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Judgment
The Hon''ble Mr. Justice K. Chandru
This writ petition is filed by the Management of Salem Cooperative Spinning Mills through its Administrator (In-charge), Salem.
In this writ petition, the Petitioner management challenged a common order passed by the first Respondent-Labour Court in C.P. No. 321 to
329/2003, 494/2003, 42/2004, 43/2004, 405/2004 to 412/2004 and 393 to 397 of 2005.
By the impugned order, the Labour Court computed the amounts in favour of the contesting Respondents as set out in the annexure to the
order. The amount represents the wages payable to the workmen on account of the order passed by the Deputy Chief Inspector of Labour, Salem
in granting permanent status to those Respondents in terms of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to
Workmen) Act 1981 (Tamil Nadu Act 46 of 1981). The contesting Respondents claimed that in view of the fact that they have been made
permanent by the non-obstante clause found u/s 3 of the Tamil Nadu Act 46 of 1981, they should be paid wages on par with the permanent
workers. Since the Petitioner''s mill did not pay the amounts, they claimed the difference in the amounts paid. The claim applications filed by the
contesting Respondent were assigned different claim petition numbers as quoted above and notices were ordered to the Petitioner management.
The Petitioner management filed counter statements and copies of those counter statements were also found enclosed in the typed set. In the
counter statement, the principal defence taken by the Petitioner management was that the mill has been declared as a relief undertaking under the
Tamil Nadu Relief Undertaking Act, 1969 and by virtue of the provisions of the said Act, certain enactments cannot be enforced during the period
of moratorium. Therefore, the workmen were not eligible for conferment of any permanent status and consequently the orders passed by the
Deputy Chief Inspector of Factories, an Inspector constituted u/s 6 of the Act were not valid. It is also stated that the management had filed a writ
petition against the order by the Deputy Chief Inspector of Factories and which was likely to be taken up very shortly. They also filed an additional
counter statement stating that the provisions of the Industrial Disputes Act have no application, since the Petitioner mill has been declared as a relief
undertaking for over five years before the date of the filing of the counter statement dated 4.12.2006. It was renewed on year to year basis. The
scheme of voluntary retirement(VRS) had also been introduced. The workmen were not eligible for any VRS amount. The workmen were also not
laid off and there was no arrears of salaries to be paid to the workmen.
Before the Labour Court, on behalf of the workmen, seven documents were filed and marked as Exs.P1 to P7. But, no oral evidence was let in.
Exs.P1 to P5 are the orders passed by the Deputy Chief Inspector of Labour, Salem for granting conferment of permanent status to the contesting
Respondents. On behalf of the Petitioner-management, two witnesses were examined M/s A. Vallinayagam and A Palanivel as RW.1 & 2 and on
their side, 17 documents were filed and marked as Exs.R1 to R17. Summons were issued for production of actual attendance particulars along
with wage slips and those documents which were received were marked as Ex. C1 series.
6 That the Petitioner mill was declared as relief undertaking under the Tamil Nadu Act 21 of 1969, they filed document Nos. Exs.R10 to R16. The
Labour Court on the basis of the materials placed, came to the conclusion that the mill had stopped its operation from 31.03.2004. All the amounts
of the permanent workmen accounts were settled and they have also received lumpsum amounts by accepting to go on Voluntary Retirement.
With reference to the contesting Respondents, who were labelled as gate Recruitment Workman, were granted permanent status numbering
about 80+69. The statement of the management that the order passed by the Deputy Chief Inspector of Labour under the Tamil Nadu Act 46 of
1981 was under challenge by filing writ petitions cannot hold good as the writ petition was dismissed by this Court. Therefore, u/s 3 of the Tamil
Nadu Act 46 of 1981 the workmen were deemed to have become permanent. The contention of the management was that since the workmen
were not recruited through appropriate recruitment rules and they were not sponsored by the Employment Exchange and hence, their appointment
was illegal and they cannot claim any permanent status.
With reference to their claim that under the Tamil Nadu Relief undertaking Act, certain enactments were exempted, the Labour Court held that
such a defence was not open to them, in the light of the judgment in Uptron India Limited v. Presiding Officer Labour Court, Dehradun and Anr.
reported in 2004 LLJ 378. In that case, the Court held that Section 22 of the Sick Industrial Companies (Special provisions) Act 1985, have no
application in denying the payments arising out of the wages and such claims were not hit by Section 22 of the SICA Act. The Labour Court also
held that on the basis of the examination of Ex. C1 series, the workmen were not paid the wages on par with the permanent workers. Therefore,
they were eligible to get difference in wages.
Challenging the said common order, a single writ petition was filed before this Court, and it was admitted on 22.10.2009. Pending the writ
petition, interim stay was granted on the condition that the Petitioner mill should deposit 50% of the award amount to the credit of the Labour
Court. Instead of complying with the order, the Management filed M.P. No. 1 of 2010 for modifying the order on the ground of non-availability of
funds and hence they were unable to generate further amount from the Government. No orders have been passed on the said application. In the
meanwhile, aggrieved workmen filed MP. No. 2 of 2010 seeking to vacate the order together with a common affidavit sworn to by one
Gunasekaran who is the second Respondent in the main writ petition.
In the affidavit filed, in support of the application it was stated that the workmen had filed a writ petition before this Court in W.P. No. 937 of
2002 seeking for a direction to the Petitioner mill to implement the order passed by the Deputy Chief Inspector of Factories and that writ petition
came to be allowed by this Court on 14.02.2002. The mill did not obey the order which necessitated the workmen in moving the Labour Court
claiming various amounts.
The principal contentions raised in the affidavit are as follows:
(i) that the Labour Court had exercised the wrongful jurisdiction u/s 33-C(2) of the Industrial Disputes Act;
(ii) Subsequent to the order passed by this Court in W.P. No. 937 of 2007 dated 08.03.2002, the Director of Handlooms & Textiles by his
proceedings dated 08.03.2002 rejected the representation of the workman. Therefore, the order of the Deputy Chief Inspector of Factories had
not become final.
(iii) The Supreme Court vide its judgment in Secretary, State of Karnataka and Others Vs. Umadevi and Others, held that regularization cannot be
equated with permanency.
(iv) The workmen were not recruited through Employment Exchange in terms of the procedure required under Rule 149 of the Tamil Nadu
Cooperative Societies Rules.
(v) The workmen cannot invoke the provision of the Tamil Nadu Permanent Status Act or the Industrial Disputes Act in the light of the judgment of
this Court in L. Justin v. Registrar of Cooperative Societies and Anr. reported in 2002(4)CTC 385
(vi) The Petitioner mill is covered by the provisions of Tamil Nadu Relief Undertaking (Special Provisions) Act 1969 and hence the provisions of
Section 33(C))(2) of the Industrial Disputes Act, will not arise.
Taking all the submissions together, it must be stated that the jurisdiction of the Labour Court u/s 33-C(2) of the Industrial Disputes Act in
computing the monies in favour of the workmen, was based upon a pre-existing right. In the present case, the workmen were deemed to have
become permanent in the light of the declaration made u/s 3 of the Tamil Nadu Act 46 of 1981 and the authority constituted under the said Act
viz., Deputy Chief Inspector of Factories had also made a declaration. Inasmuch as the order passed by the said authority has become final, the
workmen are entitled for all the benefits. In view of the non-obstante clause found u/s 3(1) read with Explanation(ii) any other order contrary to the
provisions of the Act will become invalid. Therefore, when this Court gave a direction to consider the representation, it did not mean the Director
of Handlooms and Textiles gets jurisdiction to reform a statutory power exercised by the authority marked as Exs.P1 to P5 before the Labour
Court.
The reliance placed upon the Tamil Nadu Relief Undertaking (Special Provisions) Act 1969, is misplaced. The Act only postpones the liability
during the period, under which the Government order is passed u/s 4 of the Act and the schedule only deals with Industrial Employment (Standing
Orders) Act, the Industrial Disputes Act 1947, The Minimum Wages Act 1948 and the Tamil Nadu Shops and Establishments Act 1947 and it
does not deal with Tamil Nadu Act 46 of 1981, under which the workmen have already got the relief. u/s 6, it is the liability of the employer which
gets postponed during the period of exemption, but that does not extinguish the rights of the workmen from claiming amounts due to them either
under the terms of contract or under any statutory entitlement. Even before the Labour Court, the Petitioner-employer had filed G. Os. granting
exemption from the purview of the four enactments.
It must be seen that in the context of Section 4 of read with Section 5 it only deals with contracts, agreements under which employer is obliged,
whereas Tamil Nadu Act 46 of 1981, non obstante clause u/s 3(1) read with Explanation (ii) the term ''law'' will include awards, agreements,
settlements, instruments or contract of service whether made before or after the commencement of the Act. As between the two State laws, the
Tamil Nadu Act 46 of 1981, more particularly the non-obstante clause found u/s 3(1) of the said Act will have an overriding effect.
The scope of non-obstante clause found u/s 3(1) of the Act came to be considered by this Court in Tamil Nadu Civil Supplies Corporation
and Modern Rice Mill Engineering Section Employees Union (rep. by its Secretary) Sundarakottai v. Tamil Nadu Civil Supplies Corporation
(represented by its Managing Director) Madras and Anr. reported in 1999 (3) L.L.N 286 it was held that it was 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, if the workers satisfy the said definition under the provisions. Further, the power of the Labour Court to compute amounts due to the
workmen u/s 33-C(2) of the Industrial Disputes Act is only a procedural law and not a substantive law for which suspension of obligation
contemplated u/s 4 of the Act can be made. If the workers are entitled to get certain sums paid, then the provisions of the Tamil Nadu Relief
Undertaking Act, does not stand in the way of their enforcing their right to get payments to which they are eligible. The other contention that
Justin''s Case followed by Uma Devi''s case would disable the workmen from claiming any amount and also does not stand to reason.
In the present case, the order of the Deputy Chief Inspector of Factories had become final. Once it had become final, it is not open to the
Petitioner mill to attack the validity of the said order through collateral proceedings. Further, the non-obstante clause u/s 3 of the Tamil Nadu Act
46 of 1981 will have an overriding effect over the other enactments. In the present case, the initial entry of the workmen cannot be said to be either
illegal or contrary to the statutes, as they were only recruited as a Gate Recruitment Worker which only means that they have to be present at the
gate and they will be given employment depending upon every day''s exigencies in the mill. Therefore, there is no requirement of any sponsorship
by Employment Exchange for getting such an employment.
Very recently, the Supreme Court in relation to the claim made by the workmen, under the provision of the Industrial Disputes Act, came to
consider the objections raised by the employer with reference to their source of recruitment was not proper based upon Uma Devi''s case (cited
supra), in Devinder Singh Vs. Municipal Council, Sanaur, . The Supreme Court held that the source of employment, the method of recruitment, the
terms and conditions of employment and contract of service,quantum of wages, pay and the mode of payment are not at all relevant for deciding
whether or not a person is a workman within the meaning of the Industrial Disputes Act, In paragraph 13,it has been held as follows:
The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay
and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It
is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee of a person
appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a
regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on
fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
With reference to the objection that the recruitment itself was not proper, the Supreme Court rejected the said statement by stating that in such
cases, if any illegality has committed by the employer, it cannot be drawn by the Court. In Para.27 and 28, it was observed as follows:
It is true that the engagement of the Appellant was not preceded by an advertisement and consideration of the competing claims of other
eligible persons but that exercise could not be undertaken by the Respondent because of the ban imposed by the State Government. It is surprising
that the Division Bench of the High Court did not notice this important facet of the employment of the Appellant and decided the writ petition by
assuming that his appointment/engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that
failure of the Director, Local Self-Government, Punjab to convey his approval to the resolution of he Respondent could not be made a ground for
bringing an end to the engagement of the Appellant and that too without complying with the mandate of Section 25-F(a) and (b).
The other reason given by the High Court is equally untenable. The Appellant could hardly be blamed for the delay if any, in the adjudication of
the dispute by the Labour Court or the writ petition filed by the Respondent. The delay of four to five years in the adjudication of disputes by the
Labour Court/Industrial Tribunal is a normal phenomena. If what the High Court has done is held to be justified, gross illegalities committed by the
employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the
approach adopted by the High Court in dealing with the Appellant''s case.
In the light of the above, there is no case made out for interfering with the common order passed by the Labour Court. Hence, the writ petition
stands dismissed,. No costs. Consequently, connected miscellaneous petitions are closed.