under Article 226 of the
Constitution of India praying for a writ of certiorari to
call for the records of the order of the first respondent in
Proceedings No.m/5062/2006 dated 1.12.2006 and quash the
same.
For Petitioner : Mr.R.Parthiban
For Respondents : Mr.S.Gopinathan, Addl. Govt. Pleader for R1
Mr.S.T.Varatharajulu for R2
ORDER
Challenge is made to an order of the first respondent
made in Proceedings No.m/5062/2006 dated 1.12.2006, by way
of this writ petition for a writ of certiorari.
2.The second respondent herein made an application
before the first respondent namely the Deputy Chief
Inspector of Factories, Division II, Vellore, stating that
he has got to be declared as a permanent employee of the
writ petitioner Company. On enquiry, the first respondent
passed an order declaring that he has acquired permanent
status, which is the subject matter of challenge before this
Court.
3.The affidavit in support of the writ petition and the
affidavit in support of the vacate stay petition filed by
the second respondent, are perused. The Court heard the
learned Counsel on either side.
4.The case of the second respondent while he made an
application for permanent status, was that he joined the
writ petitioner establishment in the year 1995; that he was
working continuously as an employee in Quality Control
Section; that in 24 calendar months from 24.2.1995 to
23.2.1997 he worked for 628 days; that number of employees
who joined with him, have been regularized long back; but,
he was not given so; and that under the circumstances, it
became necessary that a direction has got to be issued to
the management to regularize his services.
5.The application was resisted by the writ petitioner
company stating that the application could not be sustained
in view of the provisions of the Tamil Nadu Industrial
Establishments (conferment of permanent status) Act, 1981;
that he joined the petitioner company only as an apprentice
in the month of February 1995; that an apprentice was only a
learner who was given nominal allowance during the period of
his learning; that he was never an employee or recognized as
an employee at any point of time; that he has also absented
himself from duty for a longtime; that pursuant thereto, his
services were also terminated; that since he was not an
employee, he should not be given permanent status, and
hence, the application was to be dismissed.
6.After making an enquiry and in appraisement of the
materials available, the application was ordered by the
lower authority which the petitioner company challenged
before this Court.
7.In support of the writ petition, the learned Counsel
for the petitioner would submit that the second respondent
was only an apprentice; that even in the application given
by him, he has put his designation only as apprentice; that
as per the Standing Orders, he has also been certified as
apprentice; that at no stretch of imagination, the
apprentices could be considered as employees; that it is
also made clear in so may labour enactments; that the Tamil
Nadu Industrial Establishment (Conferment of Permanent
Status to Workmen) Act, 1981, defines a workman as a person
employed in any industrial establishment to do any skilled
or unskilled, manual, supervisory, technical or clerical
work for hire or reward, whether the terms of employment be
expressed or implied, but does not include any such person;
that in the instant case, he was only an apprentice when
joined the service; that he continued to be so till his
services were terminated; that it is also pertinent to point
out that due to the long absence and that too, even without
any permission or leave, his services were terminated; that
he has also challenged the same before the Labour Court;
that the proceedings were also pending; that since he joined
only as apprentice, in view of the provisions of the Act, he
cannot be conferred as a permanent employee; that the lower
authority has neither considered the position both factual
and legal, but has ordered the application, and hence, it
has got to be quashed.
8.In support of his contentions, the learned Counsel
for the petitioner relied on a decision of this Court
reported in 1985 II-LLJ 376 (METAL POWDER CO. LTD. AND
ANOTHER V. THE STATE OF TAMILNADU AND ANOTHER).
9.In answer to the above, the learned Counsel for the
second respondent would submit that it is not correct to
state that the second respondent joined as an apprentice;
that it is true that in the application, his designation is
shown as apprentice; but, the very application would clearly
reveal that he is eligible for bonus, medical benefit namely
ESI, P.F. and gratuity; that needless to say that as far as
the apprentice is concerned, he is not eligible for all
those benefits; that though his designation is shown as
apprentice, he was never treated as apprentice; but, he was
working as Skilled Supervisor in the “Quality Control
Section; that apart from that, he was working from 1995
onwards; that even as per the provisions of the Act, a
person could be allowed to do skilled work for one year and
to do unskilled work for three years; that for more than
this period, a person cannot be kept as an apprentice; that
in the instant case, he has been working there for more than
a decade; that under the circumstances, it would be futile
on the part of the petitioner to state that he was only an
apprentice and not a permanent employee; that added
circumstance is the termination of his services by the
management; that this was adding factor in favour of the
second respondent; that in such circumstances, the lower
authority was perfectly correct in giving permanent status
to him, and hence, the writ petition has got to be
dismissed.
10.The Court paid its anxious consideration on the
submissions made, and is of the considered opinion that the
writ petition does not carry any merit whatsoever. The only
question that was posed before the authority below namely
the first respondent, was that whether the second respondent
could be given the status of permanent employee or not so.
Concededly, the second respondent joined the service of the
writ petitioner company in 1995, and he was there for more
than 10 years. The contention put forth by the petitioner’s
side that he is not a permanent employee, but only an
apprentice, has got to be discarded for more reasons than
one. Admittedly, he has been in service for the past 10
years. The only material available for the petitioner to
state that he was only an apprentice is the application
wherein his designation is found as apprentice. But, it is
pertinent to point out that he has been in service for more
than 10 years. Even as per the provisions of the Act, a
person can be kept as an apprentice in a skilled labour for
a period of one year and in the unskilled labour for a
period of three years. But, in this case, there was no
justification for the petitioner company to keep a person
like the second respondent, as an apprentice for more than
10 years, and hence, the circumstances warranted for making
a comment by the lower authority as unfair labour practice.
Even from the application now relied on by the petitioner’s
side, it would be quite clear that he was eligible for
bonus, medical benefit, PF, etc. Needless to say that an
apprentice is not entitled for those benefits.
11.Adding circumstance in the instant case was that the
petitioner company has terminated his services due to his
long absence. In the case of apprentices, no question of
termination of service would arise. The contention put forth
by the learned Counsel for the petitioner that a person
whose services has been terminated, cannot ask for permanent
status cannot be countenanced. An employee whose services
was terminated cannot maintain an application for permanent
status before the concerned authority after an order of
dismissal was made. But, in the instant case, pending the
application for permanent status, the services of the second
respondent was terminated by the petitioner company. Under
the circumstances, such contention cannot be countenanced.
Apart from this, the termination of the services of the
second respondent by the petitioner would clearly indicate
that he was an employee. Had he not been an employee as
contended by the petitioner’s side, there was no need or
necessity for terminating his services.
12.Added further, in the instant case, the application
made by the second respondent seeking for permanent status,
was pending before the Deputy Chief Inspector of Factories.
Pending the same, his services was terminated. Challenging
the termination, another industrial dispute has been raised
before the Labour Court. Those proceedings are separate and
independent, and one has nothing to do with the other.
Thus, it would be quite clear that he was only a permanent
employee and not an apprentice as contended by the
petitioner’s side. The order of the authority below does
not require any interference. Hence, this writ petition is
dismissed. No costs. Consequently, connected MPs are also
dismissed.
nsv
To:
1. The Deputy Chief Inspector of Factories
Division II
Vellore.