High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 01.07.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAWrit Appeal No.171 of 2008S.R.F. & S.R.F.Polymers Employees Union(Regn.No.821/MDS)rep.by its President V.PrakashPlotNo.11, Bharathiar StreetVimalapuram, Manai,Chennai- 600 068. .....Appellantv.1.State of Tamilnadurep.by its SecretaryDepartment of Labour & EmploymentFort St.George, Chennai- 600 0062.The Chief Inspector of FactoriesChepauk,Chennai – 600 0063.The Inspector of Factories,Thiruvotriyur, Chennai – 600 0194.M/s.S.R.F.Limitedrep.by its Vice PresidentManali Industrial AreaManali, Chennai – 600 068.....RespondentsWrit Appeal filed under clause 15 of the Letters Patent againstthe order of the learned single Judge dated 30.8.2007 made in WritPetition No.20862 of 2007.WP 20862/07:Writ Petition filed under Article 226 of theconstitution of India, praying for the issuance of writ of Mandamus,directing the first and second respondents to ensure that theprovisions of Factories Act, 1948 are duly observed in the factoryof the 4th respondent company at Manali and that the learners andcontract workers are not engaged in direct manufacturing processesin the factory and issue such other orders. https://hcservices.ecourts.gov.in/hcservices/ For appellant :Mr.V.Prakash Party in PersonFor Respondents :Mr.Sanjay Mohan for M/s.S.Ramasubramaniamand Associates for R.4Mr.K.balasubramaniam,Spl.G.P-R1toR3JUDGMENTK.RAVIRAJA PANDIAN, J. The appeal is is filed questioning the correctness of theorder dated 30.8.2007 made in Writ Petition No.20862 of 2007. In thesaid writ petition, the appellant herein sought for the relief ofissuance of writ of mandamus directing the respondents 1 to 3 toensure that the provisions of Factories Act, 1948 are duly observedin the factory of the fourth respondent company at Manali and thatthe learners and contract workers are not engaged in directmanufacturing process in the factory. 2. The above relief has been sought for on the basis of thefollowing facts:The fourth respondent Company is manufacturing nylon tyrefabric and nylon fabric for fish nets at its factory at Manali. Theappellant trade Union is the only trade union in the factoryrepresenting all the 244 permanent workers. On 15.12.2005, 150trainees and apprentices were stopped from service. The fourthrespondent Management has been steadily reduced permanent work forceand simultaneously increased the trainees with an intention togradually substitute the entire permanent work force in the factorywith that of the learners and contract workers. The appellant Unionobjecting the same, on 20.3.2007, made a representation to the ChiefInspector of Factories,. Chennai – the second respondent bringingforth the fact that the Management is acting in gross violation ofthe provisions of the Factories Act and standing orders of theCompany. Pursuant to the same, the Inspector of Factories conductedan inspection on 4.4.2007 and sent a letter dated 20.4.2007 statingthat at the time of inspection there were no trainees or apprenticesfound working in the factory. In respect of certain other violationsthat were found during inspection, after issuance of the show causenotice to the Management, criminal proceedings have also beeninitiated. But in respect of the allegation that the Management isgradually substituting trainees in the place of permanent workers,the appellant was informed that the authorities under the FactoriesAct are not proper authorities, and the appellant could work out hisremedy before the appropriate authorities concerned. Not satisfiedwith the order above referred to, the appellant union filed the writpetition seeking the prayer as stated above. https://hcservices.ecourts.gov.in/hcservices/

3. By reason of the impugned order, the writ petition has beendismissed holding that (a) the grievance of the appellant regardingreduction of permanent work force and employment of trainees intheir place is pending conciliation before the Conciliation Officersand the appellant could prosecute the same if they so advised. (b)there could be no complaint against respondents 1 and 3 in respectof the grievance of the appellant, which is not within theirpurview. (c) The powers of the Inspector of Factories underFactories Act, 1948 is defined under Section 9, which did notempower the Inspector of Factories to decide the matter in issue. Onthe above reasoning and having regard to the admitted fact that inrespect of the reduction of permanent work force and substitutingthe trainees in their place, the appellant union initiatedproceedings under the provisions of the Industrial Disputes Act andthe same is pending for conciliation non-suited the appellant forthe relief as prayed for.4. Mr.Prakash – the party in person raised a point forconsideration before us in the form of proposition of law to thefollowing effect:"Whether the report of the Inspector of Factories isfinal or whether High Court cannot appoint an AdvocateCommissioner to find out the true position existing inthe factory?"In line with the above proposition, he argued the matter andrelying on the decision of the Supreme Court in the case of BANDHUAMUKTI MORCHA VS. UNION OF INDIA AND OTHERS reported in AIR 1984SUPREME COURT 802, which has been countered by Mr.Sanjay Mohan,learned counsel appearing for the fourth respondent and the counselappearing for the respondents 1 to 3.5. When this Court posed a question as to how the above pointhas been answered in the impugned order, Mr. Prakash explained thatalong with the writ petition, the appellant filed an applicationfor appointment of Commissioner also and this Court has alsoappointed a Commissioner at the time of admission of the writpetition and the Commissioner pursuant to the order of this Courtvisited the factory premises of the fourth respondent and submitteda report. The report exhibits the true state of affairs prevailingin the factory about the employment of trainees in the place ofpermanent work force. But that report has been rejected by thesingle Judge on the reasoning that the prayer as sought for cannotbe granted. 6. The factum of appointment of the advocate Commissioner andfiling of his report has not been disputed by the respondent.However, on a reading of the order impugned in this appeal, it isclear that the proposition now raised in the appeal has not beenraised before the learned single Judge. There is absolutely no https://hcservices.ecourts.gov.in/hcservices/ discussion, what so ever, about the point now raised. There is noreference that such an argument was advanced while arguing the writpetition. In the absence of any argument advanced about the finalityor otherwise of the report of Inspector of Factories and as to thepower of this Court to appoint an Advocate commissioner and in theabsence of any finding rendered on the point in issue, Can an appealis maintainable? We afraid we have to answer the question innegative. 7. The appeal can be entertained only to see whether the orderimpugned therein is passed in accordance with law meeting all thepoints raised or it requires interference. The point raised in thisappeal is, as to whether the report of the Inspector of Factories isfinal and whether the High Court can appoint an advocatecommissioner for appraisal of the true position prevailing in thefactory, is not at all a point for consideration in the impugnedorder. If at all the appellant is so advised, he can take recourseto have a finding on the question of law from the learned singleJudge as per the procedure known to law. Useful reference can be hadto the judgment of the Supreme Court in the case of Mohd. AkramAnsari v. Chief Election Officer,(2008) 2 SCC 95, at page 98,wherein the Supreme Court held thus:".... 14. In this connection we would like to say thatthere is a presumption in law that a judge deals with allthe points which have been pressed before him. It oftenhappens that in a petition or appeal several points aretaken in the memorandum of the petition or appeal, but atthe time of arguments only some of these points are pressed.Naturally a judge will deal only with the points which arepressed before him in the arguments and it will be presumedthat the appellant gave up the other points, otherwise hewould have dealt with them also. If a point is not mentionedin the judgment of a court, the presumption is that thatpoint was never pressed before the learned judge and it wasgiven up. However, that is a rebuttable presumption. Incase the petitioner contends that he had pressed that pointalso (which has not been dealt with in the impugnedjudgment), it is open to him to file an application beforethe same learned Judge (or Bench) which delivered theimpugned judgment and if he satisfies the Judge (or Bench)that the other points were in fact pressed, but were notdealt with in the impugned judgment, it is open to the courtconcerned to pass appropriate orders, including an order ofreview. However, it is not ordinarily open to the party tofile an appeal and seek to argue a point which even if takenin the petition or memorandum filed before the court below,has not been dealt with in the judgment of the court below.The party who has this grievance must approach the samecourt which passed the judgment and urge that the otherpoints were pressed but not dealt with. https://hcservices.ecourts.gov.in/hcservices/ As we have concluded that the point raised in the appeal cannotbe allowed to be raised, the decision relied on by Mr.Prakash hasnot been taken up for discussion. 8. For the foregoing reasons, the writ appeal is liable to bedismissed and the same is accordingly dismissed. However, there isno order as to costs. Consequently, the connected M.P.No.1 of 2008is also dismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistraruskTo1. The SecretaryDepartment of Labour & Employment State of TamilnaduFort St.George, Chennai- 600 0062.The Chief Inspector of FactoriesChepauk,Chennai – 600 0063.The Inspector of Factories,Thiruvotriyur, Chennai – 600 019+1cc to Government Pleader Sr 33816+1cc to Mr.V.Prakash Party in Person, Sr 33525KJ (CO)km/7.7.W.A. No.171 of 2008