The absence of an employer-employee relationship at the time of application under the Tamil Nadu Shops and Establishments Act renders the claim for permanent status unsustainable.

ORDER :

(M. DHANDAPANI, J.)

The petitioner has filed this writ petition seeking issuance of Writ of Certiorari calling for records leading to the order of the first respondent vide No.A/1122 of 2014, dated 23.03.2015 and quash the same.

2.The case of the petitioner is that the petitioner is in the business of transporting goods and parcels across India. In the State of Tamil Nadu, the company has split its operations into 7 controlling offices, namely, Coimbatore, Trichy, Madurai, Salem, Madras and Palayamkottai and more than 1200 persons are employed and the present litigation pertains to Salem controlling office. In the year 2010, the union representing the permanent workmen submitted a charter of demands with regard to wages and other service conditions of the employees working in the petitioner establishment and the Management settled the demands of permanent workmen. Thereafter the union raised a frivolous claim with the first respondent that the respondents 2 to 4 also should be made permanent and the Management made it clear that there was no requirement for a mechanic or body builder on full time basis.

3.The further case of the petitioner is that the primary activity of the petitioner company was only transportation of goods and parcels and the maintenance of vehicles do not require a full time employee, however, the union was insisting on the conferment of permanent status to respondents 2 to 4. The Management informed that the respondents 2 to 4 will be provided employment in other locations namely, Mani at Coimbatore, Ganesan at Chennai and Sankar at Bangalore, however, the respondents 2 to 4 did not report for work at the places of posting. On 31.08.2010, the petitioner sent a communication to respondents 2 to 4 that they are not reporting for work and if they are interested in regular job, they must report immediately at the locations allotted to them, however, they did not report for work and the union raised dispute under Section 2k of the Industrial Disputes Act , seeking permanency of respondents 2 to 4. The petitioner filed its reply in conciliation stating that the respondents 2 to 4 had not worked for more than 240 days in a year or 480 days in a period of 24 months and the Government of Tamil Nadu passed G.O.Ms.No.138 dated 22.03.2013 declining to refer the demand for permanency and indicating to file case seeking remedy provided under the Tamil Nadu Shops and Establishments (Conferment of Permanent Status) Act, 1981 , if the workmen so desired.

4.The further case of the petitioner is that thereafter the respondents 2 to 4 approached the first respondent by filing No.A/1122 of 2014 and the first respondent passed the impugned order directing the petitioner to confer permanent status to respondents 2 to 4 from 01.01.2005. Challenging the same, the petitioner has filed this writ petition.

5.The learned counsel appearing for the petitioner submitted that the respondents 2 to 4 stopped reporting for work from 15.08.2010 and there was no employer and employee relationship between the petitioner and the respondents 2 to 4 at the relevant point of time when the respondents 2 to 4 filed petition under Section 3 of the Tamil Nadu Shops and Establishments (Conferment of Permanent Status) Act, 1981 , however, the first respondent without considering the same, passed the impugned order directing the petitioner to confer permanent status to respondents 2 to 4 from 01.01.2005, which is not sustainable one. In support of his contentions, the learned counsel relied upon the decision of the Hon'ble Division Bench of this Court reported in 2007 (1) L.L.N. 302 [ S.Sivakumar and others Vs. Deputy Inspector of Factories, Chennai and another ]

6.Per contra, the learned counsel appearing for the respondents 2 to 4 submitted that the respondents 2 to 4 were orally terminated from service on 15.08.2010 and the oral termination is not binding on the respondents 2 to 4. The learned counsel further submitted that prior to the respondents