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Judgment
M. Venugopal, J.—The Petitioner has focussed the present Writ of Mandamus praying originally before a Learned single Judge of this Court
for directing the Respondents to pay her family pension, family benefit fund and other terminal benefits including gratuity and also to provide
employment to her on compassionate ground. It is not in dispute that the petitioner is the wife of the deceased Raju, who worked as a Contract
Labour in the Civil Section of Power House at Mettur Dam under various Contractors from 1.12.1991 to 30.4.1999. Also that he worked as a
Helper in Tamilnadu Electricity Board till his demise on 23.11.2003. The Tamilnadu Electricity Board had not passed orders to make the
petitioner''s husband as a permanent employee. Subsequently, the Petitioner projected a claim for the retirement benefits on the basis that her
deceased husband Raju ought to be treated as a permanent employee of Tamilnadu Electricity Board and also made a claim for Compassionate
Appointment to her daughter Valarmathi.
The Respondents/Tamilnadu Electricity Board resisted the claim of the Petitioner by contending that her husband Raju was not a permanent
employee of the Tamilnadu Electricity Board and therefore, the benefits of the Tamil Nadu Industrial Establishments (Conferment of Permanent
Status to Workmen) Act, 1981 were not conferred. As such, the Petitioner is not entitled to claim the relief sought for in the writ petition.
Furthermore, it is the stand of the Respondents/Tamilnadu Electricity Board that the deceased Raju had not satisfied the ingredients of the
aforesaid Act in order to claim permanency.
When the writ petition was taken up for arguments on 8.2.2012, the learned single Judge during the course of arguments entertained a doubt
about the correctness of the view taken by another Learned single Judge of this Court in the decision of S. Vijayalakshmi Vs. Tamil Nadu Water
Supply and Drainage Board, wherein in paragraphs 4 and 5, it is held as follows:
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.
This view receives considerable support from the decision in S. Gandhimathi v. Deputy Registrar of Cooperative Society (MILK) Tirunelveli and
Others (2003) 3 LLN 743 : LNIND 2003 MAD 594
Once it is held that the deceased employee was in law entitled to the benefit of acquisition of permanent status, any consequential benefit cannot
be denied to the widow on death of such person or merely because during the life time of the employee no such permanency had been ""actually
conferred.
Therefore, the Learned single Judge, during the course of hearing of the Writ Petition, opined that for considering the public importance involved, it
would be better that the said question is to be examined by a Larger Bench and framed the following question for reference.
Whether a workman, who has completed 480 days of continuous service in a period of 24 calendar months, would become automatically a
permanent employee under the employer or he will become a permanent employee only on conferment of permanent status either by the employer
on his own or on a direction given by a competent authority under the Act
Accordingly, the Registry was directed to place the papers before the Hon''ble Chief Justice of this Court to consider the matter for constituting a
larger Bench.
In pursuance of the directions issued by the Learned single Judge in W.P. No. 5980 of 2004 on 8.2.2012, the Registrar (Judicial) of this Court
put up a Note before the Hon''ble Chief Justice as to constitution of the Hon''ble Division Bench and the Hon''ble Chief Justice on 28.2.2012 had
accordingly constituted this Division Bench and the Writ Petition was posted before this Court.
The case of the Petitioner is that her husband Raju (since deceased) worked as a Contract Labour in the Civil Section of Power House at
Mettur Dam under different contractors during the period from 1.12.1991 to 30.4.1999. He was absorbed by the Respondents in the Tamilnadu
Electricity Board as a Helper from 1.5.1999. He died on 23.11.2003. The Tamilnadu Electricity Board employed thousands of workmen as
Contractor Labourers. According to the Petitioner, her husband was directly employed by the Tamilnadu Electricity Board from 1.5.1999.
The Hon''ble Supreme Court appointed a commission headed by the Hon''ble Mr. Justice Khalid, (Retired Judge of Supreme Court) to look
into the aspect of absorption of Contract Labourers and pursuant to the order of the said Commission, 14575 workmen were absorbed into the
service of the Tamilnadu Electricity Board.
Subsequently, thousands of workmen were continued to be employed as Contract Labourers in the Tamilnadu Electricity Board. According to
the petitioner, the Hon''ble Chief Minister of Tamilnadu Government announced in the Legislative Assembly that contract system would be
abolished in the generation side of Tamilnadu Electricity Board and B.P. No. 17 dated 29.4.1999 was issued absorbing contract labourers
employed in all the thermal power stations who were on employment as on 5.1.1998. Similarly, B.P. 22, dated 14.5.1999 was issued for
absorption of contract workmen employed in Hydro Generation Stations.
The plea of the Petitioner is that by virtue of B.P. No. 22 dated 14.5.1999 of the Tamilnadu Electricity Board, her husband Raju (Contract
Labour later Deceased) became a direct Employee of the Tamilnadu Electricity Board from 1.5.1999 and he was identified as one of the Contract
Labourers employed as on 1.5.1998 eligible to be absorbed from 1.5.1999 and the Selection Committee constituted pursuant to the B.P. 22
dated 14.5.1999 directed the absorption of her husband as a Helper in the Tamilnadu Electricity Board. Unfortunately, the petitioner''s husband
Raju committed suicide on 23.11.2003 (during his employment with the Tamilnadu Electricity Board from 1.5.1999). He was directly employed
by the Tamilnadu Electricity Board. The reason for her husband''s suicide is due to elopement of her elder daughter with another person. He left
behind him, his wife (the petitioner), two daughters and his mother. The petitioner''s family had no source of livelihood except the income of her
deceased husband. She requested the respondents to pay her family pension and other terminal benefits including Gratuity and also requested to
provide for a compassionate appointment. She submitted written representations dated 8.12.2003 and 8.1.2004 to the respondents to pay her
family pension and provide her the compassionate appointment. However, the respondents had not sent any reply. Therefore, she was constrained
to file the present writ petition.
The Respondents/Tamilnadu Electricity Board contend that till the death of petitioner''s husband, he was not included as a Permanent Employee
of the Board to get the benefit of compassionate appointment and further the question providing compassionate appointment to the petitioner does
not arise because her husband worked under contract basis. Moreover, without following the procedure prescribed relating to the employees of
TANGEDCO, she could not be provided with an employment. That apart, her husband was not entitled to be absorbed in regular service. As
such, the Petitioner''s claim for compassionate appointment is not maintainable in law.
The Respondents/Tamilnadu Electricity Board pleaded that the scheme of employment assistance is available only for employees of the Board
and as per B.P.Ms. (FB) No. 46 (Adm. Branch) dated 13.10.1995, employment assistance would be provided to dependants of the deceased
employee of the Tamilnadu Electricity Board who died in harness and this scheme is not available to the contract labourers, who are not the
employees of the Board. In short, it is the stand of the Respondents that there is no provision in the Tamilnadu Electricity Board to consider the
application of the Petitioner.
The respondents, in their Additional Counter dated 23.4.2012, had averred that based on the demands from various Unions and Individuals,
the Tamilnadu Electricity Board decided to identify the contract labourers engaged by the contractors to execute the Tamilnadu Electricity Board
works in the Hydro and Gas Turbine generating stations fixing the base date as 5.1.1998. A list of 198 contract labourers were prepared as per
the details furnished by the contractors, Contract Labourers and the Assistant Engineers/Junior Engineers and they were identified.
In the said list, the Petitioner''s husband''s name S. Raju S/o. Sundaram was in Sl. No. 15. Added further, as per Permanent B.P. (FB) No. 22
(Secretariat Branch of the Tamilnadu Electricity Board) dated 14.5.1999, 198 number of contract labourers engaged in Erode Generation Circle
was announced on 12.7.1999; a Committee comprising of Assistant Administration Officer, Executive Engineer/Power Houses/Mettur and the
Superintending Engineer, Erode Generation Circle scrutinised the list of the aforesaid 198 contract labourers and arrived at the list of 185 contract
labourers deleting 13 numbers of them as below:
i. Those who had worked for less than 480 days : 11 nos
ii. Involved in criminal case: 1 no
iii. Not working as on 5.1.1998:1 no
In the list of 185, the Petitioner''s husband S. Raju was identified and he figured in Sl. No. 109.
Continuing further, in B.P. (ch) No. 161 (Adm. Branch) dated 27.7.1998 of the Tamilnadu Electricity Board, orders were issued to pay daily
wages at the PWD schedule of rates with effect from 1.7.1998 to the contract labourers. Since there were no official records to support the
number of days worked by the contract labourers, because of representations and objections to the seniority of the list, the Tamilnadu Electricity
Board decided to fix the seniority of the 198 contract labourers based on the actual number of days for which wages were paid by the Board
relating to the period from 1.5.1999 to 31.12.2000. On that basis, the list of contract labourers, who had earned wages for more than 480 days,
was prepared. The list for Erode Generation Circle consists of 163 contract labourers, in which, the Petitioner''s husband name S. Raju was found
at Sl. No. 154.
By means of another proceedings in BP (FB) No. 3/29.1.2001, orders were issued to absorb 126 contract labourers of Erode Generation
Circle as Helpers and the said orders issued, were upheld by the orders of the Division Bench of this Court in W.A. No. 2647 of 2002 filed by the
Tamilnadu Electricity Board. As per the seniority of the list of the above 163 contract labourers, the first 126 contract labourers of Erode
Generation Circle were appointed as Helpers. However, the Petitioner''s husband who was in Sl. No. 154, had to wait for his turn. After this
absorption, there were 65 contract labourers who were yet to complete 480 days out of the 198 and after deducting the discontinued persons,
those involved in criminal case and bogus certificate cases. The petitioner''s husband name S. Raju was at Sl. No. 28 in the list.
The prime contention of the respondents is that the petitioner''s husband S. Raju expired on 23.11.2003 and therefore, his name was not
included in the final list of 61 contract labourers of Erode Generation Circle, who were absorbed as Helpers as per permanent B.P. No. 14 (Adm.
Br) 5.8.2005.
The Learned counsel for the petitioner contended that the Petitioner''s husband, deceased S. Raju, worked for more than 480 days in the
Respondent/Tamilnadu Electricity Board ever since 1.5.1999 and further, he was absorbed as Helper as per B.P. No. 22, dated 14.5.1999 and
therefore, he is entitled to be given the permanent status as per the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to
Workmen) Act, 1981.
To lend support to the said contention, the learned counsel for the Petitioner cites the decision in Metal Powder Co. Ltd., Tirumangalam and
Another Vs. The State of Tamil Nadu and Another, wherein the Division Bench of this Court has held that ""Permanent status is to be claimed only
by a workman who has not only put in continuous service for a period of 480 days but also in service for 24 calendar months.
He also seeks in aid of the decision of the Hon''ble Supreme Court in State of Tamil Nadu and Others Vs. Nellai Cotton Mills Ltd. and
Others, wherein, in paragraph 9, it is laid down as follows:-
That apart, the view taken by the High Court in striking down a portion of sub-section (2), in our opinion, cannot be found fault with. Sub-
section (2) of Section 3 consists of three parts. The first part refers to interruption of service including service which may be interruption on account
of sickness or authorised leave or an accident or a strike which is not illegal or a lockout. The second part consists of the portion which has been
struck down by the High Court an unreasonable restriction on the right of the employer. The third part refers to cessation of work which is not due
to any fault on the part of the workmen. The provisions under the first and the third parts seem to be similar to the terms of Section 25B of the
Industrial Disputes Act which also provides for continuous service of the workman. The second part dealing with non-employment and discharge
of a workman is distinct from the first and the third parts. It refers to the period during which there is no subsisting relationship of master and
servant. We agree with the High Court that the word ''non-employment'' would include retrenchment as well and a person whose services have
been terminated or discharged albeit illegal cannot at all be said to be a person in service, much less in continuous service. Therefore, the period of
non-employment or the period after discharge cannot be counted for the purpose of giving continuity of service. If the discharge is set aside and
workman is reinstated by process known to law the workman automatically gets continuity of service. No special provision is necessary for such
purposes.
He invites the attention of this Court to the decision in J.K. Cotton Spg. & Wvg. Mills Co. Ltd. Kanpur and State of U.P. and Others (1998)
WLR 514 wherein this Court has held thus:
In the instant case, the second respondent after satisfying himself that the members of the petitioner union are entitled for the benefit of Section 3(1)
of the Act, forwarded the representation of the members of the petitioner union for appropriate relief. Under such circumstances, if the first
respondent Corporation failed to pass appropriate orders, giving benefits of conferring permanent status to the members of the petitioner union,
certainly the first respondent shall face the consequences of prosecution provided u/s 6 of the Act. The respondents are directed to modify the
proceedings dated 24.2.1989 to confer the permanent status to individual workmen from the day on which they satisfy the condition, namely
completing the continuous service for period of 480 days in a period of 24 Calendar months in the respondent establishment.
In those circumstances, further it is held that
Section 3(1), being a non obstante provision, it prevails over any law for the time being in force which includes any service Rules, Government
Orders or Government Instructions. Therefore, want of sanctioned posts as required under General Service Rules cannot take away the rights
conferred u/s 3(1) of the Act. Similarly, Government Orders which require that the appointments should be made only through Employment
Exchange also cannot be a ground to refuse the right provided u/s 3(1) of the Act of the petitioners to they comply the requirements prescribed u/s
3(1). Therefore, it is not open for the respondent to take shelter under any other law in force, much less, any Government Orders, Government
Instructions to deny the benefits conferred u/s 3(1) of the Act, to the petitioners if they satisfy the conditions prescribed therein, irrespective of the
availability of sanctioned posts or sponsorship from Employment Exchange
The Learned counsel for the petitioner cites the decision of the Division Bench Judgement of this Court in Mamundiraj N. and Others v. Bharat
Heavy Electricals Ltd., Tricky and Another 1999 I LLJ 622, wherein this Court has observed as follows:
For conferment of permanent status on a workman, he is required to work in an industrial establishment for a period of 480 days in the proceeding
24 calendar months. Interrupted period of service for no fault of workman cannot be unaccounted for the purpose of calculating 480 days of
continuous service.
Further, it is also, held that
The Management cannot be permitted to dwell in unfair labour practices, which is a glaring case in hand especially when the workmen though
named as casual labourers were continuously in service. The Order issued in 1987 was to the effect that the workman was employed at Rs. 17/-
per day to maintain the Service Department w.e.f. 21.11.1987 on purely temporary basis while they were simply relieved of their duties w.e.f.
23.7.1988 and to ritually observe the statutory period of break in service required for depriving the workmen from conferment of permanent status
for a cooling period of 3 months was given and reemployed. The methodology adopted by the Management depriving the workmen of conferment
of permanent status as enjoined by the 1981 Act by bringing about the interruption of service while there was still work force required to continue
the work uninterruptedly as has been demonstrated by the events of keeping the workmen in employment for 480 days in preceeding 24 calendar
months. If it is not an unfair labour practice, it is difficult to assume what more can be the unfair labour practice.
Moreover, in the said decision, it is also laid down by this Court as under:
It is clear that the Management has made a crude attempt to deprive the workmen of the benefit which the Statute has specifically conferred on
them. The continuous service in the context of the scheme and the text of the Act does not postulate a continuous relationship of Master and
Servant. What the Statute accepts is that the workmen should be in the employment of the employer for a period of 480 days in preceding 24
calendar months. To hold otherwise would not only alter the provisions of the Act as well as the object but would result in draconian rule of law
resulting in perpetuating injustice.
Apart from the above, the Learned counsel for the petitioner relied on the following decisions:-
(a) In the decision of this Court in S. Gandhimathi v. The Deputy Registrar of Cooperative Society (Milk) Tirunelveli and 3 Others (2003) WLR
479 : LNIND 2003 MAD 594, this Court has held that
By applying the rule of fiction the deceased is deemed to have been regularised. In terms of The Tamil Nadu Industrial Establishment (Conferment
of Permanent Status to Workman) Act, the deceased ceased to be a casual and deemed to be a regular employee with permanent status on his
completing 480 days and on the date of death he was a permanent employee and therefore his son for whose benefit the writ petition has been
filed is entitled to be considered for appointment on compassionate ground. The contention that the deceased always remained a casual labourer as
no orders have been passed even though proposal was sent for regularisation cannot be sustained.
(b) In the decision of Superintending Engineer, Vellore Electricity Distribution Circle, Vellore, and Others v. Inspector of Labour, Perambalur and
Others (2004) 3 LLN 598 and at special page 599 and 560, this Court has held as under:
The fact about the engagement of the services of the concerned workmen was never disputed by the Board. The only stand was that since they
were all contract workmen, they were not entitled for any benefit to be conferred under the provisions of the Act. But even in respect of the said
stand except the ipse dixit of the stand taken in the counter nothing was placed before the Inspector of Labour. Even about the non-maintenance of
the required forms under the provisions of the Act, the stand of the Board was that since they were all contract labourers, the question of
maintaining those records did not arise. It is pertinent to note that while it was contended that the persons were employed as contract labourers
under certain guidelines, nothing was placed before the Inspector of Labour in support of the said stand.
It can be safely held that by virtue of Section 5 read along with Rule 6(4), the Inspector of Labour can pass positive orders conferring permanent
status to the workmen concerned after examining the representation made before him and after holding an enquiry. The Division Bench of this
Court has also held so in the judgment in Metal Powder Company Ltd., case (1985) 2 LLN 738. In spite of all these if it were to be held that
irrespective of the said statutory stipulations the Inspector of Labour is not entitled to pass positive orders conferring permanent status, such
powers vested with him under the provisions would only result in futility. It is true that u/s 5 read with Rule 6(4) of the Act, the Inspector of Labour
can also direct in the event of any defects in the maintenance of registers to rectify such defects and give appropriate directions to that effect. But,
the same did not mean that, that is the only power vested in the Inspector of Labour and nothing more. The well known canon of construction is
that no provision in a statute can be held to be redundant and therefore, when u/s 5 of the Act specific powers have been provided to the effect
that the Inspector of Labour can enter at all reasonable times into any industrial establishments, make necessary examinations of the records and
record necessary evidence of such persons as he may deem necessary for carrying out the purposes of the Act and when the said provisions read
along with Rule 6(4) which specifically provides that such exercise of powers provided u/s 5 can be made while dealing with a representation and
by passing a positive order conferring permanent status, it will have to be held that the Inspector of Labour would be fully competent to issue an
order conferring permanent status to the workmen based on the evidence available before it based on the enquiry held by him, if it was brought out
that such a benefit should necessarily be conferred on the concerned workmen. It can only be said that to hold otherwise would only defeat the
whole purpose of the enactment, the object of which was that wherever workmen are being kept under temporary rolls, thereby denied of various
statutory as well as non-statutory benefits, which are extended to the permanent workers and wages are paid on consolidated basis far below the
occupational wages without the benefit of dearness allowance, which is paid to the permanent employees, to defeat such deprivation and ensure
that their real status is affirmed.
While the exercise of powers vested with the Inspector under the provisions of the Act is summary in nature, the one under the provisions of the
1947 Act may be an elaborate one. Nevertheless the same does not mean that by exercising the power under the provisions of the Act, the
Inspector of Labour would be trepassing into the adjudication process contemplated under the provisions of the 1947 Act.
(c) In the decision in S. Vijayalakshmi v. Tamil Nadu Water Supply and Drainage Board (represented by its Managing Director, Chennai (supra),
this Court has held as follows :-
A bare perusal of the Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, casts
an obligation on the employer to confer permanent status on an employee who has completed 480 days work in course of two years. 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 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, 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.
(d) In the decision in Hindustan Petroleum Corporation, Ltd. (represented by its Chair-man-cum-Managing Director), Mumbai and Another v.
Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, Chennai and Another (2008) 4 LLN 254 : LNIND 2008 MAD
2300 : (2009) 1 MLJ 115, this Court has held as under:
Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days of
service within a period of two calendar years then, such workmen getting permanent status cannot be questioned by any management. Such
conferment of permanent status to the workmen cannot be labelled as violation of Articles 14 and 16 of the Constitution. The effect of a local
enactment conferring permanent status to workmen was never considered by any Court so far.
(e) The Leaned counsel for the Petitioner cites the order dated 4.4.2003 in W.P. Nos. 20911 to 20916 of 1998 passed by this Court (CDJ) 2003
MHC 753 in paragraph 12), wherein it is held that
The portion of the proceedings of the 2nd respondent in all these writ petitions holding that the workman is entitled for conferment of permanent
status only from the date on which his proceedings are communicated is ordered to be deleted and this Court holds that each one of the workman
for whose benefit the writ petition has been filed shall be deemed to have been conferred with permanent status from the date on which each
employee completed 480 days of continuous service within a period of 25 calendar months.
(f) Also, he relies on the order dated 27.7.2007 in W.A. No. 411 of 1998 and 2410 of 1999 passed by the Division Bench of this Court between
The Tamil Nadu Handicrafts Development Corporation Limited, rep. by its Secretary, No. 759, Anna Salai, Madras - 2 and Another v. The
Inspector of Factories, Range No. II, Madurai - 2 and two Others, wherein in paragraphs 7 and 8, it is laid down as follows:
It is not in dispute that 23+1, i.e., all the 24 workmen have completed more than 480 days of service in 24 calendar months. Details have been
shown in the impugned order dated 4.7.1996 and 9.4.1997 and the list attached thereto. In this background, the appellant cannot deny the benefit
to which such workmen are entitled under the law.
The other ground taken by the appellant is that no proper opportunity was given by the first respondent to the appellant to defend its case, but
such submission cannot be accepted in view of the communication between the parties and the counter affidavit filed by the first respondent.
According to the first respondent, the appellant''s factory is coming under the purview of the Factories Act and Rules and is an establishment as
per Section 2(3) (a) of the Permanent Status Act, 1981. The first respondent has specifically stated that opportunity was given to the appellant to
explain itself and inspection was made in the premises of the appellant on 30.5.1996 and the appellant was called for an enquiry on 10.6.1996 at
10.00 a.m. and enquiry under Rule 6(4) was conducted on 10.6.1996 at 11.00 a.m. in their presence. After going through the records, including
form 25-B issued by the appellant, the respondent, the respondent could gather the date of entry of the workman in the service and also verified
attendance particulars of 1993, 1994 and 1995 as were available in the office of the appellant. Letter No. E/1755/96 dated 3.6.1996, shows that
the Manager of the appellant''s Corporation at Madurai was asked to produce the attendance register of the year 1993, 1994 and 1995 at 3. p.m.
on 7.6.1996.
In respect of other 23 persons, a letter was issued to the Manager of the Corporation at Madurai vide No. NE/872/97 dated 17.3.1997. The date
was subsequently postponed to 7.4.1997 at 11.00 a.m. And the appellant having been informed, its Superintendent, Pumpuhar Brass products,
production Unit, Madurai, by his letter Na. Ka. No. 178/Mahi/97 dated 5.4.1997 requested to furnish letter dated 6.2.1997, as was submitted by
the General Secretary of the Workers'' Union. Thus it will be evident that proper opportunity was given to the appellant and after detailed enquiry,
the orders were passed by the first respondent, Inspector, who is the competent authority.
(g) The Learned counsel for the petitioner cites the Division Bench Judgment of this Court dated 16.3.2006 in W.A. No. 845 of 2000 between
Hindustan Photo Films v. The Deputy Chief Inspector of Factories and Others (CDJ) 2006 MHC 935, wherein paragraph 6, it is observed and
held as follows:
Even before us, the learned counsel for the appellant, by drawing our attention to the order of the Division Bench dated 2.9.2003 made in W.A.
Nos. 1117 to 1132 of 1998, submitted that the management has no objection to pass a similar order as made therein. However, the learned
counsel appearing for the respondent-workmen has brought to our notice that the workmen in that case were trainees and ousted from service at
the instance of the management. In such circumstances, the direction issued in respect of those persons cannot be applied to the respondents
herein, who worked continuously for several years and after proper enquiry, their services were recognised by the competent authority and orders
issued. In the light of the distinction and in view of the categorical finding by the authority, which was upheld by the learned single judge, we are
unable to accept the only argument advanced by the learned counsel for the appellant.
(h) He also relies on the Division Bench Judgment of this Court dated 23.2.2007 in W.A. No. 1186 of 2006 between Lakshmi Mills Company
Ltd., Palladam Branch, Coimbatore v. The Deputy Chief Inspector of Factories, Tiruppur and Another (CDJ) 2007 MHC 1303, wherein at
paragraph 6, it is held that:
Regarding the second contention, it is clearly found that the appellant did not seriously dispute the length of service put in by the workmen,
before the authority and the authority had sufficient evidence to come to the conclusion that the workmen had completed 480 days of service in 24
calendar months. Once that factum is proved, Section 3 of the Tamil Nadu Act 42 of 1981 makes the permanency automatic without any scope
for further enquiry. Besides this, the power vested on the first respondent is of summary nature and he is not required to conduct any elaborate
enquiry. In the present case, the length of service of the workmen is not disputed. Therefore, there is no further enquiry contemplated in the Act.
We deem it appropriate to point out that a workman, who had rendered in a continuous service of 480 days in a period of 24 calendar
months, should be conferred with the permanent status in an establishment.
It is to be pointed out that every employer is supposed to maintain in Tamil language or in English a register of workmen in Form 1 prescribed
under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status To Workmen) Act, 1981 and also prepare and exhibit the list of
workmen with sufficient details for perusal by the workmen. It may not be lost sight of that, such list ought to be sent to the Inspector within a
fortnight from the close of each half-year with a declaration that it has been exhibited in the establishment for perusal by the workmen. The
employer should send an half-yearly return in Form-2 at the end of each half-year.
If an employee who comes to know that his name has not been entered in the list or finds that the entries have not been made
properly/correctly or if he finds that though entries regarding his service have been made correctly but he has not attested the entries in the register
maintained by the employer, may make a representation to the Inspector concerned, who after examining the representation or after making
enquiries, may issue suitable directions to the employer for the rectification of the register of workman or for the issue of orders conferring
permanent status to the workman concerned.
Section 5 of the Act speaks of the Powers and Duties of Inspectors. Section 6 of the Act refers to ''Penalties''. Rule 3 of The Tamil Nadu
Industrial Establishments (Conferment of Permanent Status to Workmen) Rules, 1981 deals with the powers of Inspector in addition to the powers
conferred by virtue of Section 5 of the Act. Rule 4 contemplates that the employer of an industrial establishment shall furnish any information that
an Inspector may require for the purpose of satisfying himself as to whether any provision of the Act or the rules made thereunder has been
complied with or whether any order of Inspector has been duly carried out etc., Rule 6(1) deals with the Maintenance of Registers by Employers.
As per Rule 6, every employer of an industrial establishment shall maintain a registrar of workman in Form - 1 and shall produce the register
whenever it is required by the Inspector having jurisdiction over the industrial establishment etc.,
Section 2(4) of The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 defines ""workman"" as
follows:
(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"" means 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)
The essential test is to determine the existence of right in the matter to supervise and control a person as regards the work to be turned out by
him. As a matter of fact, the definition ''Establishment'' is taken from the Tamilnadu Shops and Establishments Act, 1947 and the same has found a
place in Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and as such, even if no order of
regularisation is passed, a person is deemed to have been regularised as per Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment
of Permanent Status to Workmen) Act, 1981 after completing 480 days of work in a period of 24 calendar months. Even in a case, a
person/employee has worked for more than 240 days in a year and if the Employer/Management fails to produce proper documentary evidence
like voucher, record, etc., an adverse inference can be drawn to the effect that the plea projected by the said person is a trustworthy and a fruitful
one.
As far as the present case is concerned, it is an admitted fact that the Petitioner''s husband Raju was a contract labour with the Tamilnadu
Electricity Board from 1.5.1999 and that he was absorbed as per B.P. (FB).22 of the Tamilnadu Electricity Board dated 14.5.1999 as Helper.
Unfortunately, he committed suicide on 23.11.2003. His death certificate was issued by the Mettur Municipality on 12.12.2003. Even the
certificate dated 1.6.1999 issued by Assistant Executive Engineer, Civil Maintenance, Power Houses, Mettur dam, to the petitioner''s husband S.
Raju showed that he worked as a contract labour in Civil Section, Power Houses, Mettur Dam under Various Contractors, for the period from
30.9.1998 to 30.4.1999 without break in service.
A reading of the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act,
1981 unerringly points out that it is the duty of an employer to confer permanent status on a workman/employee who had completed 480 days of
work in a period of 24 calendar months.
As per B.P. No. 14 (Adm. Br) dated 5.8.2005, the petitioner''s husband name S. Raju could not find a place in the final list of 61 contract
labourers of Erode Generation Circle, who were absorbed as Helpers. The Respondents/Electricity Board contend that at that time the petitioner''s
husband name S. Raju S/o. Sundaram was in Sl. No. 154 and therefore, he had to wait for his turn.
The seniority list of 163 contract labourers was prepared as per the Judgment passed in W.A. No. 2647 of 2002 filed by the Tamilnadu
Electricity Board. Therefore, earlier B.P. (FB) No. 3 dated 29.1.2001 was issued to absorb 126 contract labourers of Erode Generation Circle as
Helpers.
Admittedly, because of the tragic demise of the Petitioner''s husband on 23.11.2003, his name could not find a place, in the final list of 61
contract labourers of Erode Generation Circle who were absorbed as Helpers as per B.P. no. 14 (Adm. Br) dated 5.8.2005. Had he been alive,
then certainly, the Respondents would have showered him with the benefit of conferment of permanent status. During the life time of the
Petitioner''s husband, he was not conferred with permanent status, which was not disputed on both sides.
On going through the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen)
Act, 1981, we are of the considered view that the Petitioner''s husband, completed 480 days of work in a period of 24 calendar months (during
his lifetime), and would become automatically a permanent employee under the Respondents/Tamilnadu Electricity Board, because of the simple
fact that the Section mandates the Respondents to confer permanent status on the Petitioner''s husband S. Raju and the conferment of permanent
status to the Petitioner''s husband S. Raju/Employee/Workman would not depend upon his employer on his own or on a direction given by the
competent authority under the Act.
The words ""employed"" in Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981,
are not directory in nature, in our considered opinion. Per contra, they are mandatory in character. In short, the deeming clause of Section 3(1) of
the Act as aforesaid is explicit and admits of no exception as opined by this Court. Furthermore, the petitioner''s husband late Raju satisfied the
essential condition of, being a worker and the Tamil Nadu Electricity Board being his master, so as to claim the permanent status. Thus, the logical
conclusion that can be deduced in the present case is that even if no order of regularization was passed in respect of the petitioner''s husband Raju
(since deceased), the statutory benefit of permanent status is to be necessarily granted to him by the Respondent/Tamilnadu Electricity Board.
We also hold that even in the absence of any enquiry conducted by the Inspector under the Act, the right conferred upon the Petitioner''s
husband to claim the benefit of permanent status could not be denied by any means because of the simple fact that Section 3(1) of the Act imposes
an obligation upon the Respondents/Electricity Board Authorities to confer permanent status of the Petitioner''s husband, who had rendered 480
days of work continuously in a period of 24 calendar months and on that basis, we hold that the Petitioner''s husband deceased S. Raju is entitled
to be made permanent by the Respondents/Tamilnadu Electricity Board Authorities and once, in law, he was entitled to the benefit of conferment
of permanent status, the resultant benefit could not be deprived to the Petitioner (wife) notwithstanding the fact that during his lifetime no such
permanency was conferred on him. Viewed in that perspective, we hold that a workman, who had completed 480 days of continuous service in a
period of 24 calendar months, would become automatically a permanent employee under the employer, even if, an employer had not conferred
him with the permanent status or even if, no direction was issued by the competent authority in this regard under the Act, 1981 or the Rules framed
thereunder. Accordingly, we answer the Reference.
Also, on the basis of Equity, Fair play, Good Conscience and even a matter of prudence, we direct the Respondents/Tamilnadu Electricity
Board Authorities to issue appropriate proceedings in making the petitioner''s deceased husband Raju as a permanent employee of the Board and
to pay the petitioner family pension, family benefit and other terminal benefits including Gratuity as per Rules and regulations from time to time in
force. The respondents are further directed to consider and dispose of the representation of the petitioner''s dated 8.12.2003 and 8.1.2004
wherein she had prayed for Compassionate Appointment being provided to her daughter Valarmathi as per Rules and in accordance with law
within a period of four weeks from the date of receipt of copy this order, (if not already considered and disposed of.) The respondents are
directed to pay the petitioner''s family pension and other terminal benefits including gratuity etc., due to be paid to the petitioner''s deceased
husband within a period of eight weeks from the date of receipt of copy of this order. As such, the writ petition is allowed in above terms. No
costs.