The Thirumagal Mills ltd v. The Deputy Chief Inspector ofFactories Division II Vellore2.A.B.Babu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20-11-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.4222 of 2007andMP Nos.1 and 2 of 2007The Thirumagal Mills ltd.,Post Box No.1,Katpadi RoadGudiyattam 632 602... Petitionervs1.The Deputy Chief Inspector ofFactories Division II Vellore2.A.B.Babu.. RespondentsWrit petition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorari to call for the records of the order ofthe first respondent in Proceedings No.m/5062/2006 dated 1.12.2006 andquash the same.For Petitioner: Mr.R.ParthibanFor Respondents: Mr.S.Gopinathan Additional GovernmentPleader for R1 Mr.S.T.Varatharajulu for R2ORDERChallenge is made to an order of the first respondent made inProceedings No.m/5062/2006 dated 1.12.2006, by way of this writ petitionfor a writ of certiorari. 2.The second respondent herein made an application before the firstrespondent namely the Deputy Chief Inspector of Factories, Division II,Vellore, stating that he has got to be declared as a permanent employee ofthe writ petitioner Company. On enquiry, the first respondent passed anorder declaring that he has acquired permanent status, which is thesubject matter of challenge before this Court.3.The affidavit in support of the writ petition and the affidavit insupport of the vacate stay petition filed by the second respondent, areperused. The Court heard the learned Counsel on either side. https://hcservices.ecourts.gov.in/hcservices/

4.The case of the second respondent while he made an application forpermanent status, was that he joined the writ petitioner establishment inthe year 1995; that he was working continuously as an employee in QualityControl Section; that in 24 calendar months from 24.2.1995 to 23.2.1997 heworked for 628 days; that number of employees who joined with him, havebeen regularized long back; but, he was not given so; and that under thecircumstances, it became necessary that a direction has got to be issuedto the management to regularize his services. 5.The application was resisted by the writ petitioner company statingthat the application could not be sustained in view of the provisions ofthe Tamil Nadu Industrial Establishments (conferment of permanent status)Act, 1981; that he joined the petitioner company only as an apprentice inthe month of February 1995; that an apprentice was only a learner who wasgiven nominal allowance during the period of his learning; that he wasnever an employee or recognized as an employee at any point of time; thathe has also absented himself from duty for a longtime; that pursuantthereto, his services were also terminated; that since he was not anemployee, he should not be given permanent status, and hence, theapplication was to be dismissed. 6.After making an enquiry and in appraisement of the materialsavailable, the application was ordered by the lower authority which thepetitioner company challenged before this Court.7.In support of the writ petition, the learned Counsel for thepetitioner would submit that the second respondent was only an apprentice;that even in the application given by him, he has put his designation onlyas apprentice; that as per the Standing Orders, he has also been certifiedas apprentice; that at no stretch of imagination, the apprentices could beconsidered as employees; that it is also made clear in so may labourenactments; that the Tamil Nadu Industrial Establishment (Conferment ofPermanent Status to Workmen) Act, 1981, defines a workman as a personemployed in any industrial establishment to do any skilled or unskilled,manual, supervisory, technical or clerical work for hire or reward,whether the terms of employment be expressed or implied, but does notinclude any such person; that in the instant case, he was only anapprentice when joined the service; that he continued to be so till hisservices were terminated; that it is also pertinent to point out that dueto the long absence and that too, even without any permission or leave,his services were terminated; that he has also challenged the same beforethe Labour Court; that the proceedings were also pending; that since hejoined only as apprentice, in view of the provisions of the Act, he cannotbe conferred as a permanent employee; that the lower authority has neitherconsidered the position both factual and legal, but has ordered theapplication, and hence, it has got to be quashed.8.In support of his contentions, the learned Counsel for thepetitioner relied on a decision of this Court reported in 1985 II-LLJ 376(METAL POWDER CO. LTD. AND ANOTHER V. THE STATE OF TAMILNADU AND ANOTHER). https://hcservices.ecourts.gov.in/hcservices/

9.In answer to the above, the learned Counsel for the secondrespondent would submit that it is not correct to state that the secondrespondent joined as an apprentice; that it is true that in theapplication, his designation is shown as apprentice; but, the veryapplication would clearly reveal that he is eligible for bonus, medicalbenefit namely ESI, P.F. and gratuity; that needless to say that as far asthe apprentice is concerned, he is not eligible for all those benefits;that though his designation is shown as apprentice, he was never treatedas apprentice; but, he was working as Skilled Supervisor in the "QualityControl Section; that apart from that, he was working from 1995 onwards;that even as per the provisions of the Act, a person could be allowed todo skilled work for one year and to do unskilled work for three years;that for more than this period, a person cannot be kept as an apprentice;that in the instant case, he has been working there for more than adecade; that under the circumstances, it would be futile on the part ofthe petitioner to state that he was only an apprentice and not a permanentemployee; that added circumstance is the termination of his services bythe management; that this was adding factor in favour of the secondrespondent; that in such circumstances, the lower authority was perfectlycorrect in giving permanent status to him, and hence, the writ petitionhas got to be dismissed.10.The Court paid its anxious consideration on the submissions made,and is of the considered opinion that the writ petition does not carry anymerit whatsoever. The only question that was posed before the authoritybelow namely the first respondent, was that whether the second respondentcould be given the status of permanent employee or not so. Concededly,the second respondent joined the service of the writ petitioner company in1995, and he was there for more than 10 years. The contention put forthby the petitioner's side that he is not a permanent employee, but only anapprentice, has got to be discarded for more reasons than one.Admittedly, he has been in service for the past 10 years. The onlymaterial available for the petitioner to state that he was only anapprentice is the application wherein his designation is found asapprentice. But, it is pertinent to point out that he has been in servicefor more than 10 years. Even as per the provisions of the Act, a personcan be kept as an apprentice in a skilled labour for a period of one yearand in the unskilled labour for a period of three years. But, in thiscase, there was no justification for the petitioner company to keep aperson like the second respondent, as an apprentice for more than 10years, and hence, the circumstances warranted for making a comment by thelower authority as unfair labour practice. Even from the application nowrelied on by the petitioner's side, it would be quite clear that he waseligible for bonus, medical benefit, PF, etc. Needless to say that anapprentice is not entitled for those benefits. 11.Adding circumstance in the instant case was that the petitionercompany has terminated his services due to his long absence. In the caseof apprentices, no question of termination of service would arise. Thecontention put forth by the learned Counsel for the petitioner that aperson whose services has been terminated, cannot ask for permanent statuscannot be countenanced. An employee whose services was terminated cannotmaintain an application for permanent status before the concerned https://hcservices.ecourts.gov.in/hcservices/ authority after an order of dismissal was made. But, in the instant case,pending the application for permanent status, the services of the secondrespondent was terminated by the petitioner company. Under thecircumstances, such contention cannot be countenanced. Apart from this,the termination of the services of the second respondent by the petitionerwould clearly indicate that he was an employee. Had he not been anemployee as contended by the petitioner's side, there was no need ornecessity for terminating his services. 12.Added further, in the instant case, the application made by thesecond respondent seeking for permanent status, was pending before theDeputy Chief Inspector of Factories. Pending the same, his services wasterminated. Challenging the termination, another industrial dispute hasbeen raised before the Labour Court. Those proceedings are separate andindependent, and one has nothing to do with the other. Thus, it would bequite clear that he was only a permanent employee and not an apprentice ascontended by the petitioner's side. The order of the authority below doesnot require any interference. Hence, this writ petition is dismissed. Nocosts. Consequently, connected MPs are also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Deputy Chief Inspector of Factories Division II, Vellore1 cc To Mr.S.T.Varadarajulu, Advocate, SR.68580.1 cc To The Government Pleader, SR.69036.WP No.4222 of 2007VSV(CO)RVL 26.11.2007