மின்வாரிய ஒப்பந்த தொழிலாளர்கள் 55 பேரை பணி நிரந்தரம் செய்ய தனி நீதிபதி பிறப்பித்த உத்தரவை எதிர்த்து மின்வாரியம் தாக்கல் செய்த மேல்முறையீடு மனுவை சென்னை உயர்நீதிமன்ற மதுரைக் கிளை தள்ளுபடி செய்தது.கரூர் மாவட்டத்தில் மின்வாரிய ஒப்பந்த தொழிலாளர்களாக பணிபுரியும் அசோக் உள்ளிட்ட 55 பேர் தங்களை பணி நிரந்தரம் செய்யக்கோரி தொழிலாளர் நீதிமன்றத்தில் வழக்கு தொடர்ந்தனர்.இந்த வழக்கை விசாரித்த நீதிமன்றம், 55 பேரும் ஒப்பந்த தொழிலாளர்களாக பணி முடித்த 480 நாளில் இருந்து அவர்களைப் பணி நிரந்தரம் செய்ய மின்வாரியத்துக்கு 2010 ஜனவரியில் உத்தரவிட்டது.இந்த உத்தரவை எதிர்த்து மின் வாரியம் சார்பில் சென்னை உயர்நீதிமன்ற மதுரைக் கிளையில் மேல்முறையீடு செய்யப்பட்டது.
இந்த மேல்முறையீடு மனுவை 2014-இல் தனி நீதிபதி தள்ளுபடி செய்தார்.
இந்த உத்தரவை எதிர்த்து மின் வாரியம் தரப்பில் மேல்முறையீடு மனு தாக்கல் செய்யப்பட்டது.அதில், மனுதாரர்கள் ஒப்பந்த அடிப்படையில் மின் கம்பம் நடுவது, வயர்கள் பதிப்பது போன்ற பணிகளைச் செய்து வந்தனர். அவர்களுக்கும் மின் வாரியத்துக்கும் நேரடி தொடர்பு இல்லை. அவர்களுக்கு உதவிப் பொறியாளர்கள் பணிச் சான்று வழங்கியதாக கூறியுள்ளனர். பணிச்சான்று வழங்க உதவிப் பொறியாளர்களுக்கு அதிகாரம் கிடையாது. எனவே அதன் அடிப்படையில் அவர்களைப் பணி நிரந்தரம் செய்யக்கோருவது முறையல்ல என்று குறிப்பிடப்பட்டிருந்தது.இந்த மனு நீதிபதிகள் எம்.சத்தியநாராயணா, ஜெ.நிஷாபானு ஆகியோர் அடங்கிய அமர்வு முன்பு விசாரணைக்கு வந்தது.அப்போது, மனுதாரர்கள் 1998-இல் இருந்து மின்வாரியத்தில் பணிபுரிகின்றனர். அவர்களைப் பணி நிரந்தரம் செய்தால் நிரந்தர ஊழியர்களுக்கான சலுகைகள், பணப் பலன்களை வழங்க நேரிடும் என்ற காரணத்தால் பணி நிரந்தரம் செய்யாமல் வைத்துள்ளனர் என மனுதாரர் தரப்பில் வாதிடப்பட்டது.இதைப் பதிவு செய்த நீதிபதிகள் பிறப்பித்த உத்தரவு:
ஒப்பந்த தொழிலாளர்கள் பணி நிரந்தரம் செய்வது தொடர்பாக 2004-ஆம் ஆண்டிலேயே உயர்நீதிமன்றம் உத்தரவிட்டுள்ளது. அந்த உத்தரவுப்படி மின் வாரியத்தின் மேல்முறையீடு மனுவை ஏற்க முடியாது என்று கூறி மனுவைத் தள்ளுபடி செய்து, ஒப்பந்த தொழிலாளர்களை பணி நிரந்தரம் செய்ய உத்தரவிட்டனர்.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.11.2016
Reserved on : 11.11.2016
Delivered on : 24.11.2016
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
WA.(MD). Nos.339 of 2015 and 340/2015 & MP (MD) Nos.2 & 2/2015 & CMP (MD)
No.10630/2016 in WA.(MD) No.339/2015
1.The Chairman
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
2.The Chief Engineer [Personnel]
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
3.The Superintending Engineer
TANGEDCO, Karur Electricity
Distribution Circle, Karur. ..
Appellants in both the
writ appeals
Versus
1.The Inspector of Labour
Karur.
2.B.Kumareshan
3.M.Mathivanan
4.M.Kannan
5.G.Sampathkumar
6.M.Angamuthu
7.K.Sivakumar
8.P.Rengaraj
9.S.Narendiran
10.P.Senthil
11.D.Subburaju
12.K.Thiurmoorthy
13.M.Muruganandam
14.P.Ramachandran
15.M.Marudamuthu
16.L.Murugan
17.V.Rajan
18.K.Ramasamy
19.R.Siva
20.R.Vijayakumar
21.K.Palanisasmy
22.P.Bharathi
23.M.Rajendran
24.P.Shanmugam
25.S.Kandasamy
26.M.Shanmugam
27.R.Veeramani
28.T.Karuppasamy
29.M.Natarajan
30.M.Rengasamy
31.K.Veeramani
32.M.Perumal
33.S.Bakkiyaraj
34.K.Sivasankar
35.E.Rengan
36.G.Kannadasan
37.V.Annadurai
38.M.Arichandran
39.V.Namperumal .. Respondents in WA
(MD) No.339/2015
1.P.Shanmugam
2.T.Subburaj
3.K.Ramasamy
4.R.Siva
5.K.Palanisamy
6.K.Veeramani
7.L.Murugan
8.M.Maruthamuthu
9.E.Rengan
10.M.Arichandran
11.P.Bharathi
12.V.Namperumal
13.K.Sivakumar
14.R.Vijayakumar
15.M.Angamuthu
16.P.Ramachandran
17.P.Senthil .. Respondents
in WA (MD) No.340/2015
Prayer: Writ Appeals filed under Clause 15 of the Letters Patent Act
against the order of the Learned Single Judge in WP (MD) Nos.2653/2013 and
14674/2012 dated 25.08.2014.
!For Appellants in both
the Writ Appeals : Mrs.S.Srimathy for
Mr.S.M.S.Johnny Basha
^For RR 2,3,5,9,23 & 28
in WA (MD) No.339/2015 : Mr.C.K.Chandrasekkar for
Mr.A.Rahul
For R24 in WA (MD)
No.339/2015 : Mr.S.Gokulraj
For RR 6 to 8, 10, 12 to
19, 21, 22, 25 to 27, 29
31 to 39 in WA (MD)
No.339/2015 : Mr.G.Sankaran
For RR4, 11, 20, 30 in
WA (MD) No.339/2015 : No appearance
For RR 1 to evidence, 5 to 13
15 & 16 in WA (MD) No.
340/2015 : Mr.G.Sankaran
For R4 in WA (MD) No.
340/2015 : No appearance
:COMMON JUDGMENT
M.SATHYANARAYANAN, J.,
These writ appeals are preferred by the Tamil Nadu Electricity Board
[in short ?TNEB?], now the Tamil Nadu Generation and Distribution Corporation
Limited [in short ?TANGEDCO?], aggrieved by the orders conferring Permanent
Status by the 1st respondent / the Inspector of Labour, Karur, on the private
respondents under the provisions of the Tamil Nadu Industrial Establishments
[Conferment of Permanent Status to Workmen] Act, 1981 [in short ?Conferment
of Permanent Status to Workmen Act].
2 The facts leading to the filing of these writ appeals,
briefly narrated, are as follows:-
WA (MD) No.339/2015:- [against WP (MD) No.2653/2013]
The appellants / the Tamil Nadu Electricity Board [TNEB] had filed the
above said writ petition challenging the common order passed by the 1st
respondent ? Inspector of Labour, Karur under the provisions of the above
said Act, ordering conferment of permanent status on the private respondents.
{B} In the affidavit filed in support of the said writ
petition, the Superintending Engineer, Karur Electricity Distribution Circle,
Karur, would aver among other things that the private respondents have not
worked directly under TNEB and that there is no relationship of employer and
employee between them and in any event, the 1st respondent herein has no
authority under the provisions of the said Act, to adjudicate their claim
conferring permanent status on the private respondents and further that, the
claim of the private respondents / workmen that they have worked continuously
for a period of more than 480 days in 24 Calendar months, is also under
serious dispute and their claim in that regard, is not factually correct and
their services were engaged for execution of certain works through
contractors only and the wages were paid by the said contractors to the
workmen and not by TNEB. Insofar as the Service Certificates said to have
been issued by the concerned Assistant Engineers of TNEB, the private
respondents / workmen, it is contended that the said documents cannot be
relied upon as the officials were not competent or authorised to issue the
same and as such, cannot be taken as valid certificates.
WA (MD) No.340/2015 :- [against WP (MD) No.14674/2012]
The private respondents in this writ appeal filed the said writ
petition praying for issuance of a writ of mandamus directing the appellants
herein who were arrayed as the respondents in the said writ petition, to
implement the order of the 1st respondent, viz., the Inspector of Labour,
Karur, dated 29.01.2010, passed in CP.No.809/2008 etc., batch, and to
regularise their employoment / confer permanent status on them.
{B} In the affidavit filed in support of the writ petition, the
petitioners therein / private respondents herein, would state among other
things that they were appointed as temporary employees in various positions
under the 3rd appellant herein and after working in that capacity for more
than the statutory period, they were optimistic that their services will be
regularised and however, it was not done so and therefore, they were
constrained to approach the 1st respondent herein by invoking the provisions
of the Conferment of Permanent Status Act and the said official, after
conducting enquiry, has passed a common order dated 29.01.2010, directing the
appellants herein to confer the permanent status and despite very many
representations, the said order has not been implemented and hence, they came
forward to file the said writ petition.
{C} One K.Sivasankar, had also filed a contempt petition in
Cont.P.(MD) No.1218/2013, alleging wilful disobedience of the order dated
26.04.2013 made in WP (MD) No.7114/2013, to punish the Superintending
Engineer, Karur Electricity Distribution Circle, TNEB, Karur.
3 A learned Single Judge of this Court, has taken up the said
two writ petitions, viz., WP (MD) Nos.2653/2013 and 14674/2012, as well as
the contempt petition, viz., Cont.P.(MD) No.1218/2013, together for final
disposal and taken note of the judgment dated 01.12.2013 made in WA (MD)
No.774/2012 [R.Ashok and 19 others Vs The Chairman, Tamil Nadu Generation and
Distribution Corporation Limited [TANGEDCO]-formerly TNEB, Chennai, The Chief
Engineer [Recruitment], TANGEDCO, Chennai-2, and the Superintending Engineer,
Karur Electricity Distribution Circle, TANGEDCO-formerly TNEB, Karur],
wherein, the implementation of the order passed by the 1st respondent herein,
came up for consideration and a positive order came to be passed, allowing
the writ petitions with a further direction, directing the very same
appellants herein to confer the permanent status on the private respondents
therein and also taken note of the dismissal of WP (MD) No.3937/2013 and also
closed the contempt petition.
4 The official respondents therein, aggrieved by the order,
allowing both the writ petitions, had filed these writ appeals. This Court,
while entertaining the writ appeals, had granted an order of interim stay and
to vacate the same, CMP (MD) No.10630/2016 was filed.
5 Mrs.S.Srimathy, learned counsel appearing for the
appellants / respondents in the above said writ petitions, would vehemently
contend that the Certificates/documents produced by the private respondents /
workmen / contract labourers, cannot be taken as a conclusive proof as most
of the documents were issued by the concerned Assistant Engineers of TNEB and
they were not authorised / competent to issue such certificates and in the
light of the fact that none of the private respondents have been engaged
directly by TNEB ; but were engaged by the contractors for the purpose of
doing digging, laying cables etc., and that the wages were also distributed
by them only, their services cannot be regularised, under the garb of the
orders passed by the 1st respondent herein, in terms of the provisions of the
Conferment of Permanent Status to Workmen Act. It is the further submissions
of the learned counsel for the appellants that the scope of exercise of
powers by the 1st respondent under the provisions of the above said Act, is
very limited and small in nature. Admittedly, ID.No.106/2000 filed by some
of the persons, who were similarly placed, was pending adjudication before
the Industrial Tribunal and as such, the 1st respondent ought not to have
entertained the petitions at all. It is the further submission of the
learned counsel for the appellants that fraud has been practiced by the
private respondents by producing bogus Certificates and in all fairness, the
1st respondent ought to have gone into the legality and tenability of those
documents and given a finding and by a cryptic common order, has directed the
appellants herein to confer the permanent status and it may lead to grave and
catastrophic consequences and prays for interference.
6 Per contra, Mr.C.K.Chandrasekkar, Mr.A.Rahul, Mr.S.Gokulraj
and Mr.G.Sankaran, the respective learned counsel for the private respondents
would submit that the points urged by the learned counsel for the appellants
were raised in the earlier round of litigations, considered and were rejected
and positive orders have been passed, directing the appellants herein to
confer permanent status on the private respondents and the 3rd appellant
herein is also estopped from doing so, in the light of the judgment dated
01.12.2013 made in WA.(MD) No.774/2012 [cited supra], which was also
confirmed by the Hon'ble Supreme Court in SLP [CC] No.7953/2015 vide order
dated 30.04.2015 and as such, it is not open to the 3rd appellant herein to
raise the very same issue every time whenever the litigation is filed and
such a kind of attitude / act deserves to be condemned. It is further
contended that the appellants/TNEB [now TANGEDCO], being a statutory
Organization, is bound to comply with the orders passed by a competent
statutory authority and however, for the reasons best known to them, are not
doing so and also drawn the attention of this Court to the judgment reported
in 2004 [3] LLN 598 [The Superintending Engineer, Vellore Electricity
Distribution Circle Vs. The Inspector of Labour and others] and the yet
another judgment reported in 2009 [4] MLJ 472 [The Superintending Engineer,
Nagapattinam Electricity Distribution Circle Vs. the Inspector of Labour and
others] and would contend that very same points were also urged, especially
by the first appellant herein and were rejected and prays for dismissal of
these writ appeals with exemplary costs. The respective learned counsel
appearing for the private respondents, apart from relying upon the above
cited two judgments, also placed reliance upon the judgments reported in 1997
[2] SCC 806 [State of U.P. Vs. Nawab Hussain] and 2015 [4] LLJ 736 Mad [DB]
[The Superintending Engineer, Tamil Nadu Generation and Distribution
Corporation Ltd., Cuddalore Vs. P.Kothandam and another].
7 This Court paid it's anxious consideration and best
attention to the rival submissions and also perused the typed set of
documents as well as the decisions relied on by the respective learned
counsel for the private respondents.
8 The following questions arise for consideration in these
writ appeals:-
[a] Whether the appellants / TNEB [now TANGEDCO], in the light
of the judgments reported in 2004 [3] LLN 598 and 2009 [4] MLJ 472 [DB], are
bound to implement the orders passed by the 1st respondent herein and
thereby, confer the permanent status on the private respondents? and
[b] Whether the grounds urged by the appellants herein are hit
by the principle of res judicata?.
9 The facts leading to the engagement of the workmen in large
numbers through contractors and also directly by the appellants, have been
narrated in the above cited two judgments and therefore, it is unnecessary to
re-state the entire facts once again.
10 In the judgment reported in 2004 [3] LLN 598, the learned
Single Judge [The Hon'ble Mr. Justice F.M.Ibrahim Kalifulla ? as the Hon'ble
Judge then was], has traced out the history, especially, with regard to the
challenge made by the Tamil Nadu Electricity Board as to the orders passed by
the respective Inspectors of Labour under the provisions of the Conferment of
Permanent Status to the Workmen Act, 1981 and also the writ petitions filed
by the concerned workmen, through their Union and directed TNEB and its
officials to implement the order passed by the respective Inspectors of
Labour, ordering conferment of permanent status and to grant consequential
benefits. It was also contended on behalf of TNEB that the concerned
Inspectors of Labour have passed the orders, conferring permanent status on
total misunderstanding of the powers vested with them and were in breach of
procedure prescribed under the said Act and by ordering conferment of
permanent status, they have also arrogated powers that are only available
with the Adjudicated Forums constituted under the provisions of the
Industrial Disputes Act, 1947. The learned Judge, while adjudicating the
grounds raised by TNEB, had taken note of the judgment in Metal Powder
Company Limited, Madras and another Vs. the State of Tamil Nadu and another
reported in 1985 [2] LLN 738, wherein the validity of the Conferment of
Permanent Status Act, came to be upheld and the judgment rendered by the
Hon'ble Supreme Court of India, in State of Tamil Nadu Vs. Nellai Cotton
Mills reported in 1990 [1] LLN 685, which confirmed the order, upholding the
vires of the said Act and also taken note of the fact that challenge was made
by the State only in respect of Explanation to Section 3 of the said Act on
the ground that it was incapable of enforcement. It is relevant to extract
the following paragraphs:-
?.......
32 While so, on behalf of the Board, it was contended that there was
no agreement with the concerned workmen for doing the jobs like erection of
poles, stringing of lines and handling of materials in the stores. According
to the petitioner / Board, such works were executed on contract basis under
certain guidelines and that concerned contractors used to engage the
requisite labour and pay the wages to the persons employed by him. The
petitioner / Board therefore contended that there was no direct employer and
employee relationship between the Board and the concerned workmen. It was
the definite case of the Board that no attendance register was maintained and
therefore, the claim of the workmen that they have worked more than 240 days
in a year was not true. As far as the certificates issued to the concerned
workmen by the junior/assistant engineers, it was contended that such
officers were not empowered to issue such certificates. It was contended
that since none of the concerned workmen in these writ petitions were govrned
by the report of Hon'ble Justice Sri Khalid, who came to be appointed by the
order of the Hon'ble Supreme Court they were not entitled for any relief. It
is necessary to be stated that no oral evidence was let in on the side of the
Board and there was also no cross-examination of the deposition of the
concerned workmen before the Inspector of Labour. In the above stated
situation, the question for consideration is as to whether the conclusion of
the Inspector of Labour that the concerned workmen had put in more than 480
days in 24 calendar months was correct and consequently they are entitled for
the conferment of permanent status as has been granted.
33 While considering the said question, it will have to be stated
that while on the one hand, the evidence placed before the Inspector of
Labour on the side of the concerned workmen remained, the same was also not
controverted, no iota of evidence was placed on the side of the Board as to
either about the nature of the employment or about the details of their
employment. The Board was rest content with the various contentions raised
by it in its counter. But, 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 ipse 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 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. The claim of the concerned workmen
was that under the guise of contract labourers, they were asked to perform
various jobs, which were required to be performed by the regular employees of
the Board.
......
35 Therefore, I am unable to accept the submission made on behalf of
the Board that the exercise of the power by the Inspector of Labour in
conferring permanent status after holding necessary enquiries contemplated
under section 5 read along with rule 6[4] should be construed as arrogating
to himself the powers available to the other adjudicatory forums created
under the provisions of the Industrial Disputes Act, 1947. It will have to
be stated that 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 Industrial Disputes 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 trespassing into the adjudication
process contemplated under the provisions of the Industrial Disputes act. In
this context, if the judgment of the Supreme Court in Nirchiliya case [1990
[2] LLN 3] [vide supra] is applied, it can be safely held that where there is
no prohibition under the provisions of either the Industrial Disputes Act or
the Act, exercise of the power in the manner in which it can be done by the
Inspector of Labour under the Act cannot be found fault with. It will have
to be stated that such an exercise would be well within the statutory
limitations provided under the Act. In fact, in the above-referred to
judgment of the Hon'ble Supreme Court, the question for consideration was
whether the workmen, who initially raised and industrial dispute under the
Industrial Disputes Act, and who did not pursue it till its logical end when
chose to move the authority under the then Madras Shops and Commercial
Establishment Act, the Hon'ble Supreme Court held that in the absence of any
prohibition under either of the enactments, such a course adopted by the
workmen cannot be faulted. Therefore, applying the said ratio to the case on
hand, it can be safely held that the concerned workmen here were placed in a
better footing when they chose to straightaway move the Inspector of Labour
under the Act, inasmuch as according to the workmen, having regard to the
facts prevailing as on date, they were entitled for the conferment of
permanent status as provided under the Act. If such a claim of the workmen
was not factually maintainable, it was for the Board to have resisted the
said claim with all available materials and could have convinced the
Inspector of Labour as the claim ought not to have been countenanced. The
Board having miserably failed to perform its duties in the manner expected of
it, it cannot be now allowed to contend or complain against the powers
exercised by the Inspector of Labour, which was within the provisions of the
Act. In this context, if the judgment of the Division Bench of this Court in
Metal Powder Company Limited case [1985 [2] LLN 738] [vide supra] is applied,
then also it can be safely held that the Inspector of Labour, was well within
his jurisdiction in holding the proceedings in the manner it was held and in
passing the order by directing the petitioner / Board to confer permanent
status on the workmen.....?
11 The Learned Judge directed TNEB to pass appropriate
proceedings complying with the directions of the Inspector of Labour,
ordering conferment of permanent status.
12 In the judgment reported in 2009 [4] MLJ 472 [DB] [cited
supra], a Memorandum of Settlement dated 10.08.2007, came into being between
TNEB and the Trade Unions under section 18[1] of the Industrial Disputes Act,
1947 and the validity of TNEB Proceedings bearing Nos.36 and 37 of the
Administrative Branch dated 29.10.2005, prescribing modes of appointment of
Mazdoor through their absorption and enforcement of orders of Labour
Inspectors and the claims of the workers who seek for permanent status under
the provisions of the Conferment of Permanent Status Act, 1981, came up for
consideration. A Division Bench of this Court, in the above cited judgment,
has traced the history of the litigation in paragraphs No.3 to 10 and also
the plea raised as to the pendency of ID No.106/2000 on the file of the
Industrial Tribunal. It held as follows:-
?.........
22 The decision of the Supreme Court which was an immediate sequel
to Justice Khalid Commission ought to be understood as applicable only to
cases of contract labours as helpers, whose minimum qualifications had been
set forth in the Regulations but not generally to persons who had directly
employed by the Electricity board itself on temporary basis but who continued
in employment for more than 480 days, and who belonged to the class of
persons below the rank of helpers for whom alone the Regulations prescribed a
minimum educational qualification of National Trade Certificate
(NTC)/National Apprenticeship Certificate (NAC) courses. This situation has
been substantially considered in the decision of the learned single judge in
Superintending Engineer, Vellore Electricity Board Distribution Circle,
Vellore v. Inspector of Labour reported in 2004 3 LLN 598. This decision
itself is the subject of challenge before us but the board has, by entering
in to the settlement which is in challenge, has literally made the appeals
infructuous by giving in to the claims of the workmen and endorsing the
correctness of the judgment. The actual status of several of the workmen had
been dealt with in the judgment of the learned Judge in paragraphs 33 and 34
that adverted to the factual findings rendered by the Labour Inspector that
all those workmen so called as contract labourers were actually appointed
directly by the board and therefore, the applicability of the Tamil Nadu
Industrial Establishments (Conferment and Permanent Status of Workmen) Act
were clearly attracted. The Supreme Court has also held that creation of new
posts, even if such exercise reduces chances of promotion to the existing
cadre, could not be objected Bakshish Singh v. Union of India reported in
MANU/SC/0331/1985 : AIR1985SC1272 . Instances when additional cadres have
been created, when Courts have expressed themselves in favour of such
exercises have been in, Shujatali v. Union of India reported in
MANU/SC/0371/1974 : (1976)IILLJ115SC ; Dharampal v. FCI 2000 (IV LLJ)
Supplement 355; APSRTC Employees Union v. APSRTC 1995 2 SLT 761.
23 If this was only a case of adjudication of whether the status of
workmen was as directly employed by the Electricity Board or they were
employed only as contract labourers, we would have directed that the
objection should be considered and an adjudication made in the industrial
dispute raised under Section 33(2)(b) of the Industrial Dispute Act. The
argument advanced by Shri.Hariparanthaman is that the fate of more than
21,000 workmen was being adjudicated before the Labour Court in I.D. No. 106
of 2003 and that would be the appropriate forum of adjudication. He urged
that the petitioner in W.P. No. 27714 of 2007 and connected writ petitions
ought to have been directed only to challenge the agreement before the
Industrial Tribunal and not by means of writ petition. We have already seen
that remedy by writ petition itself is not barred and if the board as an
employer has conceded to their status as workmen to whom the provisions of
the T.N. Industrial Establishments (Conferment of Permanent Status Act) could
be applicable, there is no warrant for directing the parties to seek
adjudication before the Industrial Tribunal. We cannot hold that the
agreement itself is tainted with any fraud or mala fides. As Shri. P.S.
Raman, the learned Additional Advocate General appearing for the Electricity
Board says that it is simply a case of the board not allowing itself not to
be tied up in knots over a period of time in having adhoc policies of
recruitment and feels upstaged when a problem of gigantic proportion has
arisen where claims to thousands of men and women were required to be
addressed. A public body employing several thousands of persons could not be
blind to realities and engage them in long litigations and if it is found
that pragmatism dictated that there ought to be a finality to litigations and
when it had already a judicial decision of a Single Judge directing permanent
status to workmen under the Act, the pro-active poser to conclude all
litigations by an agreement could not be challenged either as fraudulent or
as illegal. Revival of cadre or increase of cadre strength and specifying
lesser qualifications commensurate with the nature of work through Board
Proceedings could not be faulted, so long as the Regulations provided for
creation of such cadre.
24 Under the circumstances, we are convinced that the settlement
entered in to by the board with workmen and union is valid and enforceable.
We, however, qualify the same that it shall be subordinated only to the
extent that the claims of ITI trained workmen that the Regulation demands for
the post of 'helpers' are not discarded.
25 We therefore, direct that persons who ought to have been taken in
employment against vacancies that were directed to be filled by the Supreme
Court pursuant to Khalid Commission's report shall first be filled up before
other vacancies are undertaken to be filled up. The writ petitions
challenging the 18 (1) settlement will stand dismissed, except to the extent
mentioned in paras 23 and 24 above. Age relaxation, wherever necessary to
accommodate them shall be given. Similarly, the writ petitions challenging
the board proceedings 36 and 37 of the Administrative Branch dated 29.10.2005
will also stand dismissed. The claims of persons before the Labour Inspectors
which have been allowed and who have come before this Court seeking for issue
a mandamus for enforcement will now be considered under the 18 (1)
settlement. The writ petitions filed by the Electricity Board challenging the
orders of the Labour Inspectors will now be dismissed as infructuous having
regard to the 18 (1) settlement. The appeals filed by the board against the
decision of the learned single will also stand dismissed. The claims of the
workmen in W.P. No. 1033 of 2006 and the connected batch will not stand
affected by the decision of this Court and the Labour Court will decide on
their claims in I.D. No. 106 of 2003 in the light of what we have observed,
in so far as they are relevant and independently of the same on factual
issues whether they have been directly employed by the Electricity Board or
not. The Writ Petitions and Writ Appeals are disposed of accordingly. No
costs."
13 Tvl.Ashok and 19 others had filed WP (MD) No.5822/2012
[reported in 2013-II-LLJ-562 [Mad]] against the appellants herein, praying
for issuance of a writ of mandamus, to regularise their services in pursuance
of the orders passed by the 1st respondent herein and the said writ petition
came to be dismissed and aggrieved by the same, they filed WA (MD)
No.774/2012 and the said writ appeal came to be allowed on 01.12.2013. A
perusal of the said judgment would disclose among other things that the very
same grounds urged by the appellants herein and the submissions put forth by
the learned counsel for the appellants, were considered and the Division
Bench has taken note of the provisions and various judgments and in paragraph
No.25, held that ?the Inspectors appointed under the Act are not a paper-
tigers. They have the duty and authority to pass orders enabling the
eligible workers to have permanent status in the industrial establishment.?
In paragraph 33, it has been held that the workers need not go to the Labour
Court alone by raising an Industrial Dispute and they can seek relief under
the Tamil Nadu Act 46 of 1981 [Conferment of Permanent Status Act]. The
Division Bench has also taken note of the Metal Powder's case [cited supra]
and rendered the following factual findings:-
?.....
47 In the case before us, the workers have presented their petition,
furnished details of their employment, they have also produced the documents
issued by the officers of the Board evidencing their employment with the
Board and the nature of jobs done by them. The Board has taken a consistent
view that they were not employed by it and they were employed under an
independent contrator and that there was no employer-employee relationship as
between them and the Board. But, the Board did not produce any material to
show that they were so employed under an independent contractor. Not even
details of such contractor has been furnished. No material or document to
contradict the documents produced by the appellants, which have been issued
by the Board's Officials itself has been produced by the Board.
........
49 Considering the materials produced, the Inspector of Labour,
Karur, came to the conclusion that the appellants are not contract labourers,
but casual labourers of the Board. Further, the Inspector recorded a finding
that these appellants have completed 480 days within a period of 24 Calendar
months and also furnished their details in a tabular form appended to his
order dated 15.02.2010. Thus, the findings of the Inspector of Labour, is
not perverse and it is backed by evidence.?
14 Thus, citing the above reasons, the writ appeal was allowed
on 01.12.2013 and the very same appellants herein, made a challenge to the
said judgment, by filing SLP.CC.No.7953/2015 and vide order dated 30.04.2015,
the Hon'ble Supreme Court of India, passed the following Order:-
?Taken on Board.
Heard Mr.L.Nageshwara Rao, learned Senior Counsel appearing for the
petitioner.
The Special Leave Petition is dismissed on the ground of limitation and
merit. However, it will not be treated as a precedent in future.
Mr.Rao, learned Senior Counsel, very fairly submits that some time may
be allowed for implementation of the impugned orders passed by the High
Court.
The petitioner is granted two weeks time to implement the impugned
orders passed by the High Court. Till then, no coercive steps shall be taken
against the petitioner.?
15 The Hon'ble Apex Court, while dismissing the Special Leave
Petition, had also taken note of the plea made on behalf of the appellants
herein, praying for time to implement the orders.
16 In the judgment reported in 2015 [4] LLJ 736 [Mad]
[P.Kothandam's case cited supra], in which one of us was a party
[M.SATHYANARAYANAN, J], review applications were filed challenging the
judgment rendered by the Division Bench in WA.Nos.1340 and 1341 of 2012 dated
10.07.2012 and WA.Nos.1342 to 1363/2012 dated 11.07.2012 and the said writ
appeals were dismissed, so also, the review applications and Special Leave
Petitions were preferred before the Hon'ble Supreme Court of India in Special
Leave to Appeal [Civil] Nos.24740 to 24741/2012 and while dismissing the
same, the Hon'ble Supreme Court of India, observed that the dismissal of the
Special Leave Petitions will not preclude the applicant, viz., the
Superintending Engineer, TANGEDCO, Cuddalore, to apply to the High Court, for
review concerning the matter where it has been alleged that the Awards passed
by the Inspectors of Labour, Cuddalore, Villupuram, Madurai, Erode,
Nagapattinam, Theni Division and Salem, are forged. The Division Bench,
while dealing with the issue, had taken note of number of judgments including
the judgment reported in 2009 [4] MLJ 472 [Mad] [cited supra] and also
summoned the records and found that the plea made by the applicant therein as
to the fabrication of the records, was not all substantiated and therefore,
dismissed the review applications on the ground that there was no error
apparent on the face of the record and the plea of fraud and fabrication was
also not substantiated.
17 In the light of the above cited judgments, this Court is of
the considered opinion, that the legal plea raised by the learned counsel for
the appellants herein, as to the implementation of the order passed by the
1st respondent ? Inspector of Labour, Karur, is not at all sustainable and
deserves objection. It is also the submission of the learned counsel for the
appellants that the Certificates relied on by the private respondents herein,
though issued by the concerned Assistant Engineers of TNEB, cannot be relied
upon for the reason that they are not authorised or competent to issue those
certificates.
18 It is very pertinent to point out at this juncture that the
orders conferring permanent status was passed by the 1st respondent herein on
29.01.2010 and for implementation of the same, the private respondents filed
WP (MD) No.14674/2012 and subsequently, WP (MD) No.2653/2013 was filed by the
appellants herein, challenging the legality of the said order. The very same
plea put forth by the Superintending Engineer, Vellore Electricity
Distribution Circle, Vellore, was considered in the judgment reported in 2004
[3] LLN 598 [cited supra] and the said submission was rejected and this Court
has also gone through the order passed by the 1st respondent which was the
subject matter of challenge in WP (MD) No.2653/2013 [WA (MD) No.339/2015].
19 The said order runs to 84 pages and the 1st respondent had
analysed the Certificates / documents produced on behalf of the private
respondents and reached the factual finding, stating that the private
respondents deserves permanent status and accordingly, passed the order. It
is a well settled position of law that this Court, in exercise of the
jurisdiction under Article 226 of the Constitution of India, cannot re-
appreciate the factual findings rendered by the competent authority unless it
is shown that the said findings are perverse or based upon 'no evidence'.
This Court, testing the common order passed by the 1st respondent, is of the
considered view that the said official has exercised his statutory power well
within the ambit of law and also carefully analysed the documents and other
materials placed and rightly reached the conclusion and thereby ordered
conferment of permanent status on the private respondents. Furthermore,
since the legal plea raised herein has been settled in the earlier round of
litigations, it is not open to the appellants herein to urge the very same
point in future litigations and even otherwise, there is no infirmity or
perversity attached to the findings rendered by the 1st respondent and
therefore, the said order does not warrant interference.
20 It is to be pointed out at this juncture that a Division
Bench of this Court, while disposing of WA.No.1302/2013 etc., batch reported
in 2009 [4] MLJ 472 [DB] [cited supra], in paragraph 23, observed that ?a
public body employing several thousands of persons, could not be blind to
realities and engage them in long litigations and if it is found that
pragmatism dictated that there ought to be a finality to litigations and when
it had already a judicial decision of a single Judge directing permanent
status to workmen under the Act, the pro-active poser to conclude all
litigations by an agreement [under section 18[1] of the Industrial Disputes
Act, 1947] could not be challenged either as fraudulent or as illegal.?
21 Thus, the appellants herein exhibited pragmatism in the
form of Settlement u/s.18[1] of the Industrial Disputes Act, 1947, though
they were not under obligation to do so. Hence, they can accommodate the
private respondents herein in compliance of the order passed by the 1st
respondent ? Inspector of Labour, Karur.
22 This Court, on a careful scrutiny and analysis of the
entire materials placed before it, is of the view that there is no error
apparent on the face of the record or infirmity in the orders passed in WP
(MD) Nos.2653/2013 and 14674/2012 and finds no merit in these writ appeals.
23 In the result, the writ appeals are dismissed, confirming
the order dated 25.08.2014 made in WP (MD) Nos.2653/2013 and 14674/2012.
Consequently, the interim order granted in MP (MD) Nos.2 & 2 of 2015 is
vacated and the miscellaneous petitions are closed. No costs.
To
1.The Chairman
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
2.The Chief Engineer [Personnel]
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
3.The Superintending Engineer
TANGEDCO, Karur Electricity
Distribution Circle, Karur.
4.The Inspector of Labour
Karur..
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.11.2016
Reserved on : 11.11.2016
Delivered on : 24.11.2016
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
WA.(MD). Nos.339 of 2015 and 340/2015 & MP (MD) Nos.2 & 2/2015 & CMP (MD)
No.10630/2016 in WA.(MD) No.339/2015
1.The Chairman
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
2.The Chief Engineer [Personnel]
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
3.The Superintending Engineer
TANGEDCO, Karur Electricity
Distribution Circle, Karur. ..
Appellants in both the
writ appeals
Versus
1.The Inspector of Labour
Karur.
2.B.Kumareshan
3.M.Mathivanan
4.M.Kannan
5.G.Sampathkumar
6.M.Angamuthu
7.K.Sivakumar
8.P.Rengaraj
9.S.Narendiran
10.P.Senthil
11.D.Subburaju
12.K.Thiurmoorthy
13.M.Muruganandam
14.P.Ramachandran
15.M.Marudamuthu
16.L.Murugan
17.V.Rajan
18.K.Ramasamy
19.R.Siva
20.R.Vijayakumar
21.K.Palanisasmy
22.P.Bharathi
23.M.Rajendran
24.P.Shanmugam
25.S.Kandasamy
26.M.Shanmugam
27.R.Veeramani
28.T.Karuppasamy
29.M.Natarajan
30.M.Rengasamy
31.K.Veeramani
32.M.Perumal
33.S.Bakkiyaraj
34.K.Sivasankar
35.E.Rengan
36.G.Kannadasan
37.V.Annadurai
38.M.Arichandran
39.V.Namperumal .. Respondents in WA
(MD) No.339/2015
1.P.Shanmugam
2.T.Subburaj
3.K.Ramasamy
4.R.Siva
5.K.Palanisamy
6.K.Veeramani
7.L.Murugan
8.M.Maruthamuthu
9.E.Rengan
10.M.Arichandran
11.P.Bharathi
12.V.Namperumal
13.K.Sivakumar
14.R.Vijayakumar
15.M.Angamuthu
16.P.Ramachandran
17.P.Senthil .. Respondents
in WA (MD) No.340/2015
Prayer: Writ Appeals filed under Clause 15 of the Letters Patent Act
against the order of the Learned Single Judge in WP (MD) Nos.2653/2013 and
14674/2012 dated 25.08.2014.
!For Appellants in both
the Writ Appeals : Mrs.S.Srimathy for
Mr.S.M.S.Johnny Basha
^For RR 2,3,5,9,23 & 28
in WA (MD) No.339/2015 : Mr.C.K.Chandrasekkar for
Mr.A.Rahul
For R24 in WA (MD)
No.339/2015 : Mr.S.Gokulraj
For RR 6 to 8, 10, 12 to
19, 21, 22, 25 to 27, 29
31 to 39 in WA (MD)
No.339/2015 : Mr.G.Sankaran
For RR4, 11, 20, 30 in
WA (MD) No.339/2015 : No appearance
For RR 1 to evidence, 5 to 13
15 & 16 in WA (MD) No.
340/2015 : Mr.G.Sankaran
For R4 in WA (MD) No.
340/2015 : No appearance
:COMMON JUDGMENT
M.SATHYANARAYANAN, J.,
These writ appeals are preferred by the Tamil Nadu Electricity Board
[in short ?TNEB?], now the Tamil Nadu Generation and Distribution Corporation
Limited [in short ?TANGEDCO?], aggrieved by the orders conferring Permanent
Status by the 1st respondent / the Inspector of Labour, Karur, on the private
respondents under the provisions of the Tamil Nadu Industrial Establishments
[Conferment of Permanent Status to Workmen] Act, 1981 [in short ?Conferment
of Permanent Status to Workmen Act].
2 The facts leading to the filing of these writ appeals,
briefly narrated, are as follows:-
WA (MD) No.339/2015:- [against WP (MD) No.2653/2013]
The appellants / the Tamil Nadu Electricity Board [TNEB] had filed the
above said writ petition challenging the common order passed by the 1st
respondent ? Inspector of Labour, Karur under the provisions of the above
said Act, ordering conferment of permanent status on the private respondents.
{B} In the affidavit filed in support of the said writ
petition, the Superintending Engineer, Karur Electricity Distribution Circle,
Karur, would aver among other things that the private respondents have not
worked directly under TNEB and that there is no relationship of employer and
employee between them and in any event, the 1st respondent herein has no
authority under the provisions of the said Act, to adjudicate their claim
conferring permanent status on the private respondents and further that, the
claim of the private respondents / workmen that they have worked continuously
for a period of more than 480 days in 24 Calendar months, is also under
serious dispute and their claim in that regard, is not factually correct and
their services were engaged for execution of certain works through
contractors only and the wages were paid by the said contractors to the
workmen and not by TNEB. Insofar as the Service Certificates said to have
been issued by the concerned Assistant Engineers of TNEB, the private
respondents / workmen, it is contended that the said documents cannot be
relied upon as the officials were not competent or authorised to issue the
same and as such, cannot be taken as valid certificates.
WA (MD) No.340/2015 :- [against WP (MD) No.14674/2012]
The private respondents in this writ appeal filed the said writ
petition praying for issuance of a writ of mandamus directing the appellants
herein who were arrayed as the respondents in the said writ petition, to
implement the order of the 1st respondent, viz., the Inspector of Labour,
Karur, dated 29.01.2010, passed in CP.No.809/2008 etc., batch, and to
regularise their employoment / confer permanent status on them.
{B} In the affidavit filed in support of the writ petition, the
petitioners therein / private respondents herein, would state among other
things that they were appointed as temporary employees in various positions
under the 3rd appellant herein and after working in that capacity for more
than the statutory period, they were optimistic that their services will be
regularised and however, it was not done so and therefore, they were
constrained to approach the 1st respondent herein by invoking the provisions
of the Conferment of Permanent Status Act and the said official, after
conducting enquiry, has passed a common order dated 29.01.2010, directing the
appellants herein to confer the permanent status and despite very many
representations, the said order has not been implemented and hence, they came
forward to file the said writ petition.
{C} One K.Sivasankar, had also filed a contempt petition in
Cont.P.(MD) No.1218/2013, alleging wilful disobedience of the order dated
26.04.2013 made in WP (MD) No.7114/2013, to punish the Superintending
Engineer, Karur Electricity Distribution Circle, TNEB, Karur.
3 A learned Single Judge of this Court, has taken up the said
two writ petitions, viz., WP (MD) Nos.2653/2013 and 14674/2012, as well as
the contempt petition, viz., Cont.P.(MD) No.1218/2013, together for final
disposal and taken note of the judgment dated 01.12.2013 made in WA (MD)
No.774/2012 [R.Ashok and 19 others Vs The Chairman, Tamil Nadu Generation and
Distribution Corporation Limited [TANGEDCO]-formerly TNEB, Chennai, The Chief
Engineer [Recruitment], TANGEDCO, Chennai-2, and the Superintending Engineer,
Karur Electricity Distribution Circle, TANGEDCO-formerly TNEB, Karur],
wherein, the implementation of the order passed by the 1st respondent herein,
came up for consideration and a positive order came to be passed, allowing
the writ petitions with a further direction, directing the very same
appellants herein to confer the permanent status on the private respondents
therein and also taken note of the dismissal of WP (MD) No.3937/2013 and also
closed the contempt petition.
4 The official respondents therein, aggrieved by the order,
allowing both the writ petitions, had filed these writ appeals. This Court,
while entertaining the writ appeals, had granted an order of interim stay and
to vacate the same, CMP (MD) No.10630/2016 was filed.
5 Mrs.S.Srimathy, learned counsel appearing for the
appellants / respondents in the above said writ petitions, would vehemently
contend that the Certificates/documents produced by the private respondents /
workmen / contract labourers, cannot be taken as a conclusive proof as most
of the documents were issued by the concerned Assistant Engineers of TNEB and
they were not authorised / competent to issue such certificates and in the
light of the fact that none of the private respondents have been engaged
directly by TNEB ; but were engaged by the contractors for the purpose of
doing digging, laying cables etc., and that the wages were also distributed
by them only, their services cannot be regularised, under the garb of the
orders passed by the 1st respondent herein, in terms of the provisions of the
Conferment of Permanent Status to Workmen Act. It is the further submissions
of the learned counsel for the appellants that the scope of exercise of
powers by the 1st respondent under the provisions of the above said Act, is
very limited and small in nature. Admittedly, ID.No.106/2000 filed by some
of the persons, who were similarly placed, was pending adjudication before
the Industrial Tribunal and as such, the 1st respondent ought not to have
entertained the petitions at all. It is the further submission of the
learned counsel for the appellants that fraud has been practiced by the
private respondents by producing bogus Certificates and in all fairness, the
1st respondent ought to have gone into the legality and tenability of those
documents and given a finding and by a cryptic common order, has directed the
appellants herein to confer the permanent status and it may lead to grave and
catastrophic consequences and prays for interference.
6 Per contra, Mr.C.K.Chandrasekkar, Mr.A.Rahul, Mr.S.Gokulraj
and Mr.G.Sankaran, the respective learned counsel for the private respondents
would submit that the points urged by the learned counsel for the appellants
were raised in the earlier round of litigations, considered and were rejected
and positive orders have been passed, directing the appellants herein to
confer permanent status on the private respondents and the 3rd appellant
herein is also estopped from doing so, in the light of the judgment dated
01.12.2013 made in WA.(MD) No.774/2012 [cited supra], which was also
confirmed by the Hon'ble Supreme Court in SLP [CC] No.7953/2015 vide order
dated 30.04.2015 and as such, it is not open to the 3rd appellant herein to
raise the very same issue every time whenever the litigation is filed and
such a kind of attitude / act deserves to be condemned. It is further
contended that the appellants/TNEB [now TANGEDCO], being a statutory
Organization, is bound to comply with the orders passed by a competent
statutory authority and however, for the reasons best known to them, are not
doing so and also drawn the attention of this Court to the judgment reported
in 2004 [3] LLN 598 [The Superintending Engineer, Vellore Electricity
Distribution Circle Vs. The Inspector of Labour and others] and the yet
another judgment reported in 2009 [4] MLJ 472 [The Superintending Engineer,
Nagapattinam Electricity Distribution Circle Vs. the Inspector of Labour and
others] and would contend that very same points were also urged, especially
by the first appellant herein and were rejected and prays for dismissal of
these writ appeals with exemplary costs. The respective learned counsel
appearing for the private respondents, apart from relying upon the above
cited two judgments, also placed reliance upon the judgments reported in 1997
[2] SCC 806 [State of U.P. Vs. Nawab Hussain] and 2015 [4] LLJ 736 Mad [DB]
[The Superintending Engineer, Tamil Nadu Generation and Distribution
Corporation Ltd., Cuddalore Vs. P.Kothandam and another].
7 This Court paid it's anxious consideration and best
attention to the rival submissions and also perused the typed set of
documents as well as the decisions relied on by the respective learned
counsel for the private respondents.
8 The following questions arise for consideration in these
writ appeals:-
[a] Whether the appellants / TNEB [now TANGEDCO], in the light
of the judgments reported in 2004 [3] LLN 598 and 2009 [4] MLJ 472 [DB], are
bound to implement the orders passed by the 1st respondent herein and
thereby, confer the permanent status on the private respondents? and
[b] Whether the grounds urged by the appellants herein are hit
by the principle of res judicata?.
9 The facts leading to the engagement of the workmen in large
numbers through contractors and also directly by the appellants, have been
narrated in the above cited two judgments and therefore, it is unnecessary to
re-state the entire facts once again.
10 In the judgment reported in 2004 [3] LLN 598, the learned
Single Judge [The Hon'ble Mr. Justice F.M.Ibrahim Kalifulla ? as the Hon'ble
Judge then was], has traced out the history, especially, with regard to the
challenge made by the Tamil Nadu Electricity Board as to the orders passed by
the respective Inspectors of Labour under the provisions of the Conferment of
Permanent Status to the Workmen Act, 1981 and also the writ petitions filed
by the concerned workmen, through their Union and directed TNEB and its
officials to implement the order passed by the respective Inspectors of
Labour, ordering conferment of permanent status and to grant consequential
benefits. It was also contended on behalf of TNEB that the concerned
Inspectors of Labour have passed the orders, conferring permanent status on
total misunderstanding of the powers vested with them and were in breach of
procedure prescribed under the said Act and by ordering conferment of
permanent status, they have also arrogated powers that are only available
with the Adjudicated Forums constituted under the provisions of the
Industrial Disputes Act, 1947. The learned Judge, while adjudicating the
grounds raised by TNEB, had taken note of the judgment in Metal Powder
Company Limited, Madras and another Vs. the State of Tamil Nadu and another
reported in 1985 [2] LLN 738, wherein the validity of the Conferment of
Permanent Status Act, came to be upheld and the judgment rendered by the
Hon'ble Supreme Court of India, in State of Tamil Nadu Vs. Nellai Cotton
Mills reported in 1990 [1] LLN 685, which confirmed the order, upholding the
vires of the said Act and also taken note of the fact that challenge was made
by the State only in respect of Explanation to Section 3 of the said Act on
the ground that it was incapable of enforcement. It is relevant to extract
the following paragraphs:-
?.......
32 While so, on behalf of the Board, it was contended that there was
no agreement with the concerned workmen for doing the jobs like erection of
poles, stringing of lines and handling of materials in the stores. According
to the petitioner / Board, such works were executed on contract basis under
certain guidelines and that concerned contractors used to engage the
requisite labour and pay the wages to the persons employed by him. The
petitioner / Board therefore contended that there was no direct employer and
employee relationship between the Board and the concerned workmen. It was
the definite case of the Board that no attendance register was maintained and
therefore, the claim of the workmen that they have worked more than 240 days
in a year was not true. As far as the certificates issued to the concerned
workmen by the junior/assistant engineers, it was contended that such
officers were not empowered to issue such certificates. It was contended
that since none of the concerned workmen in these writ petitions were govrned
by the report of Hon'ble Justice Sri Khalid, who came to be appointed by the
order of the Hon'ble Supreme Court they were not entitled for any relief. It
is necessary to be stated that no oral evidence was let in on the side of the
Board and there was also no cross-examination of the deposition of the
concerned workmen before the Inspector of Labour. In the above stated
situation, the question for consideration is as to whether the conclusion of
the Inspector of Labour that the concerned workmen had put in more than 480
days in 24 calendar months was correct and consequently they are entitled for
the conferment of permanent status as has been granted.
33 While considering the said question, it will have to be stated
that while on the one hand, the evidence placed before the Inspector of
Labour on the side of the concerned workmen remained, the same was also not
controverted, no iota of evidence was placed on the side of the Board as to
either about the nature of the employment or about the details of their
employment. The Board was rest content with the various contentions raised
by it in its counter. But, 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 ipse 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 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. The claim of the concerned workmen
was that under the guise of contract labourers, they were asked to perform
various jobs, which were required to be performed by the regular employees of
the Board.
......
35 Therefore, I am unable to accept the submission made on behalf of
the Board that the exercise of the power by the Inspector of Labour in
conferring permanent status after holding necessary enquiries contemplated
under section 5 read along with rule 6[4] should be construed as arrogating
to himself the powers available to the other adjudicatory forums created
under the provisions of the Industrial Disputes Act, 1947. It will have to
be stated that 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 Industrial Disputes 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 trespassing into the adjudication
process contemplated under the provisions of the Industrial Disputes act. In
this context, if the judgment of the Supreme Court in Nirchiliya case [1990
[2] LLN 3] [vide supra] is applied, it can be safely held that where there is
no prohibition under the provisions of either the Industrial Disputes Act or
the Act, exercise of the power in the manner in which it can be done by the
Inspector of Labour under the Act cannot be found fault with. It will have
to be stated that such an exercise would be well within the statutory
limitations provided under the Act. In fact, in the above-referred to
judgment of the Hon'ble Supreme Court, the question for consideration was
whether the workmen, who initially raised and industrial dispute under the
Industrial Disputes Act, and who did not pursue it till its logical end when
chose to move the authority under the then Madras Shops and Commercial
Establishment Act, the Hon'ble Supreme Court held that in the absence of any
prohibition under either of the enactments, such a course adopted by the
workmen cannot be faulted. Therefore, applying the said ratio to the case on
hand, it can be safely held that the concerned workmen here were placed in a
better footing when they chose to straightaway move the Inspector of Labour
under the Act, inasmuch as according to the workmen, having regard to the
facts prevailing as on date, they were entitled for the conferment of
permanent status as provided under the Act. If such a claim of the workmen
was not factually maintainable, it was for the Board to have resisted the
said claim with all available materials and could have convinced the
Inspector of Labour as the claim ought not to have been countenanced. The
Board having miserably failed to perform its duties in the manner expected of
it, it cannot be now allowed to contend or complain against the powers
exercised by the Inspector of Labour, which was within the provisions of the
Act. In this context, if the judgment of the Division Bench of this Court in
Metal Powder Company Limited case [1985 [2] LLN 738] [vide supra] is applied,
then also it can be safely held that the Inspector of Labour, was well within
his jurisdiction in holding the proceedings in the manner it was held and in
passing the order by directing the petitioner / Board to confer permanent
status on the workmen.....?
11 The Learned Judge directed TNEB to pass appropriate
proceedings complying with the directions of the Inspector of Labour,
ordering conferment of permanent status.
12 In the judgment reported in 2009 [4] MLJ 472 [DB] [cited
supra], a Memorandum of Settlement dated 10.08.2007, came into being between
TNEB and the Trade Unions under section 18[1] of the Industrial Disputes Act,
1947 and the validity of TNEB Proceedings bearing Nos.36 and 37 of the
Administrative Branch dated 29.10.2005, prescribing modes of appointment of
Mazdoor through their absorption and enforcement of orders of Labour
Inspectors and the claims of the workers who seek for permanent status under
the provisions of the Conferment of Permanent Status Act, 1981, came up for
consideration. A Division Bench of this Court, in the above cited judgment,
has traced the history of the litigation in paragraphs No.3 to 10 and also
the plea raised as to the pendency of ID No.106/2000 on the file of the
Industrial Tribunal. It held as follows:-
?.........
22 The decision of the Supreme Court which was an immediate sequel
to Justice Khalid Commission ought to be understood as applicable only to
cases of contract labours as helpers, whose minimum qualifications had been
set forth in the Regulations but not generally to persons who had directly
employed by the Electricity board itself on temporary basis but who continued
in employment for more than 480 days, and who belonged to the class of
persons below the rank of helpers for whom alone the Regulations prescribed a
minimum educational qualification of National Trade Certificate
(NTC)/National Apprenticeship Certificate (NAC) courses. This situation has
been substantially considered in the decision of the learned single judge in
Superintending Engineer, Vellore Electricity Board Distribution Circle,
Vellore v. Inspector of Labour reported in 2004 3 LLN 598. This decision
itself is the subject of challenge before us but the board has, by entering
in to the settlement which is in challenge, has literally made the appeals
infructuous by giving in to the claims of the workmen and endorsing the
correctness of the judgment. The actual status of several of the workmen had
been dealt with in the judgment of the learned Judge in paragraphs 33 and 34
that adverted to the factual findings rendered by the Labour Inspector that
all those workmen so called as contract labourers were actually appointed
directly by the board and therefore, the applicability of the Tamil Nadu
Industrial Establishments (Conferment and Permanent Status of Workmen) Act
were clearly attracted. The Supreme Court has also held that creation of new
posts, even if such exercise reduces chances of promotion to the existing
cadre, could not be objected Bakshish Singh v. Union of India reported in
MANU/SC/0331/1985 : AIR1985SC1272 . Instances when additional cadres have
been created, when Courts have expressed themselves in favour of such
exercises have been in, Shujatali v. Union of India reported in
MANU/SC/0371/1974 : (1976)IILLJ115SC ; Dharampal v. FCI 2000 (IV LLJ)
Supplement 355; APSRTC Employees Union v. APSRTC 1995 2 SLT 761.
23 If this was only a case of adjudication of whether the status of
workmen was as directly employed by the Electricity Board or they were
employed only as contract labourers, we would have directed that the
objection should be considered and an adjudication made in the industrial
dispute raised under Section 33(2)(b) of the Industrial Dispute Act. The
argument advanced by Shri.Hariparanthaman is that the fate of more than
21,000 workmen was being adjudicated before the Labour Court in I.D. No. 106
of 2003 and that would be the appropriate forum of adjudication. He urged
that the petitioner in W.P. No. 27714 of 2007 and connected writ petitions
ought to have been directed only to challenge the agreement before the
Industrial Tribunal and not by means of writ petition. We have already seen
that remedy by writ petition itself is not barred and if the board as an
employer has conceded to their status as workmen to whom the provisions of
the T.N. Industrial Establishments (Conferment of Permanent Status Act) could
be applicable, there is no warrant for directing the parties to seek
adjudication before the Industrial Tribunal. We cannot hold that the
agreement itself is tainted with any fraud or mala fides. As Shri. P.S.
Raman, the learned Additional Advocate General appearing for the Electricity
Board says that it is simply a case of the board not allowing itself not to
be tied up in knots over a period of time in having adhoc policies of
recruitment and feels upstaged when a problem of gigantic proportion has
arisen where claims to thousands of men and women were required to be
addressed. A public body employing several thousands of persons could not be
blind to realities and engage them in long litigations and if it is found
that pragmatism dictated that there ought to be a finality to litigations and
when it had already a judicial decision of a Single Judge directing permanent
status to workmen under the Act, the pro-active poser to conclude all
litigations by an agreement could not be challenged either as fraudulent or
as illegal. Revival of cadre or increase of cadre strength and specifying
lesser qualifications commensurate with the nature of work through Board
Proceedings could not be faulted, so long as the Regulations provided for
creation of such cadre.
24 Under the circumstances, we are convinced that the settlement
entered in to by the board with workmen and union is valid and enforceable.
We, however, qualify the same that it shall be subordinated only to the
extent that the claims of ITI trained workmen that the Regulation demands for
the post of 'helpers' are not discarded.
25 We therefore, direct that persons who ought to have been taken in
employment against vacancies that were directed to be filled by the Supreme
Court pursuant to Khalid Commission's report shall first be filled up before
other vacancies are undertaken to be filled up. The writ petitions
challenging the 18 (1) settlement will stand dismissed, except to the extent
mentioned in paras 23 and 24 above. Age relaxation, wherever necessary to
accommodate them shall be given. Similarly, the writ petitions challenging
the board proceedings 36 and 37 of the Administrative Branch dated 29.10.2005
will also stand dismissed. The claims of persons before the Labour Inspectors
which have been allowed and who have come before this Court seeking for issue
a mandamus for enforcement will now be considered under the 18 (1)
settlement. The writ petitions filed by the Electricity Board challenging the
orders of the Labour Inspectors will now be dismissed as infructuous having
regard to the 18 (1) settlement. The appeals filed by the board against the
decision of the learned single will also stand dismissed. The claims of the
workmen in W.P. No. 1033 of 2006 and the connected batch will not stand
affected by the decision of this Court and the Labour Court will decide on
their claims in I.D. No. 106 of 2003 in the light of what we have observed,
in so far as they are relevant and independently of the same on factual
issues whether they have been directly employed by the Electricity Board or
not. The Writ Petitions and Writ Appeals are disposed of accordingly. No
costs."
13 Tvl.Ashok and 19 others had filed WP (MD) No.5822/2012
[reported in 2013-II-LLJ-562 [Mad]] against the appellants herein, praying
for issuance of a writ of mandamus, to regularise their services in pursuance
of the orders passed by the 1st respondent herein and the said writ petition
came to be dismissed and aggrieved by the same, they filed WA (MD)
No.774/2012 and the said writ appeal came to be allowed on 01.12.2013. A
perusal of the said judgment would disclose among other things that the very
same grounds urged by the appellants herein and the submissions put forth by
the learned counsel for the appellants, were considered and the Division
Bench has taken note of the provisions and various judgments and in paragraph
No.25, held that ?the Inspectors appointed under the Act are not a paper-
tigers. They have the duty and authority to pass orders enabling the
eligible workers to have permanent status in the industrial establishment.?
In paragraph 33, it has been held that the workers need not go to the Labour
Court alone by raising an Industrial Dispute and they can seek relief under
the Tamil Nadu Act 46 of 1981 [Conferment of Permanent Status Act]. The
Division Bench has also taken note of the Metal Powder's case [cited supra]
and rendered the following factual findings:-
?.....
47 In the case before us, the workers have presented their petition,
furnished details of their employment, they have also produced the documents
issued by the officers of the Board evidencing their employment with the
Board and the nature of jobs done by them. The Board has taken a consistent
view that they were not employed by it and they were employed under an
independent contrator and that there was no employer-employee relationship as
between them and the Board. But, the Board did not produce any material to
show that they were so employed under an independent contractor. Not even
details of such contractor has been furnished. No material or document to
contradict the documents produced by the appellants, which have been issued
by the Board's Officials itself has been produced by the Board.
........
49 Considering the materials produced, the Inspector of Labour,
Karur, came to the conclusion that the appellants are not contract labourers,
but casual labourers of the Board. Further, the Inspector recorded a finding
that these appellants have completed 480 days within a period of 24 Calendar
months and also furnished their details in a tabular form appended to his
order dated 15.02.2010. Thus, the findings of the Inspector of Labour, is
not perverse and it is backed by evidence.?
14 Thus, citing the above reasons, the writ appeal was allowed
on 01.12.2013 and the very same appellants herein, made a challenge to the
said judgment, by filing SLP.CC.No.7953/2015 and vide order dated 30.04.2015,
the Hon'ble Supreme Court of India, passed the following Order:-
?Taken on Board.
Heard Mr.L.Nageshwara Rao, learned Senior Counsel appearing for the
petitioner.
The Special Leave Petition is dismissed on the ground of limitation and
merit. However, it will not be treated as a precedent in future.
Mr.Rao, learned Senior Counsel, very fairly submits that some time may
be allowed for implementation of the impugned orders passed by the High
Court.
The petitioner is granted two weeks time to implement the impugned
orders passed by the High Court. Till then, no coercive steps shall be taken
against the petitioner.?
15 The Hon'ble Apex Court, while dismissing the Special Leave
Petition, had also taken note of the plea made on behalf of the appellants
herein, praying for time to implement the orders.
16 In the judgment reported in 2015 [4] LLJ 736 [Mad]
[P.Kothandam's case cited supra], in which one of us was a party
[M.SATHYANARAYANAN, J], review applications were filed challenging the
judgment rendered by the Division Bench in WA.Nos.1340 and 1341 of 2012 dated
10.07.2012 and WA.Nos.1342 to 1363/2012 dated 11.07.2012 and the said writ
appeals were dismissed, so also, the review applications and Special Leave
Petitions were preferred before the Hon'ble Supreme Court of India in Special
Leave to Appeal [Civil] Nos.24740 to 24741/2012 and while dismissing the
same, the Hon'ble Supreme Court of India, observed that the dismissal of the
Special Leave Petitions will not preclude the applicant, viz., the
Superintending Engineer, TANGEDCO, Cuddalore, to apply to the High Court, for
review concerning the matter where it has been alleged that the Awards passed
by the Inspectors of Labour, Cuddalore, Villupuram, Madurai, Erode,
Nagapattinam, Theni Division and Salem, are forged. The Division Bench,
while dealing with the issue, had taken note of number of judgments including
the judgment reported in 2009 [4] MLJ 472 [Mad] [cited supra] and also
summoned the records and found that the plea made by the applicant therein as
to the fabrication of the records, was not all substantiated and therefore,
dismissed the review applications on the ground that there was no error
apparent on the face of the record and the plea of fraud and fabrication was
also not substantiated.
17 In the light of the above cited judgments, this Court is of
the considered opinion, that the legal plea raised by the learned counsel for
the appellants herein, as to the implementation of the order passed by the
1st respondent ? Inspector of Labour, Karur, is not at all sustainable and
deserves objection. It is also the submission of the learned counsel for the
appellants that the Certificates relied on by the private respondents herein,
though issued by the concerned Assistant Engineers of TNEB, cannot be relied
upon for the reason that they are not authorised or competent to issue those
certificates.
18 It is very pertinent to point out at this juncture that the
orders conferring permanent status was passed by the 1st respondent herein on
29.01.2010 and for implementation of the same, the private respondents filed
WP (MD) No.14674/2012 and subsequently, WP (MD) No.2653/2013 was filed by the
appellants herein, challenging the legality of the said order. The very same
plea put forth by the Superintending Engineer, Vellore Electricity
Distribution Circle, Vellore, was considered in the judgment reported in 2004
[3] LLN 598 [cited supra] and the said submission was rejected and this Court
has also gone through the order passed by the 1st respondent which was the
subject matter of challenge in WP (MD) No.2653/2013 [WA (MD) No.339/2015].
19 The said order runs to 84 pages and the 1st respondent had
analysed the Certificates / documents produced on behalf of the private
respondents and reached the factual finding, stating that the private
respondents deserves permanent status and accordingly, passed the order. It
is a well settled position of law that this Court, in exercise of the
jurisdiction under Article 226 of the Constitution of India, cannot re-
appreciate the factual findings rendered by the competent authority unless it
is shown that the said findings are perverse or based upon 'no evidence'.
This Court, testing the common order passed by the 1st respondent, is of the
considered view that the said official has exercised his statutory power well
within the ambit of law and also carefully analysed the documents and other
materials placed and rightly reached the conclusion and thereby ordered
conferment of permanent status on the private respondents. Furthermore,
since the legal plea raised herein has been settled in the earlier round of
litigations, it is not open to the appellants herein to urge the very same
point in future litigations and even otherwise, there is no infirmity or
perversity attached to the findings rendered by the 1st respondent and
therefore, the said order does not warrant interference.
20 It is to be pointed out at this juncture that a Division
Bench of this Court, while disposing of WA.No.1302/2013 etc., batch reported
in 2009 [4] MLJ 472 [DB] [cited supra], in paragraph 23, observed that ?a
public body employing several thousands of persons, could not be blind to
realities and engage them in long litigations and if it is found that
pragmatism dictated that there ought to be a finality to litigations and when
it had already a judicial decision of a single Judge directing permanent
status to workmen under the Act, the pro-active poser to conclude all
litigations by an agreement [under section 18[1] of the Industrial Disputes
Act, 1947] could not be challenged either as fraudulent or as illegal.?
21 Thus, the appellants herein exhibited pragmatism in the
form of Settlement u/s.18[1] of the Industrial Disputes Act, 1947, though
they were not under obligation to do so. Hence, they can accommodate the
private respondents herein in compliance of the order passed by the 1st
respondent ? Inspector of Labour, Karur.
22 This Court, on a careful scrutiny and analysis of the
entire materials placed before it, is of the view that there is no error
apparent on the face of the record or infirmity in the orders passed in WP
(MD) Nos.2653/2013 and 14674/2012 and finds no merit in these writ appeals.
23 In the result, the writ appeals are dismissed, confirming
the order dated 25.08.2014 made in WP (MD) Nos.2653/2013 and 14674/2012.
Consequently, the interim order granted in MP (MD) Nos.2 & 2 of 2015 is
vacated and the miscellaneous petitions are closed. No costs.
To
1.The Chairman
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
2.The Chief Engineer [Personnel]
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2.
3.The Superintending Engineer
TANGEDCO, Karur Electricity
Distribution Circle, Karur.
4.The Inspector of Labour
Karur..
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