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Judgment
P.D. Dinakaran, J.—For the purpose of convenience, parties are referred to as per their rank in Writ Petition No. 5962 of 1997.
While in Writ Petition No. 5962 of 1997, 41 employees working under the first respondent Management seek a writ of Mandamus directing the
first and second respondents to treat the employees mentioned in the orders dated 26.7.1996, 30.9.1996 and 13.12.1996 issued by the third
respondent as permanent with all consequential benefits including arrears of salary and other allowance, in Writ Petition Nos. 32916 and 35143 of
2003, the first respondent Management seeks a writ of Certiorari to call for the records of the third respondent - Inspector of Factories made in
his proceedings No. E2348 of 1996 dated 26.7.1996 and 30.9.1996 and quash the same.
3.1. It is not in dispute that the third respondent, Inspector of Factories, an authority appointed u/s 4 of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act, 1981, (for brevity, ""the Act""), by exercising the powers conferred u/s 3 read with Section 5
of the Act, pursuant to the inspection made on 24.7.1996, passed the impugned orders dated 26.7.1996, 30.9.1996 and 13.12.1996, directing
the first respondent to confer permanent status to 20, 17 and 4 employees respectively, working under the first respondent-Management.
3.2. Since the orders of the third respondent dated 26.7.1996, 30.9.1996 and 13.12.1996 had not been complied with, the said 41 employees
filed Writ Petition No. 5962 of 1997 on the ground that the non compliance of the orders of the third respondent is contrary to the spirit and scope
of Section 3 of the Act.
Ms. Vaigai, learned Counsel appearing for the employees contends that as per G.O. Ms. No. 86, Cooperation, Food and Consumer Protection
Department dated 12.3.2001, 41 employees are entitled for regularisation. In this regard, she relied upon the decision of a Division Bench of this
Court in Justine, L. v. The Registrar of Cooperative Societies 2002 (4) CTC 385, wherein, it is held as follows:
19(i) that G.O.Ms. No. 86, Cooperation, Food and Consumer Protection Department, dated 12.3.2001, has got the effect of only authorising the
regularisation of the employees recruited by the cooperative societies for the period from 9.7.1980 to 11.3.2001 exempting the intervention of
employment exchange.
(ii) that G.O.Ms. No. 86, Cooperation, Food and Consumer Protection Department, dated 12.3.2001, shall not operate for regularisation of any
employee recruited by the cooperative societies in violation of Sub-rule (1) of Rule 149 of the Tamil Nadu Cooperative Societies Rules, as
amended by G.O.Ms. No. 212, Cooperation, Food and Consumer Protection Department, dated 4.7.1995.
On the other hand, Mr. R. Balasubramanian, learned Counsel appearing for the Management contends that the said 41 employees cannot be
conferred permanent status as they were not employed through the employment exchange, that they are excess to the cadre strength of the first
respondent Management and that the third respondent had passed the orders of confirmation without conducting any enquiry on the issue.
We have given our careful consideration to the submissions of both sides.
7.1. As per the scheme of the Act, on a mere representation by the workman to the industrial establishment or the employer, as the case may be,
seeking the above statutory right conferred u/s 3 of the Act, such industrial establishment or employer shall provide the benefits of Section 3 of the
Act to the workman, otherwise, such employer shall have to face the prosecution as provided u/s 6 of the Act.
7.2. In this regard, I am obliged to refer Sections 3 and 5 of the Act, which read as under.
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 authorised leave or an accident or a strike, which is not illegal, or a lock-out or a cessation of work which
is not due to any fault on the part of the workman.
Explanation I....
Explanation II....
Power and duties of inspectors: Subject to any rules made by the Government in this behalf, the Inspector may, within the local limits for which
he is appointed.
(a) enter at all reasonable times and with such assistants, if any, who are persons in the service of the Government or of any local authority as he
thinks fit to take with him, any industrial establishment;
(b) make such examination of the industrial establishment and of any registers, records and notices and take on the spot or elsewhere the evidence
of such person as he may deem necessary, for carrying out the purposes of this Act; and
(c) Exercise such other powers as may be necessary for carrying out the purposes of this Act.
That apart, this Court, while interpreting the powers conferred under Sections 3 and 5 of the Act, in Tamil Nadu Civil Supplies Corporation
Modern Rice Mill Engineering Section Employees Union (rep. by its Secretary), Sundarakottai v. Tamil Nadu Civil Supplies Corporation (rep. by
its Managing Director), Madras 1999 (3) LLN 286, has held as follows:
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 powers 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 appointment 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 (sic) if they comply with 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 fact whether there are irrespective of the availability of sanctioned posts or sponsorship from Employment Exchange.
It is also relevant to observe Section 5 which prescribes the powers and duties of Inspectors. u/s 5(b), the Inspector is empowered to
evidence (sic) of such person as he may deem necessary for carrying out the purposes of the Act. Section 5(c) further empowers the Inspector to
exercise such other powers as may be necessary for carrying out the purposes of the Act. Therefore, under the scheme of the Act, the Inspector is
empowered to exercise all such powers that are necessary for carrying out the purposes of the Act including taking evidence, holding enquiry,
passing orders, achieve the object of the Act and also to implement such orders for carrying out the purposes of the Act which includes power to
initiate penal action u/s 6 of the Act for contravention of Section 3(1) of the Act.
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 circumstance, 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 contention that the said 41 employees are not required as they exceed the cadre strength also cannot be accepted, because, as per the
counter affidavit filed by the first respondent, the employees required is more than 190 to 200 every day. The relevant portion of the counter
affidavit reads as follows:
This respondent respectfully submits that there are as many as 155 mazdoors and 75 casuals in the 1st respondent''s production department i.e.
main dairy. Out of these strength, 40 to 45 casuals alone are regularly attending duty in the production department i.e. main dairy. Rest of the
casual workers are attending only for a few days ranging from 2 to 10 days in a month. Equally, in the case of mazdoors also, 15 of them are
irregular in attending duty. Many of them are long absentees and are availing their leave on ''loss of pay''. Therefore, totally effective strength of
mazdoors and casual workers comes approximately to 140 to 145. However, the manpower requirement in the main dairy alone comes to 190-
200 leaving a gap of 50-60 manpower shortage every day.
The only remaining contention that the third respondent had passed the impugned orders without conducting any enquiry also cannot be
sustained as the same were passed pursuant to the inspection conducted on 24.7.1996, as evident from the proceedings dated 26.7.1996.
For the reasons aforementioned, I am convinced that the ratio laid down by this Court in the decisions cited supra, squarely applies to the facts
of the case and therefore, the 41 employees are entitled to the benefit of Section 3(1) of the Act.
Accordingly, I do not find any justification to interfere with the orders passed by the third respondent. Hence, there shall be a direction to the
first respondent Management to confer permanent status to the employees mentioned in the orders dated 26.7.1996, 30.9.1996 and 13.12.1996
issued by the third respondent and shall give all consequential benefits including arrears of salary and other allowance. Accordingly, W.P. No.
5962 of 1997 is allowed and W.P. Nos. 32916 and 35143 of 2003 are dismissed. No costs.