High Court · 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.9.2011CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.8262 of 2009The Executive EngineerTWAD Board, Maintenance Division(Siruvani), Ragupathy Layout 2nd StreetSaibaba Colony, Coimbatore – 11... PetitionerVs.1. The Labour Inspector Coonoor, Nilgiris.2.K.Gopalan3.N.A.Kurunthasalam4.K.Shanmugam5.P.Selvakumar6.M.Mayilsamy7.R.Gunasekaran8.K.Rangasamy9.G.Radhakrishnan10.N.Munusamy11.P.Velusamy12.V.Sundaram13.P.Subramaniam14.M.Rajan15.M.Kanakaraj16.N.Marimuthu17.A.C.Lakshmanan18.R.Velusamy19.P.Selvakumar20.M.Senthil Kumar21.M.Pathiran22.J.Mohanavadivel23.R.Veerasamy24.G.Saravanan25.A.V.Sampath Kumar26.A.Pathiraan27.N.Chandrasekaran28.G.Dinakaran29.K.Pannari30.N.Ramasamy31.P.Murthy https://hcservices.ecourts.gov.in/hcservices/

32.S.Rajamanickam33.S.Suresh34.C.Velumani35.J.Sampathkumar36.A.Kamaraj37.S.Mohanraj38.A.N.Arankasamy.. RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of writ of Certiorari to call for the records inNa.Ka.No.2680/07, dated 9.2.2009 passed by the first respondent andquash the same.For Petitioner:Mrs.Sudarshana SundarFor Respondents :Mr.R.M.Muthukumarfor 1st respondent Mr.M.Muthupandianfor respondents 2 to 38ORDERThe writ petition is filed by the Executive Engineer, Tamil NaduWater Supply and Drainage Board, Maintenance Division, Siruvani atCoimbatore. In this writ petition, the petitioner challenges theorder passed by the first respondent/Inspector of Labour at Coonoordated 9.2.2009. By the impugned order, the first respondent directedthe conferment of permanent status on respondents 2 to 38, holdingthat they had completed 480 days of service within a period of 24calendar months and they are eligible for grant of conferment ofpermanent status in terms of Section 3(1) of the Tamil NaduIndustrial Establishments (Conferment of Permanent Status to Workmen)Act, 1981 (for short "the Tamil Nadu Act 46 of 1981"). 2. The writ petition was admitted on 29.4.2009. Pending the writpetition, this Court granted interim stay. The contestingrespondents have filed a vacate stay application in M.P.No.1 of 2010together with the supporting counter affidavit dated 2.8.2010.3.1. In the present case, each of the contesting respondentsfiled an application before the first respondent, being the Inspectornotified under the Tamil Nadu Act 46 of 1981, stating that they areworking under various capacities with the petitioner and despite thisCourt holding that such of those employees are eligible to be madepermanent, these respondents have not been made permanent.3.2. On receiving notice on these applications, the petitionerfiled a counter statement dated 18.8.2007 stating that he had neveremployed anyone of the contesting respondents and he has also notdisbursed their salaries and he has no control over thoserespondents and there was no employer-employee relationship betweenthe petitioner and the contesting respondents. The maintenance of https://hcservices.ecourts.gov.in/hcservices/ the Combined Water Supply Scheme was entrusted to individualcontractors, who in turn carried out the distribution and other worksengaging their own men and the salaries of these workers were alsodistributed through the contractors concerned and it is for thecontractors to engage them and look after their contract work and asthe contract system was in force, the petitioner was not maintainingany records in respect of these workmen. It was also contested thatthey are not the principal employer.3.3. When the matter was pending before the first respondent, thecontesting respondents filed an application on 20.8.2007 forproduction of documents relating to contract agreement, the number ofworkers employed in the maintenance work, the number of workers whoare engaged in the capacity of Fitters, Electricians, PumpOperators, Lineman, the wages paid to them and the log book for theyear 2001-2007. The contesting respondents also filed a rejoinderstatement dated 20.8.2007 stating that they have been working on awork of regular nature and even the so-called contractors have notapplied for licence under the Contract Labour (Regulation andAbolition) Act and since the petitioner is part of the Tamil NaduWater Supply and Drainage Board, which is a Government owned company,they cannot observe unfair labour practice. 3.4. It is also noted that before the first respondent, who isthe Inspector appointed under the Tamil Nadu Act 46 of 1981 and whois also bound to conduct a summary proceedings, no oral evidence waslet in and no documentary evidence was let in, except to the extentthat the contesting respondents produced on their own the log bookmaintained in their section in which their names were found, whichwere countersigned by the Assistant Engineer. The AssistantEngineer's signature was shown to the management and they did notgive any reply. Therefore, the authority took adverse notice on theground that the denial by the Executive Engineer that he does notmaintain any accounts cannot be accepted and since they have notfiled the muster roll and the details of contract, he has presumed onthe basis of the log book that the contesting respondents have workedfor a period of 480 days. He also believed the certificate issuedby the local body authorities and the statement given by them. Inthe absence of any statement made by the petitioner/Board, he hadcome to the conclusion that the contesting respondents have worked480 days of service within a period of 24 calendar months and theyare eligible for grant of permanent status.4. In the affidavit filed in support of the writ petition, it wasstated that even the log books are maintained in the pump stationsonly by the contractors and it contains details relating to the powerfactor, volts, amps, required pressure, head and quantity of thewater pumped and other instructions and merely countersigning thoselog books does not establish any master and servant relationshipbetween the petitioner/Board and the contesting respondents. It is https://hcservices.ecourts.gov.in/hcservices/ also stated that the authority did not take note of the defence takenby the petitioner/Board before him.5. In the counter affidavit filed on behalf of the contestingrespondents, it was stated that the method and mode of recruitment isnot relevant in deciding the claim made under the Tamil Nadu Act 46of 1981. When they pleaded that they were directly employed by thepetitioner/ Board and produced documentary evidence, in the absenceof any further evidence, the authority is bound to accept thestatement made by the contesting respondents. In paragraph (9) ofthe counter, it is stated that the contractors do not have licence interms of Section 12 of the Contract Labour (Regulation andAbolition) Act and therefore, in the absence of such evidence, evenif there was any change of the so-called contractors, they werecontinuously employed.6. Mrs.Sudarshana Sundar, learned counsel for the petitionersubmitted that when the trade union representing these workmen raisedan industrial dispute regarding grant of permanency before theIndustrial Tribunal the names of these workmen were not even shown,which leads to a strong presumption that they were not engaged by theBoard, and secondly, such a delicate question relating to theemployer-employee relationship or the factum of the contract beingsham and nominal cannot be gone into by the authority under the TamilNadu Act 46 of 1981.7. Per contra, Mr.M.Muthupandian, learned counsel for respondents2 to 38 placed reliance upon the judgment of this Court Tamil NaduWater Supply and Drainage Board Employees Union v. Tamil Nadu WaterSupply and Drainage Board and others, 1993 I LLN 449 to the effectthat the provisions of Tamil Nadu Act 46 of 1981 will squarely applyto them and the said decision was rendered in respect of the verysame petitioner/ Board. He also relied on the judgment of thisCourt in A.Palanivel and two others v. Tamil Nadu Khadi and VillageIndustries Board and others, 1998 WLR 271 and referred paragraph(22), wherein it was held that when the Board even after givingopportunity did not fulfill their obligation except filing a counteraffidavit, the particulars given by the workmen can be accepted.8. In the present case, it must be noted that the firstrespondent has got a multifarious role under the Tamil Nadu Act 46 of1981 and he is not merely an adjudicating authority and is also anInspector under the Act and primarily under Rule 6 he can examine therepresentation and after making enquiries can make suitabledirections. Under Rule 4, the employer is bound to furnish anyinformation that an Inspector may require for the purpose ofsatisfying himself as to whether the provisions of the Tamil Nadu Act46 of 1981 and the Rules have been complied with by the employer.In the absence of maintenance of such records, he is also empoweredto sanction prosecution against such employer. https://hcservices.ecourts.gov.in/hcservices/

9. In the present case, the petitioner had stated that thecontract under which the contesting respondents have been employedwas not a valid contract in terms of the Contract Labour (Regulationand Abolition) Act and that they were not licenced under theContract Labour (Regulation and Abolition) Act and even though therewas change of contractors, their services have been continueduninterruptedly. When the petitioner has taken a definite stand thatthey have no direct records relating to the employment of thecontesting respondents, the authority has not even referred to thesame in the order impugned in the writ petition. 10. Further, the production of log book, as explained by thepetitioner/Executive Engineer, is in relation to the operationscarried on by the Board and do not reflect the service particulars ofthe employees, namely as to whether they were directly employed orthrough contractors. No doubt, in the present case, the petitionerhas not discharged their obligation in satisfying the authority thatthe contesting respondents were employees of the contractors. Butyet only on the basis of the assertion made by the contestingrespondents, the authority cannot direct grant of conferment ofpermanent status without satisfying himself whether they areemployees of the Board or of the contractors. As rightly contendedby the petitioner/Board, the log book only shows the presence of thecontesting respondents in the work spot at the relevant time. Inessence, the contesting respondents pleaded that there was asupervision by the Assistant Engineer employed by the Board andtherefore, they are the employees of the Board. Even in cases wherethey are employees engaged through contractors, there will be certainamount of supervision that will be required by the officers of theprincipal employer and that by itself will not establish therelationship of master and servant between such employer and theworkers and there must be material to show that they were originallyemployed by the Board and continued to be employed under the serviceof the Board.11. The Supreme Court in Workmen of Nilgiri Coop. Mkt. SocietyLtd. v. State of T.N., (2004) 3 SCC 514 has held that merely becausethere was some supervision over the work of the workers, it will notautomatically be a conclusive factor for establishing the nature ofrelationship between the employer and employee.12. Even the contesting respondents in their counter affidavithave stated that the contract was sham and nominal and thecontractors were not having any licence under the Contract Labour(Regulation and Abolition) Act. Such disputes are very complex incharacter and the authority must pass a speaking order with referenceto establishment of the following factors: (i) that the contestingrespondents were employed by the petitioner/Board and the wages are https://hcservices.ecourts.gov.in/hcservices/ paid by the Board; and (ii) they were direct employees of thepetitioner/Board. In the absence of such finding, the applicationof the Tamil Nadu Act 46 of 1981 in relation to the petitioner, whois a principal employer, will not arise. Since the authority mainlywent by the production of the log book and the statement given by theworkers and did not consider the objections raised by the management,this Court is obliged to interfere with the impugned order.In view of the above, the writ petition stands allowed and thematter is remanded to the first respondent for fresh disposal inaccordance with law. It is open to both parties to lead appropriateevidence and also to summon necessary documents which are requiredfor the determination of the lis between the parties. No costs.Consequently, M.P.No.1 of 2009 and M.P.No.1 of 2010 are closed.Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.sasiTo:The Labour Inspector Coonoor, Nilgiris.1 cc To Mr.M.Muthupandian, Advocate Sr 59979W.P.No.8262 of 2009gv[co]gp/11.10