IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 30..7..2008
Coram:
The Hon'ble Mr. Justice K.CHANDRU
W.P. No. 4371 of 1998
The Management of Tamil Nadu
Civil Supplies Corporation Ltd.
Rep. by its Senior Regional Manager
Sachidanandha Moopanar Road
Thanjavur 613 001 [ PETITIONER ]
Vs
1 INSPECTOR OF LABOUR
[AUTHORITY UNDER THE INDUSTRIAL
ESTABLISHMENTS [CONFERMENT OF
PERMANENT STATUS TO WORKMEN] ACT
THANJAVUR
2 S VARADARAJAN
3 M THOMAS PACKIAM
4 S MOORTHY
5 R KUMAR
6 K PANDIAN
7 M SUNDARAMURTHY
8 T MAHALINGAM
9 C KANNDASAN
10 D RAVI
11 T ANBHAZHAGAN
12 D ARUL JAGANNATHAN
13 S SUNDARARAJAN
14 S RAJAGURU
15 V GANESAN
16 V GANESAN
17 M SOUNDARAJAN
18 A LAZAR
19 K PALANIVELU
20 S MEGHARAJ
21 P SUBBIYAN
22 M RATHINAM
23 V JEVANANDAM
24 S RAMALINGAM
25 A RAJENDRAN
26 A PALANIVELU
27 V RANGACHARI
28 R SOUNDARAPANDIAN
29 V SRINIVASAN
30 N NADIMUTHU
31 S THANGARAJ
32 R MUNUSWAMY
33 K CHANDRAMOHAN
34 K BHAVANISHANKAR
35 N MANI
36 K P MOHAN
37 R THANGAVELU
38 G SOMU
39 P SUKUMARAN
40 S SUSAIRAJ
41 M VISWANATHAN
42 S SIVANANDAM
43 M UTHIRAPATHI
44 M DHANAPAL
45 S VIGNANAMURTHY
46 V DHARMARAJAN
47 V MANOHARAN
48 N SELVARAJ
49 R GANESAN
50 R NEEDIGANESAN
51 L KRISHNAMURTHY
52 M RAJENDIRAN
53 V SWAMINATHAN
54 H R V RAMASAMY
55 R THIRUGNANAM
56 K ARUNACHALAM
57 R SAMIYAPPAN
58 G BHASKARAN
59 R RAVI
60 Y ARUPTHASWAMY
61 A SEBASTIAN
62 V RAMALINGAM
63 R KANNAN
64 A JAMES
65 A ANBHAZHAGAN
66 N EKABARAM
67 V SELVARAJU
68 V VELMURUGAN
69 S MURUGAN
70 M G THIAGARAJAN
71 M MARIAPPAN
72 A NEHRU
73 I ISRAEL THANGARAJ
74 S ALEXIS
75 M PANDIAN
76 N VEERASWAMY
77 R AYYAPPAN
78 K MANOHARAN
79 K S PANNERSELVAM
80 G PARAMANATHAN
81 M SETHURAMAN
82 P RAMACHANDRAN
83 A GOVINDARAJAN
84 K RAMAKRISHNAN
85 K NAGARAJAN
86 G CHANDRASEKARAN
87 R CHANDRASEKARAN
88 G PANNERSELVAM [ RESPONDENT ]
Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records in Na. Ka. No. KaA./12171/1995 dated 19.5.1997 on the file of the first respondent and quash the same.
For Petitioner : Mr. Dwarakanath
For Respondent 1 : Mrs. C.K. Vishnupriya, AGP
For Respondents 2-8 : Mr. Ajay Khose
O R D E R
Heard the arguments of the learned counsel for the parties and have perused the records.
2. Aggrieved by the order dated 19.5.1997 passed by the first respondent, the Management of the Tamil Nadu Civil Supplies Corporation Ltd., represented by its Senior Regional Manager, Thanjavur, has filed the present writ petition. In the impugned order, the first respondent had granted direction to the petitioner Management to accord permanent status to respondents 2 to 88 from the date on which they had completed 480 days of service within a period of 24 calendar months.
3. Pending the writ petition, this Court granted an interim stay on 27.3.1998 which was also made absolute on 28.8.2003.
4. It is now stated by Mr. Dwarakanath, learned counsel appearing for the petitioner Management that out 87 employees covered in the writ petition, 70 were since appointed against regular vacancies and were made permanent. Four employees have left the service of the petitioner Management and joined in some other employment. One employee died and six employees’ names were deleted from the seniority list as they have never reported for work. Apart from that, six other employees were not given regular vacancies as they were juniors and their names will be considered only if their immediate seniors will be appointed as per the Settlement dated 30.01.1997 signed under Section 12(3) of the Industrial Disputes Act, 1947 [for short, ‘I.D. Act’]. He also submitted that in the light of these developments, the case of the workmen should be rejected.
5. Mr. Ajay Khose, learned counsel appearing for the workmen submitted that inasmuch as they have got a statutory declaration of permanency from the date notified by the authority, the petitioner cannot be allowed to interfere with the same and they are entitled to enforce the order of declaration given by the first respondent authority.
6. It is, in the light of the factual matrix, the present writ petition will have to be decided.
7. Before the first respondent authority with whom the petition was filed by respondents 2 to 88 seeking permanency, the petitioner Corporation raised a contention that the respondents 2 to 88 were engaged in the Direct Procurement Centre (DPC), which is only as seasonal employment and, therefore, the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 [for short, ‘Permanent Status Act’] will not apply to them. As to whether the establishment is seasonal or not in terms of the Act can be decided only by the State Government. Since the earlier matter was pending before the Supreme Court, the workmen cannot seek any claim at the moment. It was also stated that on 19.9.1991, the Settlement under Section 12(3) of the I.D. Act was arrived at between the parties and, therefore, in the light of the settlement, the workmen cannot claim any permanent status.
8. On behalf of the workmen, it was stated that the workers were engaged as skilled, semi-skilled, manual, clerical and technical and, therefore, the procurement centres cannot be treated as a “seasonal establishment”.
9. The first respondent authority, on the basis of the contention raised by the parties, held that the petitioner Corporation is carrying on an essential service of procuring, storing and distribution of essential commodities and it cannot be said that a watchman, who is engaged for watching the premises can be said to be employed in a seasonal establishment. Even the Management itself had taken a stand when the workmen sought for retaining allowance to the effect that it was not a seasonal establishment. It was also stated that procurement of paddy may be an activity during harvest seasons but the work discharged by the workmen in the present case, are all permanent and perennial in nature. The case referred to by the petitioner Corporation was already disposed of by the Supreme Court and that the settlement dated 19.9.1991 can have no bearing in the present case. The authority had accepted the contentions raised by the workmen and then gave a direction as referred to earlier, to regularise the service of the workmen from the date on which they had completed 480 days of service. It is against this order, the present writ petition has been filed.
10. In support of the submission, Mr. Dwarakanath produced a copy of the Award dated 26.10.1994 made in I.D. No. 128 of 1987 wherein the Industrial Tribunal, Chennai, rejected the demand of the workmen for grant of permanency and stated that the said Award has become final. He also submitted that the settlement dated 19.9.1991 under Section 12(3) of the I.D. Act relating to regularisation of temporary workmen was considered and as per term 3 of the Settlement, qualified seasonal employees in the direct procurement centre will be given preference and relaxing the age qualification, they may be recruited as and when permanent vacancy arises in TNCSC.
11. The learned counsel also referred to the judgment of this Court dated 08.3.2004 in W.P. No. 14640 of 1996 between the Management of the Tamil Nadu Civil Supplies Corporation v. Inspector of Labour in respect of the demand made by 130 workers, who were held to be seasonal employees under the DPCs. In that case, a learned Judge of this Court, after following the judgment of the Division Bench in T.N.C.S.C. Workers’ Union v. T.N.C.S.C. Ltd. and others [1998 (1) L.L.J. 728], set aside the order of the Inspector of Labour.
12. He also brought to the notice of this Court the order in W.P. No. 14639 of 1996, where a similar order was passed by another learned Judge vide his order dated 06.6.2007 relating to 156 workers, setting aside the order of the Inspector of Labour. Therefore, he contended that the said decisions should be followed by this Court also.
13. But, for the reasons best known to the learned counsel, they never brought to the notice of the learned Judges, who heard those matters, that the order of Division Bench followed by them in Tamil Nadu Civil Supplies Corporation workers’ Union (cited supra) was taken up before the Supreme Court and the Supreme Court disposed of the same on 28.3.2001 in Tamil Nadu Civil Supplies Corporation Workers’ Union v. T.N. Civil Supplies Corpn. Ltd. [2001 (4) SCC 469]. However, it is relevant to refer to paragraphs 8 and 10 of the said judgment, which reads as follows:-
Para 8: “Mr Sharma submitted that even though the Division Bench has held that the questions raised in the appeal of the Union were the same as those pending in the writ petitions filed by the 1st respondent, yet the Division Bench has gone on to give a finding that the establishment is of a seasonal character and the work is not (sic) intermittent. Mr Sharma submitted that these findings would now come in the way of the Union while defending the writ petition filed by the 1st respondent. He submitted that this Court should either set aside these findings or clarify that those writ petitions would be decided without taking those findings into account.”
Para 10: “In any event, as stated above, the services of the workmen have been terminated. Therefore, even if the said Act squarely applied and the establishment of the 1st respondent was not of a seasonal character and the work was not intermittent, the remedy would now be to file the appropriate proceedings against the order of termination. In this view of the matter no purpose would be served by dealing with the
correctness of the finding given by the Division Bench.”
14. Thereafter, the order of the Supreme Court having given the liberty to the workmen to first get the order of termination set aside before seeking for confirmation, will clearly show that the issues are left open for the workmen to agitate at a future date. It cannot be said that all the workers in the direct procurement centre will become automatically seasonal employees. While it is one thing to say that the particular establishment is seasonal, it is another thing to state that the workers working in the said establishment have all become seasonal irrespective of the nature of work turned out by them.
15. But in the present case, all the workers covered by the impugned order were all Assistant Quality Inspectors, Watchmen, Packer, Helper, Bill Clerk, etc. The procurement, storage and distribution are all on going process and if they are really seasonal, there is no question of the workmen being covered by the settlement or the Award as referred to by the Management. On the contrary, in the present case, even as per the admission of the learned counsel for the Management, who has given a tabular statement showing that the number of the workmen taken against the regular vacancy was 70.
16. Further, in the letter dated 02.4.1991 sent by the Chairman cum Managing Director of the petitioner Management to the Joint Commissioner of Labour over which a reference was made in the impugned order. The Managing Director had written in page 3 as follows:-
“Regarding payment of retaining allowance to the D.P.C. staff, this cannot be compared to the seasonal industries like sugar industry. This is not a seasonal industry and the Government have not declared it so. We need not retain them when there is no procurement and as such no retaining allowance need be paid.”
Even as per the provisions of Permanent Status Act, if the petitioner wants, they can move the Government to declare the DPC as seasonal and they have not done so.
17. The argument that the settlement and the Award is binding cannot be accepted because of the non-obstante clause found in Section 3(1) of the I.D. Act. Originally, it did not cover a Settlement or an Award. Therefore, if there was any settlement or Award between the employer and the workmen, then the provisions of Tamil Nadu Act 46 of 1981 will have no application. This was noticed by a Division Bench of this Court in its judgment in Metal Powder Co. Ltd., Thirumangalam and another v. The State of Tamil Nadu and another [1985 (2) L.L.J. 376] and after referring to the similar provisions in other Labour enactments in paragraph 27, it was observed as follows:-
Para 27: “…. 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….”
Taking note of the above judgment, the State Legislature amended Section 3(1) of the Tamil Nadu Act 46 of 1981 and the words ‘settlement’ and ‘Award’ have been included in the Explanation to Section 3(1) of the Act.
18. In fact, when the amended provisions were challenged before the Supreme Court, the Act was held to be intravires of the Constitution by the Supreme Court in State of Tamil Nadu and others v. Nellai Cotton Mills Ltd. and others [1990 (2) SCC 518]. Therefore, the objections based on the Award and settlement by the learned counsel for the Management must necessarily fail.
19. Thereafter, Mr. Ajay Khose, learned counsel appearing for the workmen brought to the notice of this Court a judgment of this Court in Tamil Nadu Civil Supplies Corporation Modern Rice Mill Engineering Section employes Union v. The Tamil Nadu Civil Supplies Corporation, rep. by its Managing Director [1998 Writ L.R. 514] relating to the very same Corporation. In that case, the petitioner Corporation gave a circular regularising the casual workers working in the Modern Rice Mill and gave their own date of regularisation. P.D. Dinakaran, J., in paragraphs 11 and 15 of the said judgment, held as follows:-
Para 11: “Section 3(1), being a non-obstante provision, it prevails over any law for the time being in force which includes any service rules, Government Orders or government instructions. Therefore, want of sanctioned posts as required under General service rules cannot take away the rights conferred under Section 3(1) of the Act. Similarly, Government Orders which require that the appointments should be made only through Employment Exchange also cannot be a ground to refuse the right provided under section 3(1) of the to the petitioners if they comply the requirements prescribed under Section 3(1). Therefore, it is not open for the respondent to take shelter under any other law in force much less any Government Orders, Government Instructions to deny the benefits conferred under Section 3(1) of the Act, to the petitioners, if they satisfy the conditions prescribed therein, irrespective of the availability of sanctioned posts or sponsorship from Employment Exchange.”
Para 15: “Therefore, the respondents are directed to modify the proceedings dated 24.2.1989 to confer the permanent status to individual workmen from the day on which they satisfy the condition namely completing the continuous service for period of 480 days in a period of 24 Calendar months in the respondent establishment. The respondent shall pass appropriate orders as directed above within 6 weeks from the date of receipt of a copy of this order.”
20. In the light of the above, the contentions raised by the petitioner Management will have to be necessarily rejected. In fact, the petitioner Management themselves have regularised the workmen on a posterior date. In the light of the above judgments of this Court and the Supreme Court, such action cannot be countenanced by this Court. The impugned order of the first respondent will have to be necessarily upheld. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs.
30..7..2008
Index : Yes
Internet : Yes
gri
To
THE INSPECTOR OF LABOUR AUTHORITY
UNDER T.N. INDUSTRIAL ESTABLISHMENTS
(CONFERMENT OF PERMANENT
STATUS TO WORKMEN) ACT, 1981
THANJAVUR
K.CHANDRU, J.
gri
Order in
W.P. No. 4371 of 1998
Delivered on
30..7..2008