High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.10.2007CORAM THE HON'BLE MR.JUSTICE P.D. DINAKARAN W.P.Nos.5962 of 1997 and 32916 of 2003 & 35143 of 2003Thamizhaga Kootturavu Sanga Oozhiyar Sangamrep. by its General Secretary166, Vadakku Masi VeethiMadurai 600 001... Petitioner in WP No.5962/97 & 2nd respondent in WP Nos. 32916 & 35143/2003 Vs. Madurai District Cooperative Milk Producers Union Ltd.rep. by its General ManagerMadurai – 20... 1st respondent in W.P.No. 5962/97 & petitioner in W.P.Nos.32916 & 35143/2003Commissioner for Milk Production and Dairy DevelopmentMadras 600 051... 2nd respondent in WP.No.5962/97The Inspector of FactoriesSecond Circle, Madurai... 3rd respondent in W.P. No.5962/97 & 1st respondent in WP.Nos.32916 &35143/2003Petitions under Article 226 of the Constitution of India praying fora writ of Mandamus as stated therein.W.P.No.5962/1997For Petitioner : Ms.R.VaigaiFor 1st Respondent : Mr.R.BalasubramanianFor Respondents 2&3 : No appearanceWP.No. 32916/2003 & WP.No. 35143/2003For Petitioner : Mr. R. Balasubramanian For Respondent No. 2: M/s R. VaigaiFor Respondent No. 1 : No appearance https://hcservices.ecourts.gov.in/hcservices/ O R D E RFor the purpose of convenience, parties are referred to as per theirrank in Writ Petition No.5962 of 1997.2. While in Writ Petition No.5962 of 1997, 41 employees working underthe first respondent Management seek a writ of Mandamus directing thefirst and second respondents to treat the employees mentioned in theorders dated 26.7.1996, 30.9.1996 and 13.12.1996 issued by the thirdrespondent as permanent with all consequential benefits including arrearsof salary and other allowance, in Writ Petition Nos.32916 and 35143 of2003, the first respondent Management seeks a writ of Certiorari to callfor the records of the third respondent - Inspector of Factories made inhis proceedings No.E2348 of 1996 dated 26.7.1996 and 30.9.1996 and quashthe same.3.1. It is not in dispute that the third respondent, Inspector ofFactories, an authority appointed under Section 4 of the Tamil NaduIndustrial Establishments (Conferment of Permanent Status to Workmen) Act,1981, (for brevity, "the Act"), by exercising the powers conferred underSection 3 read with Section 5 of the Act, pursuant to the inspection madeon 24.7.1996, passed the impugned orders dated 26.7.1996, 30.9.1996 and13.12.1996, directing the first respondent to confer permanent status to20, 17 and 4 employees respectively, working under the first respondent-Management. 3.2. Since the orders of the third respondent dated 26.7.1996,30.9.1996 and 13.12.1996 had not been complied with, the said 41 employeesfiled Writ Petition No.5962 of 1997 on the ground that the non complianceof the orders of the third respondent is contrary to the spirit and scopeof Section 3 of the Act. 4. Ms.Vaigai, learned counsel appearing for the employees contendsthat as per G.O.Ms.No.86, Cooperation, Food and Consumer ProtectionDepartment dated 12.3.2001, 41 employees are entitled for regularisation.In this regard, she relied upon the decision of a Division Bench of thisCourt in Justine, L. v. The Registrar of Cooperative Societies [2002 (4)CTC 385], wherein, it is held as follows:19(i) that G.O.Ms.No.86, Cooperation, Food and ConsumerProtection Department, dated 12.3.2001, has got the effect ofonly authorising the regularisation of the employeesrecruited by the cooperative societies for the period from9.7.1980 to 11.3.2001 exempting the intervention ofemployment exchange. https://hcservices.ecourts.gov.in/hcservices/ (ii) that G.O.Ms.No.86, Cooperation, Food and ConsumerProtection Department, dated 12.3.2001, shall not operate forregularisation of any employee recruited by the cooperativesocieties in violation of sub-Rule(1) of Rule 149 of theTamil Nadu Cooperative Societies Rules, as amended byG.O.Ms.No.212, Cooperation, Food and Consumer ProtectionDepartment, dated 4.7.1995.5. On the other hand, Mr.R.Balasubramanian, learned counsel appearingfor the Management contends that the said 41 employees cannot be conferredpermanent status as they were not employed through the employmentexchange, that they are excess to the cadre strength of the firstrespondent Management and that the third respondent had passed the ordersof confirmation without conducting any enquiry on the issue. 6. We have given our careful consideration to the submissions of bothsides.7.1. As per the scheme of the Act, on a mere representation by theworkman to the industrial establishment or the employer, as the case maybe, seeking the above statutory right conferred under Section 3 of theAct, such industrial establishment or employer shall provide the benefitsof Section 3 of the Act to the workman, otherwise, such employer shallhave to face the prosecution as provided under Section 6 of the Act. 7.2. In this regard, I am obliged to refer Sections 3 and 5 of theAct, which read as under."Conferment of permanent status to workmen.(1)Notwithstanding anything contained in any law for the timebeing in force every workman who is in continuous servicefor a period of four hundred and eight days in a period oftwenty four calendar months in an industrial establishmentshall be made permanent.(2) A workman shall be said to be in continuousservice for a period if he is, for that period, inuninterrupted service, including service which may beinterrupted on account of sickness or authorised leave oran accident or a strike, which is not illegal, or a lock-out or a cessation of work which is not due to any fault onthe part of the workman.Explanation I ...Explanation II ...5. Power and duties of inspectors:- Subject to anyrules made by the Government in this behalf, the Inspectormay, within the local limits for which he is appointed.(a) enter at all reasonable times and with suchassistants, if any, who are persons in the service of theGovernment or of any local authority as he thinks fit totake with him, any industrial establishment; https://hcservices.ecourts.gov.in/hcservices/ (b) make such examination of the industrialestablishment and of any registers, records and notices andtake on the spot or elsewhere the evidence of such personas he may deem necessary, for carrying out the purposes ofthis Act; and(c) Exercise such other powers as may be necessary forcarrying out the purposes of this Act."8. That apart, this Court, while interpreting the powers conferredunder Sections 3 and 5 of the Act, in Tamil Nadu Civil SuppliesCorporation Modern Rice Mill Engineering Section Employees Union (rep. byits Secretary), Sundarakottai v. Tamil Nadu Civil Supplies Corporation(rep. by its Managing Director), Madras, [1999 (3) LLN 286], has held asfollows:11. Section 3(1), being a non obstante provision, itprevails over any law for the time being in force whichincludes any service rules, Government orders or Governmentinstructions. Therefore, want of sanctioned powers asrequired under General Service Rules cannot take away therights conferred under S.3(1) of the Act. Similarly,Government orders which require that the appointment shouldbe made only through Employment Exchange also cannot be aground to refuse the right provided under S.3(1) of the Actof the petitioners (sic) if they comply with therequirements prescribed under S.3(1). Therefore, it is notopen for the respondent to take shelter under any other lawin force much less any Government orders, Governmentinstructions to deny the benefits conferred under S.3(1) ofthe Act, to the petitioners if they satisfy the conditionsprescribed therein, irrespective of the fact whether thereare irrespective of the availability of sanctioned posts orsponsorship from Employment Exchange.12. It is also relevant to observe S.5 which prescribesthe powers and duties of Inspectors. Under S.5(b), theInspector is empowered to evidence (sic) of such person ashe may deem necessary for carrying out the purposes of theAct. Section 5(c) further empowers the Inspector toexercise such other powers as may be necessary for carryingout the purposes of the Act. Therefore, under the scheme ofthe Act, the Inspector is empowered to exercise all suchpowers that are necessary for carrying out the purposes ofthe Act including taking evidence, holding enquiry, passingorders, achieve the object of the Act and also to implementsuch orders for carrying out the purposes of the Act whichincludes power to initiate penal action under S.6 of the Actfor contravention of S.3(1) of the Act. https://hcservices.ecourts.gov.in/hcservices/

13. In the instant case, the second respondent aftersatisfying himself that the members of the petitioner-unionare entitled for the benefit of S.3(1) of the Act, forwardedthe representation of the members of the petitioner-unionfor appropriate relief. Under such circumstance, if thefirst respondent-Corporation failed to pass appropriateorders, giving benefits of conferring permanent status tothe members of the petitioner-union, certainly the firstrespondent shall face the consequences of prosecutionprovided under S.6 of the Act."9. The contention that the said 41 employees are not required as theyexceed the cadre strength also cannot be accepted, because, as per thecounter affidavit filed by the first respondent, the employees required ismore than 190 to 200 every day. The relevant portion of the counteraffidavit reads as follows:6. This respondent respectfully submits that there areas many as 155 mazdoors and 75 casuals in the 1st respondent'sproduction department i.e. main dairy. Out of thesestrength, 40 to 45 casuals alone are regularly attending dutyin the production department i.e. main dairy. Rest of thecasual workers are attending only for a few days ranging from2 to 10 days in a month. Equally, in the case of mazdoorsalso, 15 of them are irregular in attending duty. Many ofthem are long absentees and are availing their leave on 'lossof pay'. Therefore, totally effective strength of mazdoorsand casual workers comes approximately to 140 to 145.However, the manpower requirement in the main dairy alonecomes to 190-200 leaving a gap of 50-60 manpower shortageevery day." 10. The only remaining contention that the third respondent hadpassed the impugned orders without conducting any enquiry also cannot besustained as the same were passed pursuant to the inspection conducted on24.7.1996, as evident from the proceedings dated 26.7.1996. 11. For the reasons aforementioned, I am convinced that the ratiolaid down by this Court in the decisions cited supra, squarely applies tothe facts of the case and therefore, the 41 employees are entitled to thebenefit of Section 3(1) of the Act.12. Accordingly, I do not find any justification to interfere withthe orders passed by the third respondent. Hence, there shall be adirection to the first respondent Management to confer permanent status tothe employees mentioned in the orders dated 26.7.1996, 30.9.1996 and https://hcservices.ecourts.gov.in/hcservices/

13.12.1996 issued by the third respondent and shall give all consequentialbenefits including arrears of salary and other allowance. Accordingly,W.P.No.5962 of 1997 is allowed and W.P.Nos.32916 and 35143 of 2003 aredismissed. No costs.ATR Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Commissioner for Milk Production and Dairy Development Madras 600 051.2. The Inspector of Factories Second Circle, Madurai.+ one cc to M/s r. Vaigai, Advocate sR 61019+ One cc to Mr. R. Balasubramanian, Advocate SR 61198MDR (co)sg 12/11/07W.P.Nos.5962/97, 32916/03& 35143/031.10.2007.