BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/06/2007
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
WRIT PETITION (MD) No.1915 of 2007
and
M.P.(MD) Nos. 1 and 2 of 2007
The Commissioner,
Thanjavur Municipality,
Thanjavur. .. Petitioner
vs.
1. J.Peter Sugumaran
2. R.Selvam.
3. S.Saravanan
4. S.Ulaganathan
5. S.Manohar
6. K.Murugesan
7. R.Ravikumar
8. K.Mohankuamr
9. R.Muthukumar
10.R.Murali
11.B.Malik
12.K.Parthiban
13.Lenin Kumar
14.M.Vijaya
15.M.Rani
16.Jagannathan
17.P.Saravanan
18.The Inspector of Labour,
Thanjavur. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari calling for the records pertaining to the order
passed by the Inspector of Labour/18th respondent dated 6.11.2006 in C.P.S.Case
No.1/2004 and quash the same.
!For petitioner .. Mr.V.Raghupathy
^For respondents .. Mr.AR.L.Sundaresan,
Senior Counsel for
Mrs. AR.L.Gandhimathi for R1 to R17
Mrs. V.Chellammal,
Spl.Govt.Pleader for R18
:ORDER
The petitioner is the Commissioner of Thanjavur Munkicipality and he has
filed the present Writ Petition seeking to challenge the order of the 18th
respondent/Inspector of Labour in allowing the petition filed by the respondents
1 to 17 in claiming conferment of permanent status by order dated 6.11.2006.
2. The respondent 1 to 17 were admittedly employees of the writ
petitioner/Municipality and they were engaged in a theatre run by the
petitioner/Municipality at Thanjavur named as Thiruvalluvar Theatre. According
to the respondents, 16th respondent was appointed on 22.1.1997; respondents 1
to 10 were appointed on 21.2.1997, 14th respondent was appointed on 1.3.1997;
15th respondent was appointed on 17.5.1997; 17th respondent was appointed on
2.5.1997 and respondents 11 to 13 were appointed on 18.6.1997 and they were
earning on daily wage basis a sum of Rs.100/- per day and they had also signed
the muster roll for having received the amount and that the documents are
available with the writ petitioner.
3. They also submit that they being temporary daily wage employees, they
had also received Pongal Bonus announced by the State Government from the year
1997 to 2000. Even those documents were available with the writ petitioner.
They also submitted that for the service rendered, the muster roll, attendance
registers and bonus registers are available with the writ petitioner.
4. Before the present Writ Petition came to be filed, the respondents 1 to
17 moved this Court by way of writ proceedings in W.P.No.15241 of 2000 and 15249
of 2000 and this Court by order dated 25.3.2004 directed the petitioners therein
to seek remedy under the provisions of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act 1981 (for short TN Act 46 of
1981). Pending decision by the authorities, the present writ petitioner was
restrained from terminating the services of the respondents 1 to 17.
5. As against the said order, the writ petitioner has filed a Writ Appeal
being W.A.No.1335 of 2005 and the said Writ Appeal was dismissed on 18.7.2005.
The Division Bench merely directed the authority to decide the issue within one
month from the production of the order copy. As against the said order,
contesting respondents filed Writ Appeal before the Hon’ble Supreme Court being
SLP No.(Civil No.19231 of 2005). The Hon’ble Supreme Court held since the
workmen did not question about the correctness of the order of the single Judge,
it is for them to approach the authority under the TN Act 46 of 1981. It was
also observed that the services of the workmen though protected by the order of
the single Judge since the Division Bench order is silent on that ground,
liberty was given to the workmen to move the Division Bench for clarification.
6. Once again 15th respondent filed a fresh Writ Petition being
W.P.No.7984 of 2005 seeking for a similar direction in respect of their cases.
However, the learned Judge of this Court held that relief should be obtained
only from the Division Bench as per the directions of the Hon’ble Supreme Court.
In the meanwhile, the Division Bench in Writ Appeal Miscellaneous Petition being
WAMP NO.3920 of 2005 in W.A.No.1335 of 2005 by order dated 3.1.2006 directed the
18th respondent to dispose of the matter pending with him and the respondents
were directed to continue on daily wage basis. Similar relief was also granted
in respect of other respondents in WAMP No.943 of 2005 in W.A.No.920 of 2005 by
order dated 10.8.2006. In the later order dated 10.8.2006 (to which I am a
party), it was also stated that the respondents cannot plead equity on the basis
of interim order by which they had their services continued before the authority
for taking note of the total services rendered by them. It was thereafter,
18th respondent after hearing the parties, passed the order impugned in the Writ
Petition.
7. While the respondents 1 to 17 filed a proof affidavit before the 18th
respondent, the petitioner/Municipality did not file any documents and contended
with the examination of one Junior Assistant as RW.1. The respondents 1 to 17
were examined on the workmen’s side and they also marked Exhibits A.1 and A.2,
which were the acquittance for disbursement of ex-gratia for the year 1997-98
and 1998-99. Therefore, while the petitioner had arged about the discharge of
the obligation by the workmen in terms of the Act, the petitioner/Municipality
did not choose to file any document, eventhough admittedly, all the documents
were said to be in their possession. But, the workmen apart from examining
themselves, filed two crucial registers, which will show that they were in
receipt of ex-gratia amounts for the relevant period. It only means that they
were in service for the entire year without which ex-gratia would not have been
released. The authority after considering all the relevant factors including
oral and documentary evidence came to the conclusion that the applicants before
him (R1 to R17) have completed 480 days of continuous service in a period of 24
calendar months and therefore, they are liable for permanency as per the Sub
Section 1 of Section 3 of the TN Act 46 of 1981. Further direction was given
that the petitioner should confer permanent status to the workmen from the date
they had completed 480 days, which was also given in the annexure to the
impugned order.
8. I have heard Mr. V.Raghupathi, learned counsel for the
petitioner/Municipality and learned Senior Counsel, Mr. AR.L. Sundaresan leading
Mrs. AR.L.Gandhimathi for respondents R1 to R17 and learned Special
Govt.Pleader, Mrs. V.Chellammal for R18 and have perused the records.
9. Learned counsel for the petitioner submits that the impugned order
passed by the 18th respondent is arbitrary, vague and contrary to the principles
of law laid down by the Hon’ble Supreme Court. Thus, he wanted to submit that
there is no principle of law by which the temporary employees can attain
permanent status if their service was not regular. For this, the learned
counsel relied on some judgments rendered in service law, which is not relevant
to the facts of this case. The TN Act 46 of 1981 is a valid piece of
legislation. Its constitutional validity has been upheld by this Court and
confirmed by the Hon’ble Supreme Court. Even in the present case, the writ
petitioner is estopped from contending about the non-applicability of the said
Act. This was because, the Supreme Court in its order dated 26.9.2005 and
3.10.2005 pointed out that the judgment of the single Judge dated 25.3.2004 has
become final and parties should seek remedy only at the hands of the 18th
respondent.
10. With reference to the applicability of the Act, the authority has
found that the petitioner is running a theatre i.e. Thiruvalluvar theatre, in
which the respondents 1 to 17 are employed. Admittedly, the said establishment
comes within the meaning of Section 2(6) of the Tamil Nadu Shops and
Establishments Act 1947 and in view of the said fact that it will automatically
be an “industrial establishment” covered by Section 3(e) of the Tamil Nadu 46
of 1981. Therefore, there is no difficulty about the application of the said
Act to the petitioner’s Theatre establishment.
11. Thereafter, the learned counsel submitted that by G.O.Ms. No.125 the
Municipal Administration and Water Supply Department dated 27.5.1999, the
Government has directed as to how the daily wage workmen can be regularised and
therefore, the reliance upon the TN Act 46 of 1981 is misplaced. This argument
is only stated to be rejected. No executive order can be made bypassing the
legislative provisions especially in the context of non-obstante clause being
found in Section 3 (1) of the TN Act 46 of 1981.
12. Thereafter, the learned counsel submitted that the respondents have
not discharged their obligations in terms of the Act by producing the necessary
registers. Hence, the conclusion reached by the 18th respondent lacks any
materials upon which a decision can be rendered. It is rather unfortunate that
a statutory authority like the writ petitioner should come forward and make such
pleas. Respondents 1 to 17 have made in their applications that all the
registers are in the hands of the writ petitioner and it has not been denied in
any counter statement. Further, the respondents 1 to 17 have been examined
themselves and they were not cross-examined. The workmen, who are respondents 1
to 17, have filed two crucial documents for showing that they have been paid ex-
gratia for the two relevant years which will prove that they had worked for two
full years without which no ex-gratia amount would have been paid to them. When
valuable opportunity of appearing before statutory authority was available to
the writ petitioner/Municipality and they had not availed the same by producing
necessary oral and documentary evidence, they cannot come to this Court under
Article 226 of the Constitution of India and contend that the impugned order
lacks merits.
13. Reliance was placed on the Judgment reported in 2007 (1) SCC 373
(Municipal Corporation, Jabalpur v. Om Prakash Dubey and 2006 (4) SCC 1 (State
of Karnataka v. Uma Devi(3)), which have no application to the facts of the
present case and the entire issue is covered by the State legislation.
14. In a writ of this nature, the Court cannot go behind the order in
question and collect materials, which are outside the record of the statutory
authority whose order is under challenge.
15. Mr. V. Raghupathi, the learned counsel for the petitioner finally
contended that in the absence of the TN Act 46 of 1981 granting clear direction
in terms of as to what should be the wages of the workmen and whether it should
be on time-scale of pay and if so, from which date it should be paid, the
Municipality is unable to execute the order. He also stated that if the
amounts have to be paid from the date of declaration of permanency for the
workmen, it will result in huge expenditure for the Municipality, which
liability they cannot bear.
16. The Power of the Inspector/18th respondent being contained under Rule
6(4) of the TN Act 46 of 1981 is very limited and he has to merely grant the
declaration and the result of the same will have to be worked out by the
petitioner being an employer. The fact that the implementation of the order,
which has been made final by the Court will result in huge expenditure cannot be
pressed into service for setting aside the order. Therefore, this Court is
unable to agree with the said submission made by the learned counsel for the
petitioner. Under the circumstances, the Writ Petition lacks merits and is
liable to be dismissed.
17. However, considering the plea made by the learned counsel for the
petitioner and also after hearing the arguments of Mr.AR.L.Sundaresan, learned
Senior Counsel, this Court is of the view that the matter should not be left
with for further round of litigation since the workmen had already suffered over
19 years. This Court is of the opinion that some directions should be given as
to what should be the wages to be paid to the workmen for the present and for
future. In view of the fact that the respondents have approached this Court in
the year 2004, by an order dated 25.3.2004, and they have been continuing in
services and it was only guaranteed by this Court and also it prevented the writ
petitioner from dispensing with their services and the order of this Court was
confirmed by the Supreme Court and after application before the Bench only as
late as 3.1.2006 and 20.8.2006, and the Division Bench having held that no
equity can be raised with reference to the enjoyment of the interim order, the
following direction is issued.
18. The respondents 1 to 17 shall be paid the minimum wages fixed for
the “theatre industry” as per the Minimum Wages Act. Minimum wages have been
fixed for all commercial establishments vide G.O.Ms.No.2(D) L & E Dept. dt.
13.7.2000 and the respondents 1 to 17 are entitled to get the wages as per that
notification since no scale of pay has been prescribed. This is on the premises
that no employer can pay less than the minimum wage. For the period before that
notification, the wages fixed by the previous notification will be followed. The
same shall be paid within a period of eight weeks from the date of receipt of
copy of this order. Further direction is issued to the writ petitioner to fix
the workmen in the appropriate time scale of pay, which is paid in the
Municipality to the corresponding posts. Mr.AR.L.Sundaresan, learned Senior
Counsel fairly submits that his clients are willing to abide by such a
condition.
19. Excepting for the above direction, the Writ Petition will stand
dismissed. Parties have to bear their costs. Consequently, connected MP (MD)
Nos. 1 and 2 of 2007 are closed.
To
The Inspector of Labour,
Thanjavur.