The Management, Ambattur Dairy Corporation v. The Presiding Officer, 1st Additional Labour Court, Chennai-600 104

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 06-02-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.2556 of 20031.The Management, Ambattur Dairy Corporation Madras-98.2.The Tamilnadu Co-operative Milk Producers Federation Ltd., Madhavaram, Chennai-51. ..PetitionersVersus1.The Presiding Officer, 1st Additional Labour Court, Chennai-600 104.2.C.Harikrishnan ..RespondentsPrayer: This petition has been filed seeking for a writ ofCertiorari, calling for the records relating to the proceedings inI.D.No.464 of 1997, dated 29.4.2002 of the 1st respondent and quashthe same. For Petitioners : Mr.S.RavichandranFor Respondents : Mr.G.Jeremiah (R2)O R D E RHeard the learned counsel appearing for the petitioners and thelearned counsel appearing for the second respondent. 2. This writ petition has been filed challenging the award ofthe first respondent Labour Court, dated 29.4.2002, made inI.D.No.464 of 1997.3. It has been stated that the case of the second respondent,before the first respondent Labour Court, is that he was employed asa casual Labour (PREPAC) in the Ambattur Unit of the Tamilnadu Co-operative Milk Producers Federation, Madras. He was employed fromthe year, 1985, on daily wage basis, till the year, 1996. His lastdrawn wages is Rs.35/- per day. The second respondent had furtherstated that he had worked for more than 240 days in a year andtherefore, he is a workman under the petitioner Corporation and that https://hcservices.ecourts.gov.in/hcservices/ his non-employment by the petitioner Corporation is arbitrary andillegal. 4. It was also stated that he was given an identity card by thepetitioner Corporation and that he was continuously employed for aperiod of more than 11 years, from 1985 to 1996. However, he wasterminated from service, orally, in the month of November, 1995.Thereafter, based on the failure report submitted by theConciliation Officer, the second respondent had raised an industrialdispute before the first respondent Labour Court, in I.D.No.464 of1997. 5. The petitioner, while denying the allegations made by thesecond respondent before the Labour Court, had submitted that thelabourers engaged by the petitioners were working in three shifts,depending upon the requirement and shortage arising due to theregular employees going on leave or absenting themselves from duty.The second respondent was engaged as a casual labourer, on dailywage basis, at the rate of Rs.35/- per day, which was fixed by theDistrict Collector. Since the temporary employees were engaged onlyin the leave vacancies or in the vacancies caused due to the absenceof the regular employees, they do not have any right to the post.The claim of the second respondent that he had worked for more than240 days in a year and for 480 days in two years and therefore, heshould be considered to be a permanent workman under thepetitioners, in accordance with the provisions of the Tamil NaduIndustrial Establishments (Conferment of Permanent Status toWorkmen) Act, 1981, is devoid of merits. 6. It is not for the Labour Court to confer the status of apermanent workman, by invoking the provisions of the said Act. Atemporary daily-rated employee cannot be considered to be apermanent workman, as held by the first respondent Labour Court inits award, dated 29.4.2002. It is only the competent authority underthe said Act, who can confer the permanent status on the workman.The Labour Court had failed to consider the fact that the secondrespondent had worked only for a period of 726 days during the 11years, from 1985 to 1996. Further, the second respondent was not ina position to show that he had worked for a period of 480 days intwo years, as required under the Act, to be conferred with thestatus of a permanent workman. In fact, it is for the workman toshow that he had worked for more than 480 days in two years, asrequired under the provisions of the Act, before being conferredwith the status of a permanent workman. Therefore, the award of thefirst respondent Labour Court, dated 29.4.2002, made in I.D.No.464of 1997, is arbitrary, illegal, and void. 7. The petitioners in the present writ petition had submittedbefore the first respondent Labour Court that whenever there was aneed for employment of casual labour, applications had beenreceived, directly, from persons who were residing in and around thework area. The applicants should have completed 18 years of age andshould also possess the minimum educational qualifications necessary https://hcservices.ecourts.gov.in/hcservices/ for such employment. Once such persons are selected they would beissued with photo identity passes. 8. It had been further stated that the labourers were engagedin three shifts depending upon the requirement and shortage arisingout of the regular employees going on leave or absenting themselvesfrom duty etc., The second respondent had been engaged only as acasual labourer, on daily wage basis, at the rate of 35/- per day,which was the rate applicable at the relevant point of time. Therate of daily wage had been fixed by the District Collectorconcerned, from time to time and the casual labourers were beingengaged only when there was work available for them, on `no work nopay basis'. The engagement of such labourers was only for about 45to 55 days and it will not be beyond 60 days, on any account. Hence,the contention of the second respondent that he was working for 480days, in two years, is denied. The second respondent had beenengaged only for a limited number of days, that too during specificyears, as shown below:Sl.NODateName of the Unit and No. of days worked AmbatturAyanavaram Transport11985Nil------21986Nil------3198754------41988101------5198950------61990---------71991Nil------8199254------9199347------1019942651781119951105454121996Nil47Nil9. The petitioners had further stated that the authoritiesprescribed under the Tamil Nadu Industrial Establishments(Conferment of Permanent Status to Workmen) Act, 1981, are to decidewith regard to the permanent status of the second respondent. Thereis no provision in the said Act according to which a workman wouldbe conferred permanent status, automatically, without following theprocedures established therein. The first respondent Labour Court,without following any of the procedures established by law, hadpassed an award in favour of the second respondent, contrary to thefacts and circumstances of the case.10. No counter affidavit has been filed on behalf of the secondrespondent. https://hcservices.ecourts.gov.in/hcservices/

11. The learned counsel appearing on behalf of the petitionershad submitted that the award of the first respondent Labour Court,dated 29.4.2002, is a nullity, as it has been passed withoutjurisdiction and therefore, it is liable to be set aside. Thejurisdiction of the first respondent Labour Court had been ousted,in view of the provisions of the Tamil Nadu IndustrialEstablishments (Conferment of Permanent Status to Workmen) Act,1981.12. The conferment of permanent status can be made to a workmanonly under Section 3 of the Tamil Nadu Industrial Establishments(Conferment of Permanent Status to Workmen) Act, 1981, provided thatthe requirements prescribed therein had been satisfied. The power toconfer permanent status could be exercised only by the competentauthority, as provided under the act. The Labour Court is notempowered to confer such a status on a workman. The first respondentLabour Court had not given any finding with regard to the issue ofjurisdiction raised by the petitioners. Even though the onus was onthe second respondent to prove that he was in continuous employmentfor a period of 480 days in two years, he had failed to do so. Thefirst respondent Labour Court had failed to consider the fact thatthe second respondent had been employed by the Management of theAmbattur Dairy Corporation, Chennai, only on a temporary basis,during the absence of the regular workmen, either due to theirabsence or on their availing casual leave. The first respondentLabour Court had also failed to appreciate the fact that the secondrespondent had worked only for a period of 726 days during theentire period of 11 years, from 1985 to 1996. When there is nosanctioned post or a permanent vacancy in such a post, absorption ofany workman, giving him a permanent status, cannot be done.Therefore, the first respondent Labour Court had erred in passingthe award, dated 29.4.2002, to reinstate the second respondent, as apermanent employee, in the Ambattur Dairy Corporation, Chennai, withbackwages and continuity of service. Hence, the award of the firstrespondent Labour Court, dated 29.4.2002, made in I.D.No.464 of1997, is invalid in the eye of law and therefore, it is liable to beset aside. 13. The learned counsel appearing for the petitioner had reliedon the following decisions in support of his contentions:13.1. In Dhampur Sugar Mills Ltd. V. B.Singh (2005(I) L.L.N.1069), the Supreme court had held that when a workman had beenappointed in terms of a scheme of daily wages, he does not deriveany legal right to be regularised in service. Completion of 240 daysof continuous service in a year may not, by itself, be a ground fordirecting regularisation, particularly, in a case when the workmanhad not been appointed in accordance with the relevant rules. 13.2.In Reserve Bank of India Vs. Gopinath Sharma andanother (2006(6) SCC 221), the Supreme Court had held that aworkman, who had not been appointed to any regular post but engagedon the basis of need of work, on day-to-day basis, had no right to https://hcservices.ecourts.gov.in/hcservices/ the post and therefore, his disengagement cannot be treated to bearbitrary.13.3. In Union of India V. Ilango (2005 (I ) LLN 834 ), aDivision Bench of this Court had held, in respect of daily ratedcasual labourers seeking regularisation on the ground that they hadput in 240 days of continuous service, within less than two years oftheir employment, there were no sanctioned posts to which theemployees could be said to have been appointed. Mere completion of240 days does not merit right to regularisation.13.4. In N.Selvan V. I.G. of Police (2005(I) L.L.N 895) aDivision Bench of this Court had held that a daily wage employee isonly a temporary employee and that he has no right to the post. 14. Per contra, the learned counsel appearing on behalf of thesecond respondent had submitted that the award of the firstrespondent Labour Court is in accordance with the provisions of lawapplicable to the case and it is valid. The award of the firstrespondent Labour Court, dated 29.4.2002, made in I.D.No.464 of1997, is based on the evidence available on record. 15. The learned counsel appearing for the second respondent hadstated that the petitioner was doing the work of loading andunloading in Ambattur and Ayanavaram diaries and has worked as anattender in the Ambattur Transport Unit. He has been employed fromthe year, 1985, on a payment of Rs.35/- per day. The Ambattur DiaryCorporation, Chennai, is managed by a Board consisting of StateGovernment Nominees and the representatives of the Ambattur DairyCorporation. It is a State Government undertaking having theRegional Office and the Branch Office at the Tamil Nadu Co-operativeMilk Producers Federation, at Chennai. The second respondent hasbeen working from the year, 1985, for more than 240 days in a year.The petitioner has been receiving the monthly salary from theAmbattur Transport Unit and the Ayanavaram Diary. Thereafter, he hadreceived fortnightly salary from the Ambattur Diary. The nature ofwork performed by the second respondent is of a permanent nature.Since the products handled by the second respondent were mostlyperishable in nature, he was asked to do the work without any break.Even though the second respondent had been performing his dutieswithout any blemish he was not given any employment from the monthof November, 1995. His identity card had been taken back and he wasterminated from service by an oral order. Therefore, the secondrespondent had approached the Labour Officer who had submitted afailure report, as the conciliation proceedings had failed. In suchcircumstances, the second respondent had been constrained to raisean industrial dispute before the first respondent Labour Court, inI.D.No.464 of 1997. 16. The learned counsel appearing for the second respondent hadrelied on the decision, of this Court, reported in HindustanPetroleum Corporation Ltd. V. The Presiding Officer, CentralGovernment Labour Court cum Industrial Tribunal (2008 (4) CTC 819), https://hcservices.ecourts.gov.in/hcservices/ to contend that the second respondent is entitled to be conferredwith the permanent status, as he had completed 480 days of servicein two years, in accordance with the Tamil Nadu IndustrialEstablishments (Conferment of Permanent Status to Workmen) Act,1981.17. The second respondent employee had examined himself as awitness and the petitioners had examined one Venugopal as theirwitness. The workman had marked two documents, the first being aserious of identity cards and the second document, which is theconciliation failure report. The management had marked 9 documentson its behalf.18. Based on the evidence available, the first respondentLabour Court had found that the second respondent was in continuousemployment with the petitioners for 240 days or more, in two yearsand therefore, he was considered to be a permanent workmen, inaccordance with the provisions of the Tamil Nadu IndustrialEstablishments (Conferment of Permanent Status to Workmen) Act,1981. The fact that the second respondent had been working with thepetitioner management, from the year 1987 to 1995, has beenaccepted. However, it is the contention of the management that thesecond respondent workman had not rendered continuous service to beeligible for permanent status. The first respondent Labour Court hadstated that when the bonus had been paid to the second respondentworkman, it would indicate his permanent status. The firstrespondent Labour Court had shifted the onus on the petitionermanagement to disprove the claim of the second respondent that hewas in continuous service for more than 240 days, in two years andthat he had attained permanent status as a workman, under thepetitioners. 19. The first respondent Labour Court had also found that noprior notice had been issued to the second respondent and no paymenthad been made in lieu of the notice. Further, no retrenchmentcompensation had been paid to him, in accordance with the provisionsof the Industrial Disputes Act, 1947. Further, it was found thatthere was no disciplinary action taken against the secondrespondent, based on which he was stopped from performing his dutiesas an employee under the petitioner management. Therefore, the firstrespondent Labour Court had come to the conclusion that the act ofthe petitioner management, issuing an oral order, stopping thesecond respondent from continuing in his employment, is contrary tolaw. In such circumstances, the first respondent Labour Court hadpassed an award, dated 29.4.2002, in I.D.No.464 of 1997, reinstatingthe second respondent in service, with backwages, continuity ofservice and other attendant benefits. 20. In view of the submissions made by the learned counselsappearing for the petitioners, as well as the second respondent andon a perusal of the records available, it is seen that the firstrespondent Labour Court had passed the award, dated 29.4.2002, inI.D.No.464 of 1997, on the ground that the second respondent had https://hcservices.ecourts.gov.in/hcservices/ worked for more than 240 days in a year, for two years, during theperiod of his employment with the petitioners and therefore, thesecond respondent is entitled to be confirmed in service, inaccordance with the provisions of the Tamil Nadu IndustrialEstablishments (Conferment of Permanent Status to Workmen) Act,1981. In the said award, dated 29.4.2002, the first respondentLabour Court had ordered the reinstatement of the second respondentin service, with back wages, continuity of service and otherattendant benefits. However, the first respondent Labour Court hasnot seen as to whether there was a permanent vacancy in a sanctionedpost to regularise the second respondent in service. Further, theRules applicable to such employment have not been considered. Therewas no occasion for the first respondent Labour Court to find out asto whether the second respondent was appointed after having beensponsored through the concerned employment exchange and as towhether he had the required educational and other qualifications forsuch employment, as held by the Supreme Court in its variousdecisions cited supra. Further, the crucial issue with regard to thejurisdiction of the Labour Court, to confer permanent status to aworkman, in view of the provisions of the Tamil Nadu IndustrialEstablishments (Conferment of Permanent Status to Workmen) Act,1981, has not been answered by the first respondent Labour Court. 21. In such circumstances, the award of the first respondentLabour Court, dated 29.4.2002, made in I.D.No.464 of 1997, is setaside and the matter is remitted back to the first respondent LabourCourt, to be decided, on merits and in accordance with law, takinginto consideration the issues noted above. The first respondentLabour Court is directed to dispose of the Industrial Dispute, inI.D.No.464 of 1997, following the due procedures established by law,after giving sufficient opportunity to the petitioners, as well asthe second respondent herein, within a period of three months fromthe date of receipt of a copy of this order. The writ petition isordered accordingly. Consequently, connected M.P is closed. Nocosts.22. The Registry is directed to send a copy of this order tothe first respondent Labour Court, expeditiously, along with therelevant records, if any, relating to the matter. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1. The Presiding Officer, 1st Additional Labour Court, Chennai-600 104. https://hcservices.ecourts.gov.in/hcservices/

2. The Record Keeper, V.R. Section, High Court, Madras.+ 1 c.c. to Mr. G. Jeremiah, Advocate. S.R.No.5450.+ 1 c.c. to Mr. S. Ravichandran, Advocate. S.R.No.5357. Order in Writ Petition No.2556 of 2003KK (CO)GSK 12.02.2009.