Judgment

K. JAOANNATHA SHETTY, J.

(1) THE Tamil Nadu government passed an Act called the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 ("the Act") which came into force on 1/01/1982. The Act was to confer permanent status to workmen in various industrial establishments who have put in continuous service for a period of 480 days in a period of 24 calendar months in an industrial establishment. S. 3 is a crucial provision in the Act. It reads as under:

"S. 3. Conferment of permanent status to workmen. (1) Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months in an industrial establishment shall be made permanent.

(2) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lockout or on account of non-employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer, or a cessation of work which is not due to any fault on the part of the workman.

EXPLANATION: For the purposes of this S. the number of tlays on which a workman has worked in an industrial establishment shall include the days on which-

(I) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act 20 of 1946) or under any other laws applicable to the industrial establishment;

(II) he has been on leave with full wages, earned in the previous years;

(III) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(IV) in the case of a female, she has been on maternity leave, so, however, that the total period of such maternity leave does not exceed twelve weeks."

(2) THE constitutional validity of the Act was challenged in a batch of writ petitions by various industrial establishments before the High court of Madras. The High court has allowed the writ petitions in part holding, inter alia, as follows:

"THE Explanation to S. 3 is incapable of enforcement and must therefore be held to be redundant.

(2) The provisions of S. 3(2) of the Act are valid except that the clause or on account of non-employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer is void on the ground that it amounts to an unreasonable restriction on the right of the employer.

(3) An apprentice or a badli worker could not be included in the workman referred to in S. 3(1) and (2) of the Act, and they will, therefore, be not entitled to the benefit of S. 3.

(4) The Act will not supersede a settlement between the workers and the employer insofar as it deals with the subject of conferment of permanent status to workmen.

(5) The Act cannot be held to be retrospective in character."

(3) ON 7/07/1985, the State of Tamil Nadu preferred this appeal challenging the judgment of the High court. During the pendency of the appeal, the State also amended the principal Act in order to obviate the practical difficulties in implementing the provisions of the Act by reason of the judgment of the High court.

(4) THE relevant portion of the Amending Act 44 of 1985 reads as under:

"2. Amendment of S. 3, Tamil Nadu Act 46 of 1981. In S. 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981) (hereinafter referred to as the principal Act)-

(1) in the Explanation, for the opening portion beginning with the w