IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
W.P.No.5980 of 2004
R. Lakshmi .. Petitioner
1. The Chief Engineer (Personnel),
Tamilnadu Electricity Board,
800, Anna Salai,
Chennai 600 002.
2. Superintending Engineer,
Erode Hydro Generation Circle,
Tamilnadu Electricity Board,
Erode. .. Respondents
PRAYER: This writ petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, directing the Respondents to pay the Petitioner family pension, family benefit fund and other terminal benefits including gratuity and also to provide the Petitioner employment on compassionate ground, Award costs.
For Petitioner : Mr. V. Ajoy Khose
For Respondents : Mr. P.R.Dhilip Kumar
The Petitioner has focussed the present Writ of Mandamus praying originally before a Learned Single Judge of this Court for directing the Respondents to pay her family pension, family benefit fund and other terminal benefits including gratuity and also to provide employment to her on compassionate ground.
2. It is not in dispute that the Petitioner is the wife of the deceased Raju, who worked as a Contract Labour in the Civil Section of Power House at Mettur Dam under various Contractors from 01.12.1991 to 30.04.1999. Also that he worked as a Helper in Tamilnadu Electricity Board till his demise on 23.11.2003. The Tamilnadu Electricity Board had not passed orders to make the petitioner's husband as a permanent employee. Subsequently, the Petitioner projected a claim for the retirement benefits on the basis that her deceased husband Raju ought to be treated as a permanent employee of Tamilnadu Electricity Board and also made a claim for Compassionate Appointment to her daughter Valarmathi.
3. The Respondents/Tamilnadu Electricity Board resisted the claim of the Petitioner by contending that her husband Raju was not a permanent employee of the Tamilnadu Electricity Board and therefore the benefits of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 were not conferred. As such, the Petitioner is not entitled to claim the relief sought for in the Writ Petition. Furthermore, it is the stand of the Respondents/Tamilnadu Electricity Board that the deceased Raju had not satisfied the ingredients of the aforesaid Act in order to claim permanency.
4. When the Writ Petition was taken up for arguments on 08.02.2012, the Learned Single Judge during the course of arguments entertained a doubt about the correctness of the view taken by another Learned Single Judge of this Court in the decision of S.Vijayalakshmi Vs. Tamilnadu Water Supply and Drainage Board (represented by its managing Director, Chennai) reported in 2005(3) L.L.N.706 wherein in paragraphs 4 and 5, it is held as follows:
A bare perusal of the aforesaid provision makes it clear that such provision casts an obligation on the employer to confer permanent status on an employee who has completed 480 days work in course of two years. It is of course true that during the life time of the husband of the Petitioner, no such permanent status was actually conferred by any order of the management. It is also true that jurisdiction has been conferred on the inspector to conduct enquiry if necessary to find out whether an employee has completed 480 days or not. However, when facts are not in dispute, merely because no such enquiry had been conducted by the inspector, the Petitioner's husband cannot be denied the benefits of the Act. In view of the mandatory nature of the provision, it shall be taken that an employee who had completed 480 days in a period of two years was permanent. This view receives considerable support from the decision reported in S.Gandhimathi V.Deputy Registrar of cooperative Society (MILK) Tirunelveli and others (2003(3) L.L.N.743)
5. Once it is held that the deceased employee was in law entitled to the benefit of acquisition of permanent status, any consequential benefit cannot be denied to the widow on death of such person or merely because during the life time of the employee no such permanency had been actually conferred .
Therefore, the Learned Single Judge, during the course of hearing of the Writ Petition, opined that for considering the public importance involved, it would be better that the said question is to be examined by a Larger Bench and framed the following question for reference.
Whether a workman, who has completed 480 days of continuous service in a period of 24 calendar months, would become automatically a permanent employee under the employer or he will become a permanent employee only on conferment of permanent status either by the employer on his own or on a direction given by a competent authority under the Act
Accordingly, the Registry was directed to place the papers before the Hon'ble Chief Justice of this Court to consider the matter for constituting a larger Bench.
5. In pursuance of the directions issued by the Learned Single Judge in W.P.No.5980 of 2004 on 08.02.2012, the Registrar (Judicial) of this Court put up a Note before the Hon'ble Chief Justice as to constitution of the Hon'ble Division Bench and the Hon'ble Chief Justice on 28.02.2012 had accordingly constituted this Division Bench and the Writ Petition was posted before this Court.
6. The case of the Petitioner is that her husband Raju (since deceased) worked as a Contract Labour in the Civil Section of Power House at Mettur Dam under different contractors during the period from 01.12.1991 to 30.04.1999. He was absorbed by the Respondents in the Tamilnadu Electricity Board as a Helper from 01.05.1999. He died on 23.11.2003. The Tamilnadu Electricity Board employed thousands of workmen as Contractor Labourers. According to the Petitioner, her husband was directly employed by the Tamilnadu Electricity Board from 01.05.1999.
7. The Hon'ble Supreme Court appointed a commission headed by the Hon'ble Mr.Justice KHALID, (Retired Judge of Supreme Court) to look into the aspect of absorption of Contract Labourers and pursuant to the order of the said Commission, 14575 workmen were absorbed into the service of the Tamilnadu Electricity Board.
8. Subsequently, thousands of workmen were continued to be employed as Contract Labourers in the Tamilnadu Electricity Board. According to the petitioner, the Hon'ble Chief Minister of Tamilnadu Government announced in the Legislative Assembly that contract system would be abolished in the generation side of Tamilnadu Electricity Board and B.P.No.17 dated 29.04.1999 was issued absorbing contract labourers employed in all the thermal power stations who were on employment as on 05.01.1998. Similarly, B.P.22, dated 14.05.1999 was issued for absorption of contract workmen employed in Hydro Generation Stations.
9. The plea of the Petitioner is that by virtue of B.P.No.22 dated 14.05.1999 of the Tamilnadu Electricity Board, her husband Raju (Contract Labour later Deceased) became a direct Employee of the Tamilnadu Electricity Board from 01.05.1999 and he was identified as one of the Contract Labourers employed as on 01.05.1998 eligible to be absorbed from 01.05.1999 and the Selection Committee constituted pursuant to the B.P.22 dated 14.05.1999 directed the absorption of her husband as a Helper in the Tamilnadu Electricity Board. Unfortunately, the Petitioner's husband Raju committed suicide on 23.11.2003 (during his employment with the Tamilnadu Electricity Board from 01.05.1999.) He was directly employed by the Tamilnadu Electricity Board. The reason for her husband's suicide is due to elopement of her elder daughter with another person. He left behind him, his wife (the Petitioner), two daughters and his mother. The Petitioner's family had no source of livelihood except the income of her deceased husband. She requested the Respondents to pay her family pension and other terminal benefits including Gratuity and also requested to provide for a compassionate appointment. She submitted written representations dated 08.12.2003 and 08.01.2004 to the Respondents to pay her family pension and provide her the compassionate appointment. However, the Respondents had not sent any reply. Therefore, she was constrained to file the present Writ Petition.
10. The Respondents/Tamilnadu Electricity Board contend that till the death of Petitioner's husband, he was not included as a Permanent Employee of the Board to get the benefit of compassionate appointment and further the question providing compassionate appointment to the petitioner does not arise because her husband worked under contract basis. Moreover, without following the procedure prescribed relating to the employees of TANGEDCO, she could not be provided with an employment. That apart, her husband was not entitled to be absorbed in regular service. As such, the Petitioner's claim for compassionate appointment is not maintainable in law.
11. The Respondents / Tamilnadu Electricity Board pleaded that the scheme of employment assistance is available only for employees of the Board and as per B.P.Ms.(FB) No.46 (Adm.Branch) dated 13.10.1995, employment assistance would be provided to dependants of the deceased employee of the Tamilnadu Electricity Board who died in harness and this scheme is not available to the contract labourers, who are not the employees of the Board. In short , it is the stand of the Respondents that there is no provision in the Tamilnadu Electricity Board to consider the application of the Petitioner.
12. The Respondents, in their Additional Counter dated 23.04.2012, had averred that based on the demands from various Unions and Individuals, the Tamilnadu Electricity Board decided to identify the contract labourers engaged by the contractors to execute the Tamilnadu Electricity Board works in the Hydro and Gas Turbine generating stations fixing the base date as 05.01.1998. A list of 198 contract labourers were prepared as per the details furnished by the contractors, Contract Labourers and the Assistant Engineers/Junior Engineers and they were identified.
13. In the said list, the Petitioner's husband's name S. Raju S/o. Sundaram was in Sl. No. 15. Added further, as per Permanent B.P.(FB) No.22 (Secretariat Branch of the Tamilnadu Electricity Board) dated 14.05.1999, 198 number of contract labourers engaged in Erode Generation Circle was announced on 12.07.1999; a Committee comprising of Assistant Administration Officer, Executive Engineer / Power Houses / Mettur and the Superintending Engineer, Erode Generation Circle scrutinised the list of the aforesaid 198 contract labourers and arrived at the list of 185 contract labourers deleting 13 numbers of them as below:
i. Those who had worked for less than 480 days : 11 nos
ii. Involved in criminal case : 1 no
iii. Not working as on 05.01.1998 : 1 no
In the list of 185, the Petitioner's husband S. Raju was identified and he figured in Sl.No. 109.
14. Continuing further, in B.P.(ch) No. 161 (Adm Branch) dated 27.7.1998 of the Tamilnadu Electricity Board, orders were issued to pay daily wages at the PWD schedule of rates with effect from 01.07.1998 to the contract labourers. Since there were no official records to support the number of days worked by the contract labourers, because of representations and objections to the seniority of the list, the Tamilnadu Electricity Board decided to fix the seniority of the 198 contract labourers based on the actual number of days for which wages were paid by the Board relating to the period from 01.05.1999 to 31.12.2000. On that basis, the list of contract labourers, who had earned wages for more than 480 days, was prepared. The list for Erode Generation Circle consists of 163 contract labourers, in which, the Petitioner's husband name S. Raju was found at Sl.No.154.
15. By means of another proceedings in BP (FB) No. 3/ 29.01.2001, orders were issued to absorb 126 contract labourers of Erode Generation Circle as Helpers and the said orders issued, were upheld by the orders of the Division Bench of this Court in W.A.No.2647 of 2002 filed by the Tamilnadu Electricity Board. As per the seniority of the list of the above 163 contract labourers, the first 126 contract labourers of Erode Generation Circle were appointed as Helpers. However, the Petitioner's husband who was in Sl.No.154, had to wait for his turn. After this absorption, there were 65 contract labourers who were yet to complete 480 days out of the 198 and after deducting the discontinued persons, those involved in criminal case and bogus certificate cases. The petitioner's husband name S. Raju was at Sl.No.28 in the list.
16. The prime contention of the Respondents is that the Petitioner's husband S. Raju expired on 23.11.2003 and therefore, his name was not included in the final list of 61 contract labourers of Erode Generation Circle, who were absorbed as Helpers as per permanent B.P.No.14 (Adm.Br) 05.08.2005.
17. The Learned Counsel for the Petitioner contended that the Petitioner's husband, deceased S. Raju, worked for more than 480 days in the Respondent/Tamilnadu Electricity Board ever since 01.05.1999 and further, he was absorbed as Helper as per B.P.No. 22, dated 14.05.1999 and therefore, he is entitled to be given the permanent status as per the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981.
18. To lend support to the said contention, the learned counsel for the Petitioner cites the decision in Metal Powder Co.LTD., Tirumangalam and another VS. The State of Tamil nadu and another, [1985 (2) LLJ 376 at page 377] wherein the Division Bench of this Court has held that Permanent status is to be claimed only by a workman who has not only put in continuous service for a period of 480 days but also in service for 24 calendar months.
19. He also seeks in aid of the decision of the Hon ble Supreme Court in State of Tamil Nadu and others Vs. Nellai Cotton Mills Ltd and others, [1991 (1) LLJ 35 at page 38] wherein, in paragraph 9, it is laid down as follows:-
"9. That apart, the view taken by the High Court in striking down a portion of sub-section (2), in our opinion, cannot be found fault with. Sub-section (2) of Section 3 consists of three parts. The first part refers to interruption of service including service which may be interruption on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout. The second part consists of the portion which has been struck down by the High Court an unreasonable restriction on the right of the employer. The third part refers to cessation of work which is not due to any fault on the part of the workmen. The provisions under the first and the third parts seem to be similar to the terms of Section 25B of the Industrial Disputes Act which also provides for continuous service of the workman. The second part dealing with non-employment and discharge of a workman is distinct from the first and the third parts. It refers to the period during which there is no subsisting relationship of master and servant. We agree with the High Court that the word 'non-employment' would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service, much less in continuous service. Therefore, the period of non-employment or the period after discharge cannot be counted for the purpose of giving continuity of service. If the discharge is set aside and workman is reinstated by process known to law the workman automatically gets continuity of service. No special provision is necessary for such purposes."
20. He invites the attention of this Court to the decision in J.K.Cotton Spg. & Wvg. Mills Co. Ltd. Kanpur and State of U.P. And others [1998 WLR 514 at page 515] wherein this Court has held thus:
In the instant case, the second respondent after satisfying himself that the members of the petitioner union are entitled for the benefit of Section 3(1) of the Act, forwarded the representation of the members of the petitioner union for appropriate relief. Under such circumstances, if the first respondent Corporation failed to pass appropriate orders, giving benefits of conferring permanent status to the members of the petitioner union, certainly the first respondent shall face the consequences of prosecution provided under Section 6 of the Act. The respondents are directed to modify the proceedings dated 24.02.1989 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.
In those circumstances, further it is held that
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 Act of the petitioners to 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
21. The Learned counsel for the petitioner cites the decision of the Division Bench Judgement of this Court in Mamundiraj N. & Others Vs. Bharat Heavy Electricals Ltd., Trichy and Another [1999(1) LLJ 622 at page 623], wherein this Court has observed as follows:-
For conferment of permanent status on a workman, he is required to work in an industrial establishment for a period of 480 days in the proceeding 24 calendar months. Interrupted period of service for no fault of workman cannot be unaccounted for the purpose of calculating 480 days of continuous service.
Further, it is also, held that
The Management cannot be permitted to dwell in unfair labour practices, which is a glaring case in hand especially when the workmen though named as casual labourers were continuously in service. The Order issued in 1987 was to the effect that the workman was employed at Rs.17/- per day to maintain the Service Department w.e.f. November 21, 1987 on purely temporary basis while they were simply relieved of their duties w.e.f. July 23, 1988 and to ritually observe the statutory period of break in service required for depriving the workmen from conferment of permanent status for a cooling period of 3 months was given and reemployed. The methodology adopted by the Management depriving the workmen of conferment of permanent status as enjoined by the 1981 Act by bringing about the interruption of service while there was still work force required to continue the work uninterruptedly as has been demonstrated by the events of keeping the workmen in employment for 480 days in preceeding 24 calendar months. If it is not an unfair labour practice, it is difficult to assume what more can be the unfair labour practice.
Moreover, in the said decision, it is also laid down by this Court as under:
It is clear that the Management has made a crude attempt to deprive the workmen of the benefit which the Statute has specifically conferred on them. The continuous service in the context of the scheme and the text of the Act does not postulate a continuous relationship of Master and Servant. What the Statute accepts is that the workmen should be in the employment of the employer for a period of 480 days in preceding 24 calendar months. To hold otherwise would not only alter the provisions of the Act as well as the object but would result in draconian rule of law resulting in perpetuating injustice.
22. Apart from the above, the Learned counsel for the petitioner relied on the following decisions:-
a. In the decision of this Court in S. Gandhimathi Vs. The Deputy Registrar of Cooperative Society (Milk) Tirunelveli & 3 others [2003 WLR 479 at page 484], this Court has held that
By applying the rule of fiction the deceased is deemed to have been regularised. In terms of The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act, the deceased ceased to be a casual and deemed to be a regular employee with permanent status on his completing 480 days and on the date of death he was a permanent employee and therefore his son for whose benefit the writ petition has been filed is entitled to be considered for appointment on compassionate ground. The contention that the deceased always remained a casual labourer as no orders have been passed even though proposal was sent for regularisation cannot be sustained.
b. In the decision of Superintending Engineer, Vellore Electricity Distribution Circle, Vellore, and others Vs. Inspector of Labour, Perambalur and others [2004 (3) L.L.N at page 598 and at special page 599 and 560], this Court has held as under:
The fact about the engagement of the services of the concerned workmen was never disputed by the Board. The only stand was that since they were all contract workmen, they were not entitled for any benefit to be conferred under the provisions of the Act. But even in respect of the said stand except the ipsi dixit of the stand taken in the counter nothing was placed before the Inspector of Labour. Even about the non-maintenance of the required forms under the provisions of the Act, the stand of the Board was that since they were all contract labourers, the question of maintaining those records did not arise. It is pertinent to note that while it was contended that the persons were employed as contract labourers under certain guidelines, nothing was placed before the Inspector of Labour in support of the said stand.
It can be safely held that by virtue of S.5 read along with rule 6(4), the Inspector of Labour can pass positive orders conferring permanent status to the workmen concerned after examining the representation made before him and after holding an enquiry. The Divisoin Bench of this Court has also held so in the judgment in Metal Powder Company Ltd., case (1985 (2) L.L.N. 738). In spite of all these if it were to be held that irrespective of the said statutory stipulations the Inspector of Labour is not entitled to pass positive orders conferring permanent status, such powers vested with him under the provisions would only result in futility. It is true that under S.5 read with rule 6(4) of the Act, the Inspector of Labour can also direct in the event of any defects in the maintenance of registers to rectify such defects and give appropriate directions to that effect. But, the same did not mean that, that is the only power vested in the Inspector of Labour and nothing more. The well known canon of construction is that no provision in a statute can be held to be redundant and therefore, when under S.5 of the Act specific powers have been provided to the effect that the Inspector of Labour can enter at all reasonable times into any industrial establishments, make necessary examinations of the records and record necessary evidence of such persons as he may deem necessary for carrying out the purposes of the Act and when the said provisions read along with rule 6(4) which specifically provides that such exercise of powers provided under S.5 can be made while dealing with a representation and by passing a positive order conferring permanent status, it will have to be held that the Inspector of Labour would be fully competent to issue an order conferring permanent status to the workmen based on the evidence available before it based on the enquiry held by him, if it was brought out that such a benefit should necessarily be conferred on the concerned workmen. It can only be said that to hold otherwise would only defeat the whole purpose of the enactment, the object of which was that wherever workmen are being kept under temporary rolls, thereby denied of various statutory as well as non-statutory benefits, which are extended to the permanent workers and wages are paid on consolidated basis far below the occupational wages without the benefit of dearness alloowance, which is paid to the permanent employees, to defeat such deprivation and ensure that their real status is affirmed.
While the exercise of powers vested with the Inspector under the provisions of the Act is summary in nature, the one under the provisions of the 1947 Act may be an elaborate one. Nevertheless the same does not mean that by exercising the power under the provisions of the Act, the Inspector of Labour would be trepassing into the adjudication process contemplated under the provisions of the 1947 Act.
c. In the decision in S. Vijayalakshmi Vs. Tamil Nadu Water Supply and Drainage Board (represented by its Managing Director, Chennai [2005 (3) L.L.N. 706 at page 707], this Court has held as follows:-
A bare perusal of the S.3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, casts an obligation on the employer to confer permanent status on an employee who has completed 480 days work in course of two years. During the life time of the husband of the petitioner, no such permanent status was actually conferred by any order of the management. It is true that jurisdiction has been conferred on the Inspector to conduct enquiry if necessary to find out whether an employee has completed 480 days or not. However, merely because no such enquiry had been conducted by the Inspector, the petitioner's husband cannot be denied the benefits of the Act. In view of the mandatory nature of the provision, it shall be taken that an employee who had completed 480 days in a period of two years was permanent.
d. In the decision in Hindustan Petroleum Corporation, Ltd. (represented by its Chairman cum Managing Director), Mumbai and another Vs. Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, Chennai and another [2008 (4) L.L.N. at Page 254], this Court has held as under:
Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days of service within a period of two calendar years then, such workmen getting permanent sttus cannot be questioned by any management. Such conferment of permanent status to the workmen cannot be labelled as violation of Arts. 14 and 16 of the Constitution. The effect of a local enactment conferring permanent status to workmen was never considered by any Court so far.
e. The Leaned Counsel for the Petitioner cites the order dated 04.04.2003 in W.P.Nos.20911 to 20916 of 1998 passed by this Court [(CDJ) 2003 MHC at page 753 in paragraph 12], wherein it is held that
The portion of the proceedings of the 2nd respondent in all these writ petitions holding that the workman is entitled for conferment of permanent status only from the date on which his proceedings are communicated is ordered to be deleted and this Court holds that each one of the workman for whose benefit the writ petition has been filed shall be deemed to have been conferred with permanent status from the date on which each employee completed 480 days of continuous service within a period of 25 calendar months.
f. Also, he relies on the order dated 27.07.2007 in W.A.No. 411 of 1998 and 2410 of 1999 passed by the Division Bench of this Court between The Tamil Nadu Handicrafts Development Corporation Limited, rep. by its Secretary, No.759, Anna Salai, Madras 2 and another Vs. The Inspector of Factories, Range No.II, Madurai 2 and two others, wherein in paragraphs 7 and 8, it is laid down as follows:-
7. It is not in dispute that 23+1, i.e., all the 24 workmen have completed more than 480 days of service in 24 calendar months. Details have been shown in the impugned order dated 4th July, 1996 and 9th April, 1997 and the list attached thereto. In this background, the appellant cannot deny the benefit to which such workmen are entitled under the law.
8. The other ground taken by the appellant is that no proper opportunity was given by the first respondent to the appellant to defend its case, but such submission cannot be accepted in view of the communication between the parties and the counter affidavit filed by the frirst respondent. According to the first respondent, the appellant's factory is coming under the purview of the Factories Act and Rules and is an establishment as per Section 2(3) (a) of the Permanent Status Act, 1981. The first respondent has specifically stated that opportunity was given to the appellant to explain itself and inspection was made in the premises of the appellant on 30th May, 1996 and the appellant was called for an enquiry on 10th June, 1996 at 10.00 a.m and enquiry under Rule 6 (4) was conducted on 10th June, 1996 at 11.00 a.m. in their presence. After going through the records, including form 25-B issued by the appellant, the respondent, the respondent could gather the date of entry of the workman in the service and also verified attendance particulars of 1993, 1994 and 1995 as were available in the office of the appellant. Letter No.E/1755/96 dated 3rd June, 1996, shows that the Manager of the appellant's Corporation at Madurai was asked to produce the attendance register of the year 1993, 1994 and 1995 at 3.00 p.m. on 7th June, 1996.
In respect of other 23 persons, a letter was issued to the Manager of the Corporation at Madurai vide No.NE/872/97 dated 17th March, 1997. The date was subsequently postponed to 7th April, 1997 at 11.00 a.m. And the appellant having been informed, its Superintendent, Pumpuhar Brass products, production Unit, Madurai, by his letter Na.Ka.No.178/Mahi/97 dated 5th April, 1997 requested to furnish letter dated 6th Feb., 1997, as was submitted by the General Secretary of the Workers' Union. Thus it will be evident that proper opportunity was given to the appellant and after detailed enquiry, the orders were passed by the first respondent, Inspector, who is the competent authority.
g. The Learned Counsel for the Petitioner cites the Division Bench Judgment of this Court dated 16.03.2006 in W.A.No. 845 of 2000 between M/s Hindustan Photo Films Vs. The Deputy Chief Inspector of Factories & Others [(CDJ) 2006 MHC at page 935], wherein paragraph 6, it is observed and held as follows:
6. Even before us, the learned counsel for the appellant, by drawing our attention to the order of the Division Bench dated 2.9.2003 made in W.A.Nos.1117 to 1132 of 1998, submitted that the management has no objection to pass a similar order as made therein. However, the learned counsel appearing for the respondent -workmen has brought to our notice that the workmen in that case were trainees and ousted from service at the instance of the management. In such circumstances, the direction issued in respect of those persons cannot be applied to the respondents herein, who worked continuously for several years and after proper enquiry, their services were recognised by the competent authority and orders issued. In the light of the distinction and in view of the categorical finding by the authority, which was upheld by the learned single judge, we are unable to accept the only argument advanced by the learned counsel for the appellant.
h. He also relies on the Division Bench Judgment of this Court dated 23.02.2007 in W.A.No. 1186 of 2006 between The Lakshmi Mills Company Ltd., Palladam Branch, Coimbatore Vs. The Deputy Chief Inspector of Factories, Tiruppur & Another (CDJ) 2007 MHC 1303, wherein at paragraph 6, it is held that :-
6. Regarding the second contention, it is clearly found that the appellant did not seriously dispute the length of service put in by the workmen, before the authority and the authority had sufficient evidence to come to the conclusion that the workmen had completed 480 days of service in 24 calender months. Once that factum is proved, Section 3 of the Tamil Nadu Act 42 of 1981 makes the permanency automatic without any scope for further enquiry. Besides this, the power vested on the first respondent is of summary nature and he is not required to conduct any elaborate enquiry. In the present case, the length of service of the workmen is not disputed. Therefore, there is no further enquiry contemplated in the Act.
23. We deem it appropriate to point out that a workman, who had rendered in a continuous service of 480 days in a period of 24 calendar months, should be conferred with the permanent status in an establishment.
24. It is to be pointed out that every employer is supposed to maintain in Tamil language or in English a register of workmen in Form 1 prescribed under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status To Workmen) Act, 1981 and also prepare and exhibit the list of workmen with sufficient details for perusal by the workmen. It may not be lost sight of that, such list ought to be sent to the Inspector within a fortnight from the close of each half-year with a declaration that it has been exhibited in the establishment for perusal by the workmen. The employer should send an half- yearly return in Form-2 at the end of each half-year.
25. If an employee who comes to know that his name has not been entered in the list or finds that the entries have not been made properly /correctly or if he finds that though entries regarding his service have been made correctly but he has not attested the entries in the register maintained by the employer, may make a representation to the Inspector concerned, who after examining the representation or after making enquiries, may issue suitable directions to the employer for the rectification of the register of workman or for the issue of orders conferring permanent status to the workman concerned.
26. Section 5 of the Act speaks of the Powers and Duties of Inspectors. Section 6 of the Act refers to Penalties . Rule 3 of The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Rules, 1981 deals with the powers of Inspector in addition to the powers conferred by virtue of Section 5 of the Act. Rule 4 contemplates that the employer of an industrial establishment shall furnish any information that an Inspector may require for the purpose of satisfying himself as to whether any provision of the Act or the rules made thereunder has been complied with or whether any order of Inspector has been duly carried out etc., Rule 6 (1) deals with the Maintenance of Registers by Employers. As per Rule 6, every employer of an industrial establishment shall maintain a registrar of workman in Form 1 and shall produce the register whenever it is required by the Inspector having jurisdiction over the industrial establishment etc.,
27. Section 2(4) of The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 defines workman as follows:
(4) workman means any 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 express or implied (and includes a badli workman),
but does not include any such person, ..
a. who is employed in the police service or as an officer or other employee of a prison; or
b. who is employed mainly in managerial or administrative capacity; or
c. who, being employed in a supervisory capacity, (draws wages exceeding three thousand and five hundred rupees per mensem) or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
(Explanation.-- Badli workman means a workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment)
28. The essential test is to determine the existence of right in the matter to supervise and control a person as regards the work to be turned out by him. As a matter of fact, the definition ' Establishment ' is taken from the Tamilnadu Shops and Establishments Act, 1947 and the same has found a place in Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and as such, even if no order of regularisation is passed, a person is deemed to have been regularised as per Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 after completing 480 days of work in a period of 24 calender months. Even in a case, a person / employee has worked for more than 240 days in a year and if the Employer / Management fails to produce proper documentary evidence like voucher, record, etc., an adverse inference can be drawn to the effect that the plea projected by the said person is a trustworthy and a fruitful one.
29. As far as the present case is concerned, it is an admitted fact that the Petitioner s husband Raju was a contract labour with the Tamilnadu Electricity Board from 01.05.1999 and that he was absorbed as per B.P.(FB).22 of the Tamil nadu Electricity Board dated 14.05.1999 as Helper. Unfortunately, he committed suicide on 23.11.2003. His death certificate was issued by the Mettur Municipality on 12.12.2003. Even the certificate dated 01.06.1999 issued by Assistant Executive Engineer, Civil Maintenance, Power Houses, Mettur dam, to the petitioner s husband S. Raju showed that he worked as a contract labour in Civil Section, Power Houses, Mettur Dam under Various Contractors, for the period from 30.09.1998 to 30.04.1999 without break in service.
30. A reading of the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 unerringly points out that it is the duty of an employer to confer permanent status on a workman/employee who had completed 480 days of work in a period of 24 calender months.
31. As per B.P.No.14 (Adm.Br) dated 05.08.2005, the Petitioner s husband name S. Raju could not find a place in the final list of 61 contract labourers of Erode Generation Circle, who were absorbed as Helpers. The Respondents/Electricity Board contend that at that time the petitioner s husband name S.Raju S/o. Sundaram was in Sl.No.154 and therefore, he had to wait for his turn.
32. The seniority list of 163 contract labourers was prepared as per the Judgment passed in W.A.No.2647 of 2002 filed by the Tamilnadu Electricity Board. Therefore, earlier B.P.(FB) No.3 dated 29.01.2001 was issued to absorb 126 contract labourers of Erode Generation Circle as Helpers.
33. Admittedly, because of the tragic demise of the Petitioner s husband on 23.11.2003, his name could not find a place, in the final list of 61 contract labourers of Erode Generation Circle who were absorbed as Helpers as per B.P.no.14 (Adm.Br) dated 05.08.2005. Had he been alive, then certainly, the Respondents would have showered him with the benefit of conferment of permanent status. During the life time of the Petitioner s husband, he was not conferred with permanent status, which was not disputed on both sides.
34. On going through the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, we are of the considered view that the Petitioner s husband, completed 480 days of work in a period of 24 calender months (during his lifetime), and would become automatically a permanent employee under the Respondents/Tamilnadu Electricity Board, because of the simple fact that the Section mandates the Respondents to confer permanent status on the Petitioner s husband S.Raju and the conferment of permanent status to the Petitioner s husband S. Raju / Employee / Workman would not depend upon his employer on his own or on a direction given by the competent authority under the Act.
35. The words employed in Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, are not directory in nature, in our considered opinion. Per contra, they are mandatory in character. In short, the deeming clause of Section 3(1) of the Act as aforesaid is explicit and admits of no exception as opined by this Court. Furthermore, the Petitioner's husband late Raju satisfied the essential condition of, being a worker and the Tamil nadu Electricity Board being his master, so as to claim the permanent status. Thus, the logical conclusion that can be deduced in the present case is that even if no order of regularization was passed in respect of the petitioner's husband Raju (since deceased), the statutory benefit of permanent status is to be necessarily granted to him by the Respondent/Tamil nadu Electricity Board.
36. We also hold that even in the absence of any enquiry conducted by the Inspector under the Act, the right conferred upon the Petitioner s husband to claim the benefit of permanent status could not be denied by any means because of the simple fact that Section 3(1) of the Act imposes an obligation upon the Respondents/Electricity Board Authorities to confer permanent status of the Petitioner s husband, who had rendered 480 days of work continuously in a period of 24 calender months and on that basis, we hold that the Petitioner s husband deceased S. Raju is entitled to be made permanent by the Respondents / Tamil nadu Electricity Board Authorities and once, in law, he was entitled to the benefit of conferment of permanent status, the resultant benefit could not be deprived to the Petitioner (wife) notwithstanding the fact that during his lifetime no such permanency was conferred on him. Viewed in that perspective, we hold that a workman, who had completed 480 days of continuous service in a period of 24 calender months, would become automatically a permanent employee under the employer, even if, an employer had not conferred him with the permanent status or even if, no direction was issued by the competent authority in this regard under the Act, 1981 or the Rules framed thereunder. Accordingly, we answer the Reference.
37. Also, on the basis of Equity, Fair play, Good Conscience and even a matter of prudence, we direct the Respondents/Tamil nadu Electricity Board Authorities to issue appropriate proceedings in making the petitioner's deceased husband Raju as a permanent employee of the Board and to pay the petitioner family pension, family benefit and other terminal benefits including Gratuity as per Rules and regulations from time to time in force. The Respondents are further directed to consider and dispose of the representation of the Petitioner s dated 08.12.2003 and 08.01.2004 wherein she had prayed for Compassionate Appointment being provided to her daughter Valarmathi as per Rules and in accordance with law within a period of four weeks from the date of receipt of copy this order, (if not already considered and disposed of.)
38. The Respondents are directed to pay the Petitioner s family pension and other terminal benefits including gratuity etc., due to be paid to the petitioner s deceased husband within a period of eight weeks from the date of receipt of copy of this order. As such, the writ petition is allowed in above terms. No costs.
1. The Chief Engineer (Personnel),
Tamilnadu Electricity Board,
800, Anna Salai,
Chennai 600 002.
2. Superintending Engineer,
Erode Hydro Generation Circle,
Tamilnadu Electricity Board,
ELIPE DHARMA RAO,J.
PRE DELIVERY ORDER IN
W.P.No.5980 of 2004
03. 08 .2012