CoramThe Honourable Mr v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30-8-2007CoramThe Honourable Mr.Justice K. VENKATARAMANWRIT PETITION No.20862 of 2007andM.P.No.1 of 2007S.R.F. & S.R.F. Polymers Employees Union(Regn.No.821/MDS),rep. by its President V.Prakash,Plot No.11, Bharathiar Street,Vimalapuram, Manali,Chennai 600 068. .. PetitionerVs.1. State of Tamil Nadu, rep. by its Secretary, Department of Labour & Employment, Fort St. George, Chennai 600 009.2. The Chief Inspector of Factories, Chepauk, Chennai 600 005.3. The Inspector of Factories, Thiruvotriyur, Chennai 600 019.4. M/s.S.R.F. Limited, rep. by its Vice President, Manali Industrial Area, Manali, Chennai 600 068. .. Respondents Writ Petition filed under Article 226 of the Constitution of Indiapraying to issue a writ of mandamus directing the respondents 1 to 3 toensure that the provisions of Factories Act, 1948 are duly observed inthe factory of the 4th respondent company at Manali and that thelearners and contract workers are not engaged in direct manufacturingprocess in the factory. For Petitioner : Mr.V.Prakash, S.C. Party-in-person For R-1 to R-3 : Mrs.Geetha Tamariaselvan, Govt.Advocate. For Respondent-4: Mr.Sanjay Mohan, For M/s.S.Ramasubnramaiam & Associates Mr.R.Ramesh Advocate Commissioner https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner-union has come forward with the present WritPetition for Mandamus directing the respondents 1 to 3 to ensure thatthe provisions of the Factories Act, 1948 are duly observed in thefactory of the 4th respondent company at Manali and that the learnersand contract workers are not engaged in direct manufacturing processesin the factory and for issuance of other directions.2. Short facts which are necessary for the disposal of thepresent Writ Petition are as follows:-The case of the petitioner-Union is that the 4th respondentcompany has factory in Manali, Chennai which is engaged in themanufacture of nylon tyre fabric and nylon fabric for fishnets. Thepetitioner-Union is the only trade union operating in the factory andrepresents all the 244 permanent workers. On 15.12.2005, 150 traineesand apprentices were stopped from service and this has resulted inincrease in work load of the reduced permanent workers. The 4threspondent-Management has been steadily reduced permanent work forceengaged in the factory and there has been a simultaneous increase in thenumber of trainees in the factory called learners. The intention of themanagement is to gradually substitute the entire permanent work force inthe factory with that of the learners and contract workers. Hence, inthese circumstances, on 20.3.2007. the petitioner-Union made arepresentation to the Chief Inspector of Factories, Chennai, the secondrespondent herein, objecting to the engagement of learners in thefactory in the place of permanent workers in gross violation of theprovisions of the Factories Act and the Standing Orders of the company.In pursuance of the same, the Inspector of Factories, Thiruvotriyur,conducted an inspection of the factory. While so, the Inspector ofFactories sent a letter dated 20.4.2007 stating that at the time ofinspection of Manali factory of the 4th respondent company on 4.4.2007,there is no trainees or apprentices in the factory. It has been furtherstated that the issue of engagement of learners in direct manufacturingprocesses in the factory, the consequent violation of standing orders ofthe company and the reduction of permanent work force in the factory areall beyond the scope of his jurisdiction and the same has to be raisedas an industrial dispute by the petitioner-Union before the appropriateauthorities. Raising the plea that the Inspector of Factories has astatutory duty to ensure that the provisions of the Factories Act areduly complied with in the factory and are not violated in any manner,the petitioner has come forward with the present Writ Petition for therelief set out earlier.3. The respondents 1 to 3 have filed the counter wherein ithas been stated that the role of the Deputy Chief Inspector ofFactories, Thiruvotriyur is confined to implement the provisions of theFactories Act, 1948 and the Rules framed thereunder which includeshealth, welfare and safety of workmen and other related regulations.The workman employed by the 4th respondent whether he is a learner orany other designation is not within the scope of the definition of"workmen" under the Factories Act. The petitioner, in the event of any https://hcservices.ecourts.gov.in/hcservices/ dispute regarding these matters, can very well seek remedy by raising anindustrial dispute under Section 2(k) of the Industrial Disputes Act,1947. Basing on the representation given to the second respondent, thesecond respondent had instructed the Deputy Chief Inspector ofFactories, Thiruvotriyur to take appropriate action regarding thecomplaint made by the petitioner. The Deputy Chief Inspector ofFactories, Thiruvotriyur inspected the factory on 4.4.2007. Since theworkers in the list given by the petitioner-Union were employed in the4th respondent factory and their names are not in the muster roll andtheir pay slip was issued by the 4th respondent's Gummidipoondi unit andnot by Manali unit, he has proceeded against the 4th respondent forcontravention under Section 112/Rule 103 and various provisions of theFactories Act and the Rules. the proposal for prosecution against the4th respondent has been forwarded to the 2nd respondent and chargesheet has been laid before the Chief Judicial Magistrate, Thiruvallur.Thus, the sum and substance of the counter affidavit of respondents 1 to3 is that as far as the reduction of permanent workmen, violation ofStanding Orders, induction of fresher and additional workload arisingout of leave, not filling vacancies, it is outside the purview of theFactories Act and the remedy of the petitioner-Union is only to approachthe appropriate Authority by raising industrial dispute.4. Counter affidavit has been filed by the 4th respondentwherein it has been set out that the Writ Petition is not maintainableagainst the 4th respondent and the same is liable to be dismissed inlimine. The 4th respondent used to take apprentices (learners/trainees)for one year for persons having technical qualification and 3 years fornon-technical persons. Thus, they used to take up the trainees forspecific period and are given on the job training in various Sectionsof the factory. Further, the 4th respondent entered into a memorandumof settlement dated 19.1.1995 reached under Section 12(3) of theIndustrial Disputes Act, 1947 with the recognized union wherein it hasbeen specifically agreed that the workmen and the union would notinterfere with the existing apprenticeship scheme in view of the 4threspondent's commitment to provide training as contribution to thesociety. Later, apprentices were discontinued from the apprenticeship.Hence, it is not correct to state that the apprentice has replaced anexisting employee as alleged by the petitioner-Union.5. It has been further averred that to impart new technology,it requires special skills. Nettur Technical Training Foundation (NTTF)was formed inter alia to promote technical training in India and tosupport industries and institutes in dissemination of technicalknowledge and skill. Thus, the management has decided to takeapprentices (Learners/Trainees) and send them for training in theinstitute called NTTF. At NTTF, three tier training plan comprising ofBasic skills, semi functional training and on the job training, toacquire the desired knowledge/skills. Therefore, it is misleading onthe part of the petitioner-Union to say that the apprentices werestopped from service and there is steep increase in workload on thepermanent workmen. It is not the intention of the management tosubstitute permanent work force with learners. It has been furtheraverred that no contract labour is engaged in machine relatedactivities. The further allegation that the management is engaging https://hcservices.ecourts.gov.in/hcservices/ Learners in direct manufacturing process is contrary to facts. Thus,the sum and substance of the counter affidavit of the 4th respondent isthat the apprentice scheme was not abolished and that there is noincrease in work load upon the permanent workmen. It is not also theintention of the management to substitute the permanent work force withthat of learners. The contract labour is not engaged in machine relatedactivities.6. On these background of pleadings, Mr.V.Prakash, thelearned senior counsel appearing for the petitioner as party-in-person,submitted that the Inspector of Factories under the Factories Act, 1948is empowered to inspect the factory premises for the purposes enumeratedunder the said Act. Further, Rule 13-A empowers the Inspector ofFactories for the purpose of the execution of the provisions Act and thepowers as enumerated in the said Rule. Further, the learned seniorcounsel contended that the letter issued by the Deputy Chief Inspectorof Factories dated 20.4.2007 could not be taken as an order passed inorder to challenge the same before the competent Court.7. Per contra, Mr.Sanjay Mohan, the learned counsel appearingfor the 4th respondent, contended as follows:-(a) As far as the first portion of the order is concerned,namely, directing the respondents 1 to 3 to ensure that the provisionsof the Factories Act 1948, the same are duly observed in the factory ofthe 4th respondent at Manali, there cannot be any grievance by the 4threspondent. But, the second portion of the relief that has been soughtfor by the petitioner-Union is outside purview of the Factories Act andthe remedy of the petitioner-Union lies before the other Authority andthe remedy of the petitioner is to take proceeding under the IndustrialDisputes Act. (b) Furthermore, the order of the Deputy Chief Inspector ofFactories dated 20.4.2007 has to be challenged by the petitioner.Without challenging the said order, a mere writ petition for mandamuswill not lie.(c) The entire grievance of the petitioner as put forth in theaffidavit in support of the Writ petition is a matter which has to beraised as industrial dispute and the respondents 1 to 3 have nojurisdiction for the the same. Further, the learned senior counselsubmitted that the dispute that has been raised by the petitioner ispending before the Conciliation Officer and the remedy of the petitioneris to approach the Tribunal if there is a failure report filed by theConciliation Officer.8. Mrs.Geetha Tamaraiselvan, the learned Government Advocateappearing for the respondents 1 to 3, contended that the respondentshave acted as per the powers given to them under the Factories Act andthey cannot be expected to take action which is outside the purview oftheir powers enumerated under the Factories Act. The remedy of thepetitioner lies before the other Authority which is constituted underthe Factories Act. https://hcservices.ecourts.gov.in/hcservices/

9. I have heard Mr.V.Prakash, the petitioner/party-in-person,Mrs.Geetha Tamaraiselvan, the learned Government Advocate appearing forthe respondents 1 to 3 and Mr.Sanjay Mohan, the learned counselappearing for the 4th respondent.10. The grievance of the petitioner as could be seen from theaffidavit is mainly on the following footing that thetrainees/apprentices were stopped from service which resulted in theincrease in the workload of the permanent workmen and the permanentworkforce is steadily reduced. The intention of the management isgradually to substitute the entire permanent work force in the factorywith that of learners and contract workers. With these backdrops, thepetitioner has approached this Court for the relief set out earlier. 11. Section 2(k) of the Industrial Disputes Act, 1957 whichreads as follows:-"Industrial dispute" means any dispute or differencebetween employers and employers, or between employers andworkmen, or between workmen and workmen, which isconnected with the employment or non-employment or theterms of employment or with the conditions of labour, ofany person;"The above provision makes it very clear that if there is any disputebetween employers and workmen which is connected with the employment ornon-employment or the terms of employment, the employees can raise anindustrial dispute under the said Act. In fact, the petitioner,according to the learned counsel appearing for the 4th respondent, hasraised a dispute and the same is pending enquiry before the ConciliationOfficer. This fact has been admitted by the petitioner in para 3 of theaffidavit which reads as follows:-"In the year 2000, the permanent work force wasfurther reduced to 330 workers by reason of theretirement, death, dismissal of workers, etc. 550trainees were inducted in the year 2000. In the year2005, the permanent work force was further reduced to268 and there were 210 trainees/apprentices with 35trainees brought in from the Gummidipoondi factory ofthe respondent company where they had been appointed.On 15.12.2005, 150 trainees and apprentices were stoppedfrom service and this resulted in an increase in thework load of the reduced permanent workers. I submitthat an industrial dispute has been raised by thepetitioner Union regarding the reduction in manpower andthe said dispute is pending reference."12. Thus, the grievance of the petitioner regarding reductionin manpower, employment of learners and contract workers, etc. arepending reference before the Conciliation Officer and the petitioner canvery well agitate the same before the Conciliation Officer. When thematter in issue is within the purview of Industrial Disputes Act, the https://hcservices.ecourts.gov.in/hcservices/ respondents 1 to 3 have no role to play in those matters. What theAuthority constituted under the Industrial Disputes Act has to do issought to be directed to be carried out by the respondents 1 to 3 whosepowers are defined under the Factories Act, 1948. The powers ofInspectors constituted under the Factories Act 1948, is defined underSection 9 of the said Act which nowhere calls upon them to decide thematter in issue which has been raised by the petitioner. 13. As rightly pointed out by Mr.Sanjay Mohan, the learnedcounsel appearing for the 4th respondent, in the Factories Act, nowherethe adjudicatory power has been given to the Inspectors of Factories inthe said enactment. The Act speaks only the welfare measures and thesafety measures and not more than that. It has to be further seen thatthere exists a Standing Orders for the 4th respondent-company whichdefines the classification of employees and other definition. Themembers of the petitioner-Union is governed by the said Standing Orders.Furthermore, the Deputy Chief Inspector of Factories, Thiruvottiyur hasproceeded against the 4th respondent for contravention of certain lachesand charge-sheet has been laid against the 4th respondent before theChief Judicial magistrate, Thiruvallur. While so, there could be nocomplaint against the respondents 1 to 3 for failure to take actionwhich is not within their purview, but it is within the purview of theOfficers constituted under the Industrial Disputes Act. This is alsofortified, if the Factories Act, 1948 and the Rules framed thereunderare looked into. As stated already, Section 9 of the Factories Actdefines the powers of Inspectors and Rule 13-A of the said Rules dealswith the same. Nowhere either under section 9 of the Factories Act orunder Rule 13-A of the Rules framed under the said Act contemplatesthat the respondents 1 and 3 to decide the matter which has been soughtto be raised by the petitioner against the 4th respondent.14. The petitioner/party-in-person has relied on the decisionreported in 2001(7) S.C.C. 659 (S.M.DATTA v. STATE OF GUJARAT) andcontended that the Factories Act is a welfare legislation and a completecode in itself and the Act and the Rules and the forms prescribed by theState Government have to be read in consonance to give efficacy to theintent of the legislature. That is the case where the complaint filedby the Inspector of Factories alleging non-compliance of section 63 ofthe Factories Act by the company sought to be quashed before the Highcourt in exercise of its criminal revisional jurisdiction and the ApexCourt in the facts and circumstances of that case has held that theFactories Act which is a benevolent piece of legislation and the Highcourt is justified in refusing to quash the complaint at the initialstage. However, the case on hand is totally on a different footing andhence, the said decision will not be applicable to the facts andcircumstances of this case. 15. Yet another decision that has been relied on by thepetitioner/party-in-person is reported in AIR 1984 S.C. 802 (BANDHUAMUKTI MORCHA v. UNION OF INDIA). The consideration in the saiddecision was about the locus standi of a person who has filed the publicinterest litigation regarding bonded labour. Hence, the said judgmentwill have no bearing on the present case, since the issue is entirelydifferent. https://hcservices.ecourts.gov.in/hcservices/

16. Hence, for the reasons stated above, I am not inclined togrant the relief that has been sought for by the petitioner in the WritPetition.17. In the result, the Writ Petition stands dismissed.Consequently, M.P.No.1 of 2007 is closed. However, there is no order asto costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrardpp To1. The Secretary, State of Tamil Nadu, Department of Labour & Employment, Fort St. George, Chennai 600 009.2. The Chief Inspector of Factories, Chepauk, Chennai 600 005.3. The Inspector of Factories, Thiruvotriyur, Chennai 600 019.1 CC To Mr.V.Prakash, Advocate, SR NO.54171.1 CC To M/s.Rama Subramaniam & Associates, Advocate, SR NO.54548.1 CC to the Government Pleader, SR NO.54405.W.P.No.20862 of 2007;& M.P.No.1 of 2007 PV(CO)RVL 20.09.2007