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2012 Supreme(Mad) 486
High Court of Judicature at Madras
VINOD K. SHARMA
The Management of Hanil Tube India Pvt. Ltd. Rep. by its Asst. General Manager – Finance
Versus
The Competent Authority & Inspector of Factories & Others
W.P.No.24208 of 2011 & M.P.No.1 of 2011
Decided on: 01-02-2012
For the Petitioner:S. Raveendran for M/s. T.S. Gopalan & Co., Advocates.
For the Respondents:Balan Haridas, Advocate.
The statutory right under Sec. 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981, can only be declared if there exists a relationship of Master and servant, and the respondent No.1 cannot declare or grant permanent status to a workman who ceased to be an employee.
Headnote:
Certiorari - Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981 - Sec. 3 - [Matter of Conferment of Permanent Status] - [Sec. 3 of the Act] - The judgment discusses the application of Sec. 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981, in the context of conferring permanent status to workmen. The court analyzed the evidence and admissions of the workmen to determine whether the workmen were engaged as trainees/probationers or were actually doing regular work. The court also considered the jurisdiction of the respondent No.1 to adjudicate the question of termination of service and the perversity of the findings. The court ultimately set aside the impugned order, allowing the Labour Court to form an independent opinion based on the evidence presented by the workmen.
Fact of the Case:
The petitioner, management of Hanil Tube India Private Ltd., sought to quash the order dated 26.9.2011 passed by the respondent No.1 under Sec. 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981. The workmen were engaged as trainees and probationers, and the respondents claimed conferment of permanent status after working for more than four years in direct production activities. The petitioner contested the application, arguing that the period of apprentice/training should not be counted for calculating the days of work for conferment of permanent status.
Finding of the Court:
The court found that the impugned order was without jurisdiction and the findings recorded by the respondent No.1 were perverse, as they were outcome of misreading of evidence. The court also held that the statutory right under Sec. 3 can only be declared if there exists a relationship of Master and servant, and the respondent No.1 cannot declare or grant permanent status to a workman who ceased to be an employee. The court ultimately set aside the impugned order, allowing the Labour Court to form an independent opinion based on the evidence presented by the workmen.
Issues: The issues revolved around the application of Sec. 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981, the jurisdiction of the respondent No.1 to adjudicate the question of termination of service, and the perversity of the findings recorded by the respondent No.1.
Ratio Decidendi: The court held that the statutory right under Sec. 3 can only be declared if there exists a relationship of Master and servant, and the respondent No.1 cannot declare or grant permanent status to a workman who ceased to be an employee. The court ultimately set aside the impugned order, allowing the Labour Court to form an independent opinion based on the evidence presented by the workmen.
Final Decision: The writ petition was allowed, and the impugned order was set aside. The Labour Court was allowed to form an independent opinion based on the evidence presented by the workmen.
1. The petitioner management of Hanil Tube India Private Ltd. has invoked the extraordinary writ jurisdiction of this Court with the prayer for issuance of writ in the nature of Certiorari, to quash the order dated 26.9.2011 passed by the respondent No.1 in exercise of jurisdiction under Sec. 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981.
2. The petitioner is engaged in the manufacture of breaks and fuel tubes for four wheelers. The products of the petitioner are mainly supplied to Hyundai Motor India Ltd. for use in high quality Cars being manufactured by it. The machines used in manufacturing activities are also high precision and can be operated by an employee only after he undergoes intensive "on the job training" for a period not less than three years.
3. The workmen employed by the petitioner are classified as apprentices, trainees, probationers and permanent workmen. Permanent workmen are one who undergo intensive training successfully and keeping in view the satisfactory performance during the probationary period are confirmed in service.
4. It is pleaded in the affidavit, that some of employees after completion of training are not appointed as probationer either due to unsatisfactory performance during the training or due to lack of vacancy. Similarly, a probationer can be either confirmed in service or terminated from service based on his work and conduct during the period of probation.
5. The submission of the petitioner is that the respondents/ workmen were trainees engaged by the petitioner and after successful completion of training, were appointed as probationers.
6. The respondents 5, 6 and 7 were confirmed as permanent workers, whereas respondents 2, 3, 4 and 8 to 15 after completion of training, were given orders of appointment, on probation for six months and it was during the period of probation that their services were terminated.
7. The stand of the petitioner is that before the termination of services of the respondents/workmen, they filed an application before the respondent No.1 claiming conferment of permanent status, on the ground that they had worked for more than four years in direct production activities.
8. The stand of the respondents in the application was that the act of the petitioner calling them as trainees was not genuine and therefore, they be granted permanent status reckoning the appointment from very first day of their engagement in service.
9. The application was contested by the petitioner, on the ground that training imparted to the respondents/workmen was in terms of the Standing Orders applicable to the petitioner, and that recruiting process was continuous process in the petitioner's factory. The positive stand of the petitioner was that all the permanent workmen had undergone training like the respondents.
10. The stand of the petitioner before the first respondent was that termination of the respondents/workmen while they were engaged as trainees or employed as probationers could not be questioned before the first respondent, specially when industrial disputes challenging their non employment, was pending adjudication.
11. The stand of the petitioner was also that period of training could not be counted as service period and that the respondents/workmen had not put in 480 days of service in 24 calendar months. Furthermore, that in respect of the respondents 2, 3, 4 and 8 to 15, they were already given the orders of appointment as trainee and the terms of appointment were accepted by the respondents.
12. The respondent No.1 by way of impugned order accepted the application moved by the respondents No.2 to 15 and directed the petitioner to grant permanent status to 23 applicants with effect from the date on which they completed 480 days of continuous service since the date of initial appointment.
13. In deciding the application, the learned Inspector of Factories, the respondent No.1 came to the conclusion that the crucial
