{"id":56196,"date":"2007-06-13T00:00:00","date_gmt":"2007-06-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-vs-j-peter-sugumaran-on-13-june-2007"},"modified":"2016-10-31T03:23:34","modified_gmt":"2016-10-30T21:53:34","slug":"the-commissioner-vs-j-peter-sugumaran-on-13-june-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-vs-j-peter-sugumaran-on-13-june-2007","title":{"rendered":"The Commissioner vs J.Peter Sugumaran on 13 June, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Commissioner vs J.Peter Sugumaran on 13 June, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:  13\/06\/2007\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE K.CHANDRU\n\nWRIT PETITION (MD) No.1915 of 2007\nand\nM.P.(MD) Nos. 1 and 2 of 2007\n\nThe Commissioner,\nThanjavur Municipality,\nThanjavur.    \t\t\t\t..   Petitioner\n\n\nvs.\n\n\n1. J.Peter Sugumaran\n2. R.Selvam.\n3. S.Saravanan\n4. S.Ulaganathan\n5. S.Manohar\n6. K.Murugesan\n7. R.Ravikumar\n8. K.Mohankuamr\n9. R.Muthukumar\n10.R.Murali\n11.B.Malik\n12.K.Parthiban\n13.Lenin Kumar\n14.M.Vijaya\n15.M.Rani\n16.Jagannathan\n17.P.Saravanan\n18.The Inspector of Labour,\n   Thanjavur. \t\t\t\t..   Respondents\n\n\n\tWrit Petition filed under Article 226 of the Constitution of India to\nissue a Writ of Certiorari calling for the records pertaining to the order\npassed by the Inspector of Labour\/18th respondent dated 6.11.2006 in C.P.S.Case\nNo.1\/2004 and quash the same.\n\n!For petitioner  .. \tMr.V.Raghupathy\n\n^For respondents .. \tMr.AR.L.Sundaresan,\n\t\t\tSenior Counsel for\n\t\t\tMrs. AR.L.Gandhimathi for R1 to R17\n\n\t\t\tMrs. V.Chellammal,\n                        Spl.Govt.Pleader for R18\n\n:ORDER\t\n<\/pre>\n
\tThe petitioner is the Commissioner of Thanjavur Munkicipality and he has
\nfiled the present Writ Petition seeking to challenge the order of the 18th
\nrespondent\/Inspector of Labour in allowing the petition filed by the respondents
\n1 to 17 in claiming conferment of permanent status by order dated 6.11.2006.\n<\/p>\n
\t2. The respondent 1 to 17 were admittedly employees of the writ
\npetitioner\/Municipality and they were engaged in a  theatre run by the
\npetitioner\/Municipality at Thanjavur named as Thiruvalluvar Theatre.  According
\nto the respondents,   16th respondent was appointed on 22.1.1997; respondents 1
\nto 10 were appointed on 21.2.1997, 14th respondent was appointed on 1.3.1997;
\n15th respondent was appointed on 17.5.1997; 17th respondent was appointed on
\n2.5.1997 and respondents 11 to 13 were appointed on 18.6.1997 and they were
\nearning on daily wage basis a sum of Rs.100\/- per day and they had also signed
\nthe muster roll for having received the amount and that the documents are
\navailable with the writ petitioner.\n<\/p>\n
\t3.  They also submit that they being temporary daily wage employees, they
\nhad also received Pongal Bonus announced by the State Government from the year
\n1997 to 2000.  Even those documents were available with the writ petitioner.
\nThey also submitted that for the service rendered, the muster roll, attendance
\nregisters and bonus registers are available with the writ petitioner.\n<\/p>\n
\t4. Before the present Writ Petition came to be filed, the respondents 1 to
\n17 moved this Court by way of writ proceedings in W.P.No.15241 of 2000 and 15249
\nof 2000 and this Court by order dated 25.3.2004 directed the petitioners therein
\nto seek remedy under the provisions of the Tamil Nadu Industrial Establishments
\n(Conferment of Permanent Status to Workmen) Act 1981 (for short TN Act 46 of
\n1981).  Pending decision by the authorities, the present writ petitioner was
\nrestrained from terminating the services of the respondents 1 to 17.\n<\/p>\n
\t5. As against the said order, the writ petitioner has filed a Writ Appeal
\nbeing W.A.No.1335 of 2005 and the said Writ Appeal was dismissed on 18.7.2005.
\nThe Division Bench merely directed the authority to decide the issue within one
\nmonth from the production of the order copy.  As against the said order,
\ncontesting respondents filed Writ Appeal before the Hon’ble Supreme Court being
\nSLP No.(Civil No.19231 of 2005).  The Hon’ble Supreme Court held since the
\nworkmen did not question about the correctness of the order of the single Judge,
\nit is for them to approach the authority under the TN Act 46 of 1981.  It was
\nalso observed that the services of the workmen though protected by the order of
\nthe single Judge since the Division Bench order is silent on that ground,
\nliberty was given to the workmen to move the Division Bench for clarification.\n<\/p>\n
\t6. Once again 15th respondent filed a fresh Writ Petition being
\nW.P.No.7984 of 2005 seeking for a similar direction in respect of their cases.
\nHowever, the learned Judge of this Court held that relief should be obtained
\nonly from the Division Bench as per the directions of the Hon’ble Supreme Court.
\nIn the meanwhile, the Division Bench in Writ Appeal Miscellaneous Petition being
\nWAMP NO.3920 of 2005 in W.A.No.1335 of 2005 by order dated 3.1.2006 directed the
\n18th respondent to dispose of the matter pending with him and the respondents
\nwere directed to continue on daily wage basis.   Similar relief was also granted
\nin respect of other respondents in WAMP No.943 of 2005 in W.A.No.920 of 2005 by
\norder dated 10.8.2006.  In the later order dated 10.8.2006 (to which I am a
\nparty), it was also stated that the respondents cannot plead equity on the basis
\nof interim order by which they had their services continued before the authority
\nfor taking note of the total services rendered by them.  It was  thereafter,
\n18th respondent after hearing the parties, passed the order impugned in the Writ
\nPetition.\n<\/p>\n
\t7. While the respondents 1 to 17 filed a proof affidavit before the 18th
\nrespondent, the petitioner\/Municipality did not file any documents and contended
\nwith the examination of one Junior Assistant as RW.1.  The respondents 1 to 17
\nwere examined on the workmen’s side and they also marked Exhibits A.1 and A.2,
\nwhich were the acquittance for disbursement of ex-gratia for the year 1997-98
\nand 1998-99.  Therefore, while the petitioner had arged about the discharge of
\nthe obligation by the workmen in terms of the Act, the petitioner\/Municipality
\ndid not choose to file any document, eventhough admittedly, all the documents
\nwere said to be in their possession.  But, the workmen apart from examining
\nthemselves, filed two crucial registers, which will show that they were in
\nreceipt of ex-gratia amounts for the relevant period.  It only means that they
\nwere in service for the entire year without which  ex-gratia would not have been
\nreleased.  The authority after considering all the relevant factors including
\noral and documentary evidence came to the conclusion that the applicants before
\nhim (R1 to R17) have completed 480 days of continuous service in a period of 24
\ncalendar months and therefore, they are liable for permanency as per the Sub
\nSection 1 of Section 3 of the TN Act 46 of 1981.  Further direction was given
\nthat the petitioner should confer permanent status to the workmen from the date
\nthey had completed  480 days, which was also given in the annexure to the
\nimpugned order.\n<\/p>\n
\t8. I have heard Mr. V.Raghupathi, learned counsel for the
\npetitioner\/Municipality and learned Senior Counsel, Mr. AR.L. Sundaresan leading
\nMrs. AR.L.Gandhimathi for respondents R1 to R17 and learned Special
\nGovt.Pleader, Mrs. V.Chellammal for R18 and have perused the records.\n<\/p>\n
\t9. Learned counsel for the petitioner submits that the impugned order
\npassed by the 18th respondent is arbitrary, vague and contrary to the principles
\nof law laid down by the Hon’ble Supreme Court.  Thus, he wanted to submit that
\nthere is no principle of law by which the temporary employees can attain
\npermanent status if their service was not regular.  For this, the learned
\ncounsel relied on some judgments rendered in service law, which is not relevant
\nto the facts of this case.  The TN Act 46 of 1981 is a valid piece of
\nlegislation.  Its constitutional validity has been upheld by this Court and
\nconfirmed by the Hon’ble Supreme Court.  Even in the present case, the writ
\npetitioner is estopped from contending about the non-applicability of the said
\nAct.  This was because, the Supreme Court in its order dated 26.9.2005 and
\n3.10.2005 pointed out that the judgment of the single Judge dated 25.3.2004 has
\nbecome final and parties should seek remedy only at the hands of the 18th
\nrespondent.\n<\/p>\n
\t10. With reference to the applicability of the Act, the authority has
\nfound that the petitioner is running a theatre i.e. Thiruvalluvar theatre, in
\nwhich the respondents 1 to 17 are employed.   Admittedly, the said establishment
\ncomes within the meaning of Section 2(6) of the Tamil Nadu Shops and
\nEstablishments Act 1947 and in view of the said fact that it will automatically
\nbe an “industrial establishment”  covered by Section 3(e) of the Tamil Nadu 46
\nof 1981.  Therefore, there is no difficulty about the application of the said
\nAct to the petitioner’s Theatre establishment.\n<\/p>\n
\t11.  Thereafter, the learned counsel submitted that by G.O.Ms. No.125 the
\nMunicipal Administration and Water Supply Department dated 27.5.1999, the
\nGovernment has directed as to how the daily wage workmen can be regularised and
\ntherefore, the reliance upon the TN Act 46 of 1981 is misplaced.  This argument
\nis only stated to be rejected.  No executive order can be made bypassing the
\nlegislative provisions especially in the context of non-obstante clause being
\nfound in Section 3 (1) of the TN Act 46 of 1981.\n<\/p>\n
\t12. Thereafter, the learned counsel submitted that the respondents have
\nnot discharged their obligations in terms of the Act by producing the necessary
\nregisters.  Hence, the conclusion reached by the 18th respondent lacks any
\nmaterials upon which a decision can be rendered.  It is rather unfortunate that
\na statutory authority like the writ petitioner should come forward and make such
\npleas.  Respondents 1 to 17 have made in their applications that all the
\nregisters are in the hands of the writ petitioner and it has not been denied in
\nany counter statement.  Further, the respondents 1 to 17 have been examined
\nthemselves and they were not cross-examined.  The workmen, who are respondents 1
\nto 17, have filed two crucial documents for showing that they have been paid ex-
\ngratia for the two relevant years which will prove that they had worked for two
\nfull years without which no ex-gratia amount would have been paid to them.  When
\nvaluable opportunity of appearing before statutory authority was available to
\nthe writ petitioner\/Municipality and they had not availed the same by producing
\nnecessary oral and documentary evidence, they cannot come to this Court under
\nArticle 226 of the Constitution of India and contend that the impugned order
\nlacks merits.\n<\/p>\n
\t13. Reliance was placed on the Judgment reported in 2007 (1) SCC 373
\n(Municipal Corporation, Jabalpur v. Om Prakash Dubey and<\/a> 2006 (4) SCC 1 (State
\nof Karnataka v. Uma Devi(3)), which have no application to the facts of the
\npresent case and the entire issue is covered by the State legislation.\n<\/p>\n
\t14. In a writ of this nature, the Court cannot go behind the order in
\nquestion and collect materials, which are outside the record of the statutory
\nauthority whose order is under challenge.\n<\/p>\n
\t15. Mr. V. Raghupathi, the learned counsel for the petitioner finally
\ncontended that in the absence of the TN Act 46 of 1981 granting clear direction
\nin terms of as to what should be the wages of the workmen and whether it should
\nbe on time-scale of pay and if so, from which date it should be paid, the
\nMunicipality is unable to execute the order.   He also stated that if the
\namounts have to be paid from the date of declaration of permanency for the
\nworkmen, it will result in huge expenditure for the Municipality, which
\nliability they cannot bear.\n<\/p>\n
\t16. The Power of the Inspector\/18th respondent being contained under Rule
\n6(4) of the TN Act 46 of 1981 is very limited and he has to merely grant the
\ndeclaration and the result of the same will have to be worked out by the
\npetitioner being an employer.  The fact that the implementation of the order,
\nwhich has been made final by the Court will result in huge expenditure cannot be
\npressed into service for setting aside the order.  Therefore, this Court is
\nunable to agree with the said submission made by the learned counsel for the
\npetitioner.  Under the circumstances, the Writ Petition lacks merits and is
\nliable to be dismissed.\n<\/p>\n
\t17. However, considering the plea made by the learned counsel for the
\npetitioner and also after hearing the arguments of Mr.AR.L.Sundaresan, learned
\nSenior Counsel, this Court is of the view that the matter should not be left
\nwith for further round of litigation since the workmen had already suffered over
\n19 years.  This Court is of the opinion that some directions should be given as
\nto what should be the wages to be paid to the workmen for the present and for
\nfuture.  In view of the fact that the respondents have approached this Court in
\nthe year 2004, by an order dated 25.3.2004, and they have been continuing in
\nservices and it was only guaranteed by this Court and also it prevented the writ
\npetitioner from dispensing with their services and the order of this Court was
\nconfirmed by the Supreme Court and after application before the Bench only as
\nlate as 3.1.2006 and 20.8.2006, and the Division Bench having held that no
\nequity can be raised with reference to the enjoyment of the interim order, the
\nfollowing direction is issued.\n<\/p>\n
\t18. The  respondents 1 to 17 shall be paid  the minimum wages fixed for
\nthe “theatre industry” as per the Minimum Wages Act.  Minimum wages have been
\nfixed for all commercial establishments vide G.O.Ms.No.2(D) L & E Dept. dt.
\n13.7.2000 and the respondents 1 to 17 are entitled to get the wages as per that
\nnotification since no scale of pay has been prescribed.  This is on the premises
\nthat no employer can pay less than the minimum wage.  For the period before that
\nnotification, the wages fixed by the previous notification will be followed. The
\nsame shall be paid within a period of eight weeks from the date of receipt of
\ncopy of this order.  Further direction is issued to the writ petitioner to fix
\nthe workmen in the appropriate time scale of pay, which is paid in the
\nMunicipality to the corresponding posts.  Mr.AR.L.Sundaresan, learned Senior
\nCounsel fairly submits that his clients are willing to abide by such a
\ncondition.\n<\/p>\n
\t19. Excepting for the above direction, the Writ Petition will stand
\ndismissed.  Parties have to bear their costs.  Consequently, connected MP (MD)
\nNos. 1 and 2 of 2007 are closed.\n<\/p>\n
To<\/p>\n
The Inspector of Labour,
\nThanjavur.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Commissioner vs J.Peter Sugumaran on 13 June, 2007 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-56196","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Commissioner vs J.Peter Sugumaran on 13 June, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-commissioner-vs-j-peter-sugumaran-on-13-june-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Commissioner vs J.Peter Sugumaran on 13 June, 2007 - 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