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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. CHANDRASEKHARAN, J.
The Managing Director, Tamil Nadu State Transport Corporation (Madurai Limited), Madurai & Others - Appellant
Versus
The Labour Inspector, Virudhunagar & Another - Respondent
W.P(MD) No. 11211 of 2013 & M.P(MD) No. 2 of 2013
Decided On : 02-09-2022
Writ Petition - Conferment of Permanent Status to Workmen - Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 - Section 3 - The court discussed the legal provisions of the Act and its applicability to the case, emphasizing the non-obstante provision of Section 3(1) and its precedence over any law or contract of service. The court also highlighted the relevance of settlements and the definition of 'workman' under the Act, and how these influenced the decision to confer permanent status on the second respondent.
Fact of the Case:
The second respondent, appointed as a Reserve Driver, sought regularization of service under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 after being involved in a fatal accident. The petitioners challenged the conferment of permanent status, arguing that the second respondent did not meet the required conditions.
Finding of the Court:
The court found that the second respondent completed 480 days of continuous service within 24 calendar months, as required by the Act, and was entitled to permanent status despite the terms of the appointment and settlements. The court also noted the absence of specific denial by the petitioners regarding the second respondent's completion of 480 days of work.
Issues: The main issue was whether the second respondent was eligible for permanent status under the Act despite the conditions of his appointment and settlements.
Ratio Decidendi: The court relied on the non-obstante provision of Section 3(1) of the Act, the definition of 'workman,' and previous judgments to uphold the conferment of permanent status on the second respondent.
Final Decision: The court dismissed the writ petition and directed the petitioner Corporation to confer permanent status on the second respondent upon completion of 720 days, in line with previous decisions.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of Constitution of India, praying to issue a Writ of Certiorari, calling for the records in Pa.Mu.No.A/2382/2012, dated 11.03.2013 on the file of the first respondent and quash the same.)
1. This Writ Petition is filed for issuance of a Writ of Certiorari, to quash the order passed in Pa.Mu.No.A/2382/2012, dated 11.03.2013 on the file of the first respondent.
2. The case of the petitioners is that the second respondent was appointed as a Reserve Driver with effect from 29.07.2008. The Reserve Driver will be made permanent, if any vacancy arises due to the retirement of permanent Drivers. The second respondent while performing the duty as a driver in a Lorry bearing No.TML-6980 caused a fatal accident. A charge memo, dated 16.03.2012 was issued to him and he was stopped from performing duty. An enquiry was ordered and the Enquiry Officer submitted his report, dated 01.12.2012 holding that the charges against the second respondent were proved. Based on the enquiry report, a show cause notice, dated 16.01.2013 was issued to the second respondent proposing the punishment of dismissal. The second respondent filed the petition before the first respondent under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 seeking to regularize the second respondent's service with effect from 31.12.2009, the date on which, the second respondent completed 480 days of service within 24 calendar months. The first respondent has passed an order in Pa.Mu.No.A/2382/2012, dated 11.03.2013 to regularize the second respondent's service with effect from 31.12.2009, which is against the law. Therefore, the present writ petition.
3. The learned Additional Advocate General appearing for the petitioners submitted that the second respondent was appointed only as a Reserve Driver. As per his appointment order, dated 29.07.2008, he is liable to be terminated without any prior notice, if his service is not satisfactory. He would be made permanent as and when the vacancy arises on the basis of seniority and efficiency. Only on these conditions, his appointment was given. Having accepted the appointment with these conditions, when he was served only as a Reserve Driver, the petitioner cannot claim permanent status. Not only that, he involved in a fatal accident and the enquiry into the charges on the fatal accident resulted in proving the charges. When the show cause notice was given for imposing punishment, he filed the petition before the Labour Officer seeking conferment of permanent status. The Labour Officer had wrongly allowed the same without properly appreciating the factual and legal position. There is no evidence produced by the second respondent before the Labour Officer to show that he served for 480 days in 24 calendar months. No oral evidence was also produced. Without examining any witness, especially, the second respondent and without producing any documents in support of the claim for 480 days of service, allowing the petition and conferring permanent status, is totally illegal. He further submitted that Section 5 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 requires the Labour Inspector to verify the records. However, the order passed without verification is illegal and thus, the order is liable to be set aside.
4. Per contra, the learned counsel for the second respondent submitted that the Reserve Driver is performing the same work of regular Driver. The definition of 'workman' does not make any difference between regular and temporary workman. Owing to the settlement, dated 13.04.2015 and 04.01.2018, the Transport Corporation is entitled to appoint Reserve Driver as and when vacancy arises. These settlements are not applicable to the second respondent for the reason that the second respondent was appointed in 2008. The second respondent completed 480 days of continuous service in tw
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