Back
2007 Supreme(Mad) 3170
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P.D. DINAKARAN
Thamizhaga Kootturavu Sanga
Versus
Madurai District Cooperative Milk Producers Union Ltd., & Others
W.P.Nos.5962 of 1997 and 32916 & 35143 of 2003
Decided On : 01-10-2007
For the Petitioner:R. Vaigai, Advocate. For the Respondent:R1 R. Balasubramanian, Advocate.
The statutory right of workmen to be made permanent under Section 3(1) of the Act prevails over other laws, and inspectors have essential powers under Section 5 for implementing the Act.
Headnote:
Mandamus - Employment Dispute - Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, Section 3, Section 5 - The court discussed the provisions of Section 3 and Section 5 of the Act, emphasizing the statutory right of workmen to be made permanent after a specified period of continuous service. The court also highlighted the powers and duties of inspectors under Section 5, empowering them to take necessary actions for implementing the Act.
Fact of the Case:
41 employees sought permanent status and consequential benefits as per orders issued by the Inspector of Factories under the Act. The management contested the employees' eligibility based on employment exchange and cadre strength.
Finding of the Court:
The court found that the employees were entitled to permanent status under Section 3(1) of the Act, emphasizing the non-obstante nature of the provision and the powers of inspectors under Section 5. The management was directed to confer permanent status and provide consequential benefits to the employees.
Issues: Dispute over the entitlement of employees to permanent status and consequential benefits under the Act.
Ratio Decidendi: The court held that the employees were entitled to the benefits under Section 3(1) of the Act, and the powers of inspectors under Section 5 were crucial for implementing the Act.
Final Decision: Writ Petition No.5962 of 1997 allowed, directing the management to confer permanent status and provide consequential benefits to the employees. Writ Petition Nos.32916 and 35143 of 2003 dismissed.
For the purpose of convenience, parties are referred to as per their rank in Writ Petition No.5962 of 1997.
2. While in Writ Petition No.5962 of 1997, 41 employees working under the first respondent Management seek a writ of Mandamus directing the first and second respondents to treat the employees mentioned in the orders dated 27. 1996, 30.9.1996 and 112. 1996 issued by the third respondent as permanent with all consequential benefits including arrears of salary and other allowance, in Writ Petition Nos.32916 and 35143 of 2003, the first respondent Management seeks a writ of Certiorari to call for the records of the third respondent - Inspector of Factories made in his proceedings No.E2348 of 1996 dated 27. 1996 and 30.9.1996 and quash the same.
3. 1. It is not in dispute that the third respondent, Inspector of Factories, an authority appointed under Section 4 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, (for brevity, "the Act"), by exercising the powers conferred under Section 3 read with Section 5 of the Act, pursuant to the inspection made on 27. 1996, passed the impugned orders dated 27. 1996, 30.9.1996 and 112. 1996, directing the first respondent to confer permanent status to 20, 17 and 4 employees respectively, working under the first respondent-Management.
2. Since the orders of the third respondent dated 27. 1996, 30.9.1996 and 112. 1996 had not been complied with, the said 41 employees filed Writ Petition No.5962 of 1997 on the ground that the non compliance of the orders of the third respondent is contrary to the spirit and scope of Section 3 of the Act.
4. Ms.Vaigai, learned counsel appearing for the employees contends that as per G.O.Ms.No.86, Cooperation, Food and Consumer Protection Department dated 13. 2001, 41 employees are entitled for regularisation. In this regard, she relied upon the decision of a Division Bench of this Court in Justine, L. v. The Registrar of Cooperative Societies [2002 (4) CTC 385], wherein, it is held as follows:
19 (i) that G.O.Ms.No.86, Cooperation, Food and Consumer Protection Department, dated 13. 2001, has got the effect of only authorising the regularisation of the employees recruited by the cooperative societies for the period from 7. 1980 to 13. 2001 exempting the intervention of employment exchange.
(ii) that G.O.Ms.No.86, Cooperation, Food and Consumer Protection Department, dated 13. 2001, shall not operate for regularisation of any employee recruited by the cooperative societies in violation of sub-Rule(1) of Rule 149 of the Tamil Nadu Cooperative Societies Rules, as amended by G.O.Ms.No.212, Cooperation, Food and Consumer Protection Department, dated 7. 1995.
5. On the other hand, Mr.R.Balasubramanian, learned counsel appearing for the Management contends that the said 41 employees cannot be conferred permanent status as they were not employed through the employment exchange, that they are excess to the cadre strength of the first respondent Management and that the third respondent had passed the orders of confirmation without conducting any enquiry on the issue.
6. We have given our careful consideration to the submissions of both sides.
7. 1. As per the scheme of the Act, on a mere representation by the workman to the industrial establishment or the employer, as the case may be, seeking the above statutory right conferred under Section 3 of the Act, such industrial establishment or employer shall provide the benefits of Section 3 of the Act to the workman, otherwise, such employer shall have to face the prosecution as provided under Section 6 of the Act.
7. 2. In this regard, I am obliged to refer Sections 3 and 5 of the Act, which read as under.
"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 eight days in a period of twenty four calendar months in an ind
