The Management of Tamil Nadu Civil Supplies Corporation Ltd. v. INSPECTOR OF LABOUR & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 30..7..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 4371 of 1998The Management of Tamil Nadu Civil Supplies Corporation Ltd.Rep. by its Senior Regional ManagerSachidanandha Moopanar RoadThanjavur – 613 001[ PETITIONER ] Vs1 INSPECTOR OF LABOUR [AUTHORITY UNDER THE T.N.INDUSTRIAL ESTABLISHMENTS [CONFERMENT OF PERMANENT STATUS TO WORKMEN] ACT THANJAVUR 2 S VARADARAJAN3 M THOMAS PACKIAM4 S MOORTHY5 R KUMAR6 K PANDIAN7 M SUNDARAMURTHY8 T MAHALINGAM9 C KANNDASAN10 D RAVI11 T ANBHAZHAGAN12 D ARUL JAGANNATHAN13 S SUNDARARAJAN14 S RAJAGURU15 V GANESAN16 V NAGARAJAN17 M SOUNDARAJAN18 A LAZAR19 K PALANIVELU20 S MEGHARAJ21 P SUBBIYAN22 M RATHINAM23 V JEVANANDAM24 S RAMALINGAM25 A RAJENDRAN26 A PALANIVELU27 V RANGACHARI28 R SOUNDARAPANDIAN https://hcservices.ecourts.gov.in/hcservices/ 29 V SRINIVASAN30 N NADIMUTHU31 S THANGARAJ32 R MUNUSWAMY33 K CHANDRAMOHAN34 K BHAVANISHANKAR35 N MANI36 K P MOHAN37 R THANGAVELU38 G SOMU39 P SUKUMARAN40 S SUSAIRAJ41 M VISWANATHAN42 S SIVANANDAM43 M UTHIRAPATHI44 M DHANAPAL45 S VIGNANAMURTHY46 V DHARMARAJAN47 V MANOHARAN48 N SELVARAJ49 R GANESAN50 R NEEDIGANESAN51 L KRISHNAMURTHY52 M RAJENDIRAN53 V SWAMINATHAN54 H R V RAMASAMY55 R THIRUGNANAM56 K ARUNACHALAM57 R SAMIYAPPAN58 G BHASKARAN59 R RAVI60 Y ARUPTHASWAMY61 A SEBASTIAN62 V RAMALINGAM63 R KANNAN64 A JAMES65 A ANBHAZHAGAN66 N EKABARAM67 V SELVARAJU68 V VELMURUGAN69 S MURUGAN70 M G THIAGARAJAN71 M MARIAPPAN72 A NEHRU73 I ISRAEL THANGARAJ74 S ALEXIS75 M PANDIAN76 N VEERASWAMY77 R AYYAPPAN78 K MANOHARAN79 K S PANNERSELVAM https://hcservices.ecourts.gov.in/hcservices/ 80 G PARAMANATHAN81 M SETHURAMAN82 P RAMACHANDRAN83 A GOVINDARAJAN84 K RAMAKRISHNAN85 K NAGARAJAN86 G CHANDRASEKARAN87 R CHANDRASEKARAN88 G PANNERSELVAM[ RESPONDENT ]Rep.by The General Secretary,Tamil Nadu Civil Supplies Corporation,Thozhilalar Sangam (AITUC)65, East Raja Veethi, Thanjavur.Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsin Na. Ka. No. KaA./12171/1995 dated 19.5.1997 on the file of thefirst respondent and quash the same. For Petitioner: Mr. DwarakanathFor Respondent 1: Mrs. C.K. Vishnupriya, AGPFor Respondents 2-8: Mr. Ajay KhoseO R D E RHeard the arguments of the learned counsel for the parties andhave perused the records.2.Aggrieved by the order dated 19.5.1997 passed by thefirst respondent, the Management of the Tamil Nadu Civil SuppliesCorporation Ltd., represented by its Senior Regional Manager,Thanjavur, has filed the present writ petition. In the impugnedorder, the first respondent had granted direction to the petitionerManagement to accord permanent status to respondents 2 to 88 fromthe date on which they had completed 480 days of service within aperiod of 24 calendar months. 3.Pending the writ petition, this Court granted an interimstay on 27.3.1998 which was also made absolute on 28.8.2003. 4.It is now stated by Mr. Dwarakanath, learned counselappearing for the petitioner Management that out 87 employeescovered in the writ petition, 70 were since appointed againstregular vacancies and were made permanent. Four employees haveleft the service of the petitioner Management and joined in someother employment. One employee died and six employees' names weredeleted from the seniority list as they have never reported forwork. Apart from that, six other employees were not given https://hcservices.ecourts.gov.in/hcservices/ regular vacancies as they were juniors and their names will beconsidered only if their immediate seniors will be appointed as perthe Settlement dated 30.01.1997 signed under Section 12(3) of theIndustrial Disputes Act, 1947 [for short, 'I.D. Act']. He alsosubmitted that in the light of these developments, the case of theworkmen should be rejected.5.Mr. Ajay Khose, learned counsel appearing for the workmensubmitted that inasmuch as they have got a statutory declaration ofpermanency from the date notified by the authority, the petitionercannot be allowed to interfere with the same and they are entitledto enforce the order of declaration given by the first respondentauthority. 6.It is, in the light of the factual matrix, the presentwrit petition will have to be decided.7.Before the first respondent authority with whom thepetition was filed by respondents 2 to 88 seeking permanency, thepetitioner Corporation raised a contention that the respondents 2to 88 were engaged in the Direct Procurement Centre (DPC), which isonly as seasonal employment and, therefore, the Tamil NaduIndustrial Establishments (Conferment of Permanent Status toWorkmen) Act, 1981 [for short, 'Permanent Status Act'] will notapply to them. As to whether the establishment is seasonal or notin terms of the Act can be decided only by the State Government.Since the earlier matter was pending before the Supreme Court, theworkmen cannot seek any claim at the moment. It was also statedthat on 19.9.1991, the Settlement under Section 12(3) of the I.D.Act was arrived at between the parties and, therefore, in the lightof the settlement, the workmen cannot claim any permanent status.8.On behalf of the workmen, it was stated that the workerswere engaged as skilled, semi-skilled, manual, clerical andtechnical and, therefore, the procurement centres cannot be treatedas a "seasonal establishment".9.The first respondent authority, on the basis of thecontention raised by the parties, held that the petitionerCorporation is carrying on an essential service of procuring,storing and distribution of essential commodities and it cannot besaid that a watchman, who is engaged for watching the premises canbe said to be employed in a seasonal establishment. Even theManagement itself had taken a stand when the workmen sought forretaining allowance to the effect that it was not a seasonalestablishment. It was also stated that procurement of paddy maybe an activity during harvest seasons but the work discharged bythe workmen in the present case, are all permanent and perennial innature. The case referred to by the petitioner Corporation wasalready disposed of by the Supreme Court and that the settlementdated 19.9.1991 can have no bearing in the present case. The https://hcservices.ecourts.gov.in/hcservices/ authority had accepted the contentions raised by the workmen andthen gave a direction as referred to earlier, to regularise theservice of the workmen from the date on which they had completed480 days of service. It is against this order, the present writpetition has been filed.10.In support of the submission, Mr. Dwarakanath produced acopy of the Award dated 26.10.1994 made in I.D. No. 128 of 1987wherein the Industrial Tribunal, Chennai, rejected the demand ofthe workmen for grant of permanency and stated that the said Awardhas become final. He also submitted that the settlement dated19.9.1991 under Section 12(3) of the I.D. Act relating toregularisation of temporary workmen was considered and as per term3 of the Settlement, qualified seasonal employees in the directprocurement centre will be given preference and relaxing the agequalification, they may be recruited as and when permanent vacancyarises in TNCSC. 11.The learned counsel also referred to the judgment of thisCourt dated 08.3.2004 in W.P. No. 14640 of 1996 between theManagement of the Tamil Nadu Civil Supplies Corporation v.Inspector of Labour in respect of the demand made by 130 workers,who were held to be seasonal employees under the DPCs. In thatcase, a learned Judge of this Court, after following the judgmentof the Division Bench in T.N.C.S.C. Workers' Union v. T.N.C.S.C.Ltd. and others [1998 (1) L.L.J. 728], set aside the order of theInspector of Labour. 12.He also brought to the notice of this Court the order inW.P. No. 14639 of 1996, where a similar order was passed by anotherlearned Judge vide his order dated 06.6.2007 relating to 156workers, setting aside the order of the Inspector of Labour.Therefore, he contended that the said decisions should be followedby this Court also. 13.But, for the reasons best known to the learned counsel,they never brought to the notice of the learned Judges, who heardthose matters, that the order of Division Bench followed by them inTamil Nadu Civil Supplies Corporation workers' Union (cited supra)was taken up before the Supreme Court and the Supreme Courtdisposed of the same on 28.3.2001 in Tamil Nadu Civil SuppliesCorporation Workers' Union v. T.N. Civil Supplies Corpn. Ltd. [2001(4) SCC 469]. However, it is relevant to refer to paragraphs 8and 10 of the said judgment, which reads as follows:-Para 8:"Mr Sharma submitted that even though the DivisionBench has held that the questions raised in theappeal of the Union were the same as those pending inthe writ petitions filed by the 1st respondent, yetthe Division Bench has gone on to give a finding thatthe establishment is of a seasonal character and the https://hcservices.ecourts.gov.in/hcservices/ work is not (sic) intermittent. Mr Sharma submittedthat these findings would now come in the way of theUnion while defending the writ petition filed by the1st respondent. He submitted that this Court shouldeither set aside these findings or clarify that thosewrit petitions would be decided without taking thosefindings into account."Para 10:"In any event, as stated above, the services of theworkmen have been terminated. Therefore, even if thesaid Act squarely applied and the establishment ofthe 1st respondent was not of a seasonal characterand the work was not intermittent, the remedy wouldnow be to file the appropriate proceedings againstthe order of termination. In this view of the matterno purpose would be served by dealing with the correctness of the finding given by the DivisionBench."14.Thereafter, the order of the Supreme Court having giventhe liberty to the workmen to first get the order of terminationset aside before seeking for confirmation, will clearly show thatthe issues are left open for the workmen to agitate at a futuredate. It cannot be said that all the workers in the directprocurement centre will become automatically seasonal employees.While it is one thing to say that the particular establishment isseasonal, it is another thing to state that the workers working inthe said establishment have all become seasonal irrespective of thenature of work turned out by them.15.But in the present case, all the workers covered by theimpugned order were all Assistant Quality Inspectors, Watchmen,Packer, Helper, Bill Clerk, etc. The procurement, storage anddistribution are all on going process and if they are reallyseasonal, there is no question of the workmen being covered by thesettlement or the Award as referred to by the Management. On thecontrary, in the present case, even as per the admission of thelearned counsel for the Management, who has given a tabularstatement showing that the number of the workmen taken against theregular vacancy was 70. 16.Further, in the letter dated 02.4.1991 sent by theChairman – cum – Managing Director of the petitioner Management tothe Joint Commissioner of Labour over which a reference was made inthe impugned order. The Managing Director had written in page 3 asfollows:-"Regarding payment of retaining allowance tothe D.P.C. staff, this cannot be compared to theseasonal industries like sugar industry. This is https://hcservices.ecourts.gov.in/hcservices/ not a seasonal industry and the Government have notdeclared it so. We need not retain them when thereis no procurement and as such no retaining allowanceneed be paid."Even as per the provisions of Permanent Status Act, if thepetitioner wants, they can move the Government to declare the DPCas seasonal and they have not done so.17.The argument that the settlement and the Award is bindingcannot be accepted because of the non-obstante clause found inSection 3(1) of the I.D. Act. Originally, it did not cover aSettlement or an Award. Therefore, if there was any settlement orAward between the employer and the workmen, then the provisions ofTamil Nadu Act 46 of 1981 will have no application. This wasnoticed by a Division Bench of this Court in its judgment in MetalPowder Co. Ltd., Thirumangalam and another v. The State of TamilNadu and another [1985 (2) L.L.J. 376] and after referring to thesimilar provisions in other Labour enactments in paragraph 27, itwas observed as follows:-Para 27:".... We are bound to take notice of the legislativepractice that where the intention of the legislatureis that a law is to have effect notwithstanding anyaward, agreement or contract of service, such anintention is expressed in clear and unambiguouswords. Consequently, in the absence of referenceto an award, an agreement or a contract of service inS.3(1) and restricting the operation of the non-obstante clause in S.3(1) only to "anythingcontained in any law for the time being in force", wemust accept the contention of the learned counsel forthe petitioner that S.3 will not supersede asettlement between the employer and the employees inso far as the subject matter of the settlement isconferment of permanent status to the workmen...."Taking note of the above judgment, the State Legislature amendedSection 3(1) of the Tamil Nadu Act 46 of 1981 and the words'settlement' and 'Award' have been included in the Explanation toSection 3(1) of the Act.18.In fact, when the amended provisions were challengedbefore the Supreme Court, the Act was held to be intravires of theConstitution by the Supreme Court in State of Tamil Nadu and othersv. Nellai Cotton Mills Ltd. and others [1990 (2) SCC 518].Therefore, the objections based on the Award and settlement by thelearned counsel for the Management must necessarily fail. https://hcservices.ecourts.gov.in/hcservices/

19.Thereafter, Mr. Ajay Khose, learned counsel appearing forthe workmen brought to the notice of this Court a judgment of thisCourt in Tamil Nadu Civil Supplies Corporation Modern Rice MillEngineering Section employes Union v. The Tamil Nadu CivilSupplies Corporation, rep. by its Managing Director [1998 Writ L.R.514] relating to the very same Corporation. In that case, thepetitioner Corporation gave a circular regularising the casualworkers working in the Modern Rice Mill and gave their own date ofregularisation. P.D. Dinakaran, J., in paragraphs 11 and 15 ofthe said judgment, held as follows:-Para 11:"Section 3(1), being a non-obstante provision, itprevails over any law for the time being in forcewhich includes any service rules, Government Ordersor government instructions. Therefore, want ofsanctioned posts as required under General servicerules cannot take away the rights conferred underSection 3(1) of the Act. Similarly, GovernmentOrders which require that the appointments should bemade only through Employment Exchange also cannot bea ground to refuse the right provided under section3(1) of the to the petitioners if they comply therequirements prescribed under Section 3(1).Therefore, it is not open for the respondent to takeshelter under any other law in force much less anyGovernment Orders, Government Instructions to denythe benefits conferred under Section 3(1) of theAct, to the petitioners, if they satisfy theconditions prescribed therein, irrespective of theavailability of sanctioned posts or sponsorship fromEmployment Exchange."Para 15:"Therefore, the respondents are directed to modifythe proceedings dated 24.2.1989 to confer thepermanent status to individual workmen from the dayon which they satisfy the condition namelycompleting the continuous service for period of 480days in a period of 24 Calendar months in therespondent establishment. The respondent shallpass appropriate orders as directed above within 6weeks from the date of receipt of a copy of thisorder."20.In the light of the above, the contentions raised by thepetitioner Management will have to be necessarily rejected. Infact, the petitioner Management themselves have regularised theworkmen on a posterior date. In the light of the above judgmentsof this Court and the Supreme Court, such action cannot https://hcservices.ecourts.gov.in/hcservices/ be countenanced by this Court. The impugned order of the firstrespondent will have to be necessarily upheld. Accordingly, thewrit petition will stand dismissed. However, there will be noorder as to costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1. THE INSPECTOR OF LABOUR AUTHORITY UNDER T.N. INDUSTRIAL ESTABLISHMENTS (CONFERMENT OF PERMANENT STATUS TO WORKMEN) ACT, 1981 THANJAVUR2. The Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., Sachidanandha Moopanar Road, Thanjavur-613 001.+ 1 CC To M/s.Meenakshi Sundaram, Advocate SR NO.41085+ 1 CC To Mr.D.Hariparanthaman, Advocate SR NO.41662+ 1 CC To The Government Pleader SR NO.41523 Order in W.P. No. 4371 of 1998 VM {CO}TP/8.8.08