High Court Madras High Court

The Thirumagal Mills Ltd vs The Deputy Chief Inspector Of … on 20 November, 2007

Madras High Court
The Thirumagal Mills Ltd vs The Deputy Chief Inspector Of … on 20 November, 2007
       

  

  

 
 
           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.