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The Workmen' S Compensation Act, 1923
Section 2 in The Workmen' S Compensation Act, 1923
The Industrial Disputes Act, 1947
Section 3 in The Workmen' S Compensation Act, 1923
The Tamil Nadu Legislative Council (Abolition) Act, 1986.

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Madras High Court
S.Sundar vs The State Of Tamil Nadu on 22 December, 2011

DATED: 22.12.2011

CORAM

THE HONOURABLE MR.JUSTICE D.HARI PARANTHAMAN

W.P.Nos.7070, 5923 and 5924 of 2006 (T)

O.A.Nos.1351, 1350 and 1359 of 2002

S.Sundar ... Petitioner

in W.P.No.7070/2006

B.Vickraman ... Petitioner

in W.P.No.5923/2006

P.Denson ... Petitioner

in W.P.No.5924/2006

Vs.

1.The State of Tamil Nadu,

Rep. by its Secretary to Government,

Environment and Forest Department,

Secretariat,

Fort St. George,

Chennai  600 009.

2.The Principal Chief Conservator of Forests,

Panagal Building,

Saidapet,

Chennai  600 015.

3.The District Forest Officer,

Kanyakumari Division,

Nagarkoil,

K.K.District  629 001.

4.Arasu Rubber Corporation Limited,

Rep. by its Managing Director,

Vadaseri, Nagercoil. ... Respondents in all petitions

PRAYER IN ALL PETITIONS: Writ Petitions came to be numbered by transfer of O.A.Nos.1351, 1350 and 1359 of 2002 on the file of the Tamil Nadu Administrative Tribunal praying to direct the respondents to regularise the services of the petitioners as Forest Watchers in the Forest Department with effect from the date of their appointments dated 18.11.1972, 01.08.1976 and 15.07.1977, respectively.

For Petitioner

in both petitions :Mr.S.Mahimai Raj

For Respondents

in both petitions :Mr.N.Inbanathan, GA (F)

COMMON ORDER

The petitioner-S.Sundar, in W.P.No.7070 of 2006 (O.A.No.1351 of 2002), joined the services in the Tamil Nadu Forest Department on 18.11.1972. The petitioner-B.Vickraman, in W.P.No.5923 of 2006 (O.A.No.1350 of 2002), joined the services in the Tamil Nadu Forest Department on 01.08.1976. The petitioner-P.Denson, in W.P.No.5924 of 2006 (O.A.No.1359 of 2002), joined the services in the Tamil Nadu Forest Department on 15.07.1977. They were on daily wages in the Government Rubber Plantations, which was under the control of Tamil Nadu Forest Department. The Government Rubber Plantations became Arasu Rubber Corporation Limited (in short 'Corporation'), a company fully owned by the Government of Tamil Nadu, with effect from 01.10.1984. The petitioners are working in the said Corporation without interruption. In the said Corporation, apart from the petitioners, others, namely, Tappers, Field Workers, Factory Workers and Protection Workers, are also working on daily wage basis and nobody is regularised.

2. The petitioners filed O.A.Nos.1351, 1350 and 1359 of 2002, before the Tribunal, seeking a direction to the respondents to regularise the services of the petitioners as Forest Watchers in the Forest Department with effect from the date of their appointments. The Corporation was not made as a party in the original applications filed by them. On abolition of the Tribunal, the same were transferred to the file of this Court and re-numbered as W.P.Nos.7070, 5923 and 5924 of 2006.

3. As the Corporation being the necessary party, the petitioners filed impleading petitions and thereafter, those petitions were allowed by this Court on 08.11.2011.

4. The Corporation have filed common counter affidavit in all the writ petitions. The other respondents have not filed any counter affidavit.

5. In the common counter affidavit, the Corporation has admitted the employment of the petitioners on daily wages to protect the rubber plantations and not as Forest Watchers in the Forest Department. It is further stated that the petitioners are given benefits under various legislation, such as, Plantations Labour Act, 1951, the Industrial Employment (National and Festival Holidays) Act, 1981, the Employees Provident Fund and Miscellaneous Provisions Act, 1952, and the Payment of Bonus Act, 1965. It is stated that the petitioners are paid minimum wages as notified by the Government of Tamil Nadu under the Minimum Wages Act.

6. It is further stated that if the petitioners are given monthly salary, the same would result in absenteeism and would affect the production of rubber. It is also stated that no educational qualification is required for daily wage workers and the essential qualification is only to read and write Tamil. Finally, it is stated that the petitioners are covered by the Industrial Dispute Act and if there is any grievance, they can seek appropriate remedy under the Industrial Disputes Act.

7. Heard both sides.

8. The petitioners joined in 1970s on daily Wages in the Government Rubber Plantations. The Government Rubber Plantations were under the control of Forest Department. The Corporation was established as Public Sector Undertaking, fully owned by Government of Tamil Nadu, and the same came into existence on 01.10.1984, and before the Corporation came into existence, the entire units were under the control of Forest Department, under the name and style of Government Rubber Plantations. As stated above, the petitioners are in employment for more than 30 years. But, none of them are granted permanent status/regularisation.

9. The Corporation is an Industrial Establishment as per Section 2(3) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (in short 'Permanent Status to Workmen Act'). Section 2(3) of the Permanent Status to Workmen Act defines the Industrial Establishment. Sections 2 and 3 of the Permanent Status to Workmen Act are extracted hereunder:

"2. Definitions.--- In this Act, unless the context otherwise requires, --

(1) "employer" means the owner of an industrial establishment to which this Act for the time being applies and includes-- (a) in a factory, any person named under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 (Central Act LXIII of 1948) as manager of the factories; (b) in any industrial establishment under the control of any department of any State Government in India, the authority appointed by such State Government in this behalf, or where no authority is so appointed, the head of the department; (c) in any other industrial establishment, any person responsible to the owner for the supervision and control of the industrial establishment; (2) "Government" means the State Government;

(3) "industrial establishment" means--

(a) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (Central Act LXIII of 1948) or any place which is deemed to be a factory under sub-section (2) of section 85 of that Act; or (b) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (Central Act XLIX of 1951); or (c) a motor transport undertaking as defined in clause (g) of seciton 2 of the Motor Transport Workers Act, 1961 (Central Act 27 of 1961); or (d) a beedi industrial premises as defined in clause (i) of section 2 of the Beedi and Cigar Workers ( Conditions of Employment) Act, 1966 (Central Act 32 of 1966); or (e) an establishment as defined in clause (6) of section 2 of the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947); or (f) a catering establishment as defined in clause (1) of section 2 of the Tamil Nadu Catering Establishment Act, 1958 (Tamil Nadu Act XIII of 1958); or (g) any other establishment which the Government may, by notification, declare to be an industrial establishment for the purpose of this Act; (4) "Workman" means any person employed in any industrial establishment to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied (and includes a badli workman), but does not include any such person, --

(a) who is employed in the police service or as an officer or other employee of a prison; or

(b) who is employed mainly in managerial or administrative capacity; or

(c) who, being employed in a supervisory capacity, [draws wages exceeding three thousand and five hundred rupees per mensem] or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. [Explanation.-- "Badli workman" a workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment.]

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 eight 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 authorise leave or an accident or a strike, which is not illegal, or a lock-our or a cessation of work which is not due to any fault on the part of the workman. Explanation I.-- [For the purpose of computing the continuous service referred to in sub-section (1) and (2), a workman shall be deemed to be in continuous service during 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 XX of 1946) or under any other law 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. [Explanation II. -- For the purposes of this section, 'law' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act.]"

10. A plantation, as defnied in Plantations labour Act, is covered under Section 2(3)(b) of the Permanent Status to Workmen Act. It is admitted by the fourth respondent in their counter that the the Plantations Labour Act is applicable to them, and the the fourth respondent is granting benefits under the said Act.

11. If the industrial establishment is covered by the aforesaid Act, as per Section 3 of the Permanent Status to Workmen Act, every workman, who is in continuous service for a period of 480 days in a period of 24 calendar months, shall be made permanent. The Corporation has admitted that the petitioners are in continuous service for more than 30 years. Therefore, the petitioners are entitled to regularisation as per Section 3 of the Permanent Status to Workmen Act.

12. The judgment relied on by the learned counsel for the respondents in Indian Drugs & Pharmaceuticals Limited v. Workmen, Indian Drugs & Pharmaceuticals Limted ((2007) 1 SCC 408), is not applicable to the facts of the present cases.

13. This Court in S.Vijayalakshmi v. Tamil Nadu Water Supply and Drainate Board, Chennai, (2005 (3) L.L.N.706) has held that a workman shall be deemed to be permanent on completion of 480 days of service. Para 4 of the said order is extracted hereunder:- "4. A bare perusal of the aforesaid provision makes it clear that such provision casts an obligation on the employer to confer permanent status on an employee who has completed 480 days work in course of two years. It is of course true that during the life time of the husband of the petitioner, no such permanent status was actually conferred by any order of the management. It is also true that jurisdiction has been conferred on the inspector to conduct enquiry if necessary to find out whether an employee has completed 480 days or not. However, when facts are not in dispute, merely because no such enquiry had been conducted by the inspector, the petitioner's husband cannot be denied the benefits of the Act. In view of the mandatory nature of the provision, it shall be taken that an employee who had completed 480 days in a period of two years was permanent."

14. In this case also, the facts are not in dispute and in the counter, the Corporation has not disputed about the employment of the petitioners. Hence, the petitioners are deemed to have been made permanent.

15. The fourth respondent has stated that the petitioners can seek remedy under the Industrial Disputes Act. In my view, the petitioners could not seek remedy under the Industrial Disputes Act. Only in the case of non-employment, individual workman could approach the Labour Court seeking redressal of his/her grievance. Hence, the averment of the fourth respondent about the alternate remedy under the ID Act has no substance.

16. Of course, the petitioners could approach the authority under the Permanent Status to Workmen Act. However, as the facts are admitted, there is no need for the workmen/petitioners to approach the authority under the Permanent Status to Workmen Act. Furthermore, the matter is pending for adjudication for about a decade and that the petitioners have rendered about 30 years of service. Hence, it is a fit case, wherein this Court could issue appropriate direction to the fourth respondent to make them permanent.

17. Section 2(ra) of the Industrial Disputes Act defines the unfair labour practice. As per Section 2(ra), unfair labour practice means any of the practices specified in the fifth Schedule of the Industrial Disputes Act. Clause 10 of the fifth Schedule of the Industrial Disputes Act states that employing workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen, is unfair labour practice on the part of the employers.

18. It is a classical case, wherein the petitioners are employed for more than 30 years. The fourth respondent has stated in para 10 of counter affidavit that if monthly salary is paid, the same would result in absenteeism and would affect the production of rubber.

19. The Corporation being the State under Article 12 of the Constitution, they shall behave like a model employer and shall not commit unfair labour practice, which is prohibited under Section 25T of the Industrial Disputes Act.

20. At this juncture, it is relevant to note Article 42 of the Constitution of India, which states that the State shall make provision for securing just and humane conditions of work. Article 43 states that the State shall endeavour to secure, by suitable legislation, to all workers conditions of work ensuring a decent standard of life.

21. The Permanent Status Act shall be read along with Articles 42 and 43 of the Constitution. Reading so, the petitioners are entitled to regularisation of their services. The Corporation shall make the petitioners permanent in the last grade of service and shall grant scale of pay and other benefits, that are applicable to the last grade, in their Corporation. The Corporation is directed to regularise the services of the petitioners on completion of 480 days of service with all monetary benefits, by granting scale of pay and other benefits applicable to the last grade in their Corporation. The Corporation is directed to complete the aforesaid exercise within a period of six weeks from the date of receipt of a copy of this order.

22. The writ petitions are disposed of in the above terms. No Costs.

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To

1.The State of Tamil Nadu,

Rep. by its Secretary to Government,

Environment and Forest Department,

Secretariat, Fort St. George,

Chennai  600 009.

2.The Principal Chief Conservator of Forests,

Panagal Building,

Saidapet, Chennai  600 015.

3.The District Forest Officer,

Kanyakumari Division,

Nagarkoil,

K.K.District  629 001.

4.Arasu Rubber Corporation Limited,

Rep. by its Managing Director,

Vadaseri,

Nagercoil