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2007 DIGILAW 2374 (MAD)

Tamil Nadu Handicrafts Development Corporation Limited, rep. by its Secretary & Another v. The Inspector of Factories Range No. II, Madurai & Others

2007-07-27

K.SUGUNA, SUDHANSU JYOTI MUKHOPADHAYA

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Judgment :- S.J. Mukhopadhaya, J. As both the appeals have been preferred by the same appellant and common question of law involved, they were heard together and are disposed of by this common judgment. 2. At the instance of the 2nd respondent, A. Palaniswamy of W.A.No.411/98, the first respondent, Inspector of Factories, Madurai-2, issued impugned order No.A/1755/96 dated 4th July, 1996, having found that the 2nd respondent workman completed continuous service of 480 days, and directed the appellant to make him permanent on or before 25th July,1996. At the instance of the 2nd respondent-General Secretary of Madurai General Workers Union, Madurai, of W.A.No.2410/99, the first respondent, Inspector of Factories, Range-II, Madurai-2, passed another order No.E/872/97 dated 9th April, 1997, and directed the appellant to give permanent status to the 23 workmen shown in the list annexed thereto by 25th May, 1997. Both the aforesaid orders directing the appellants to confer permanent status in favour of the workman was challenged by filling two separate writ petitions, which have been dismissed by impugned order dated 2nd Feb., 1998, in W.P.No.10374/96 and order dated 26th Oct., 1999, in W.P. No. 5964/97, which are the subject matter of these appeals. 3. As both the appeals could be disposed of on a short point, it is not necessary to discuss all the facts, expect the relevant ones, as stated hereunder. The appellant, Tamil Nadu Handicrafts Development Corporation Ltd., (hereinafter referred to as the ‘Corporation’) is a wholly owned company of the Government of Tamil Nadu, incorporated under the Companies Act, 1956. It is a factory guided under the Factories Act, 1948, and it manufactures brass artwork and handicrafts in its work shed. It has not been disputed that the concerned persons, including the 2nd respondent, A. Palaniswamy and 23 others whose list has been enclosed with letter No.E/872/97 dated 9th April, 1997, are working under the appellant in its brass art work and handicrafts factory. They perform the duty of ‘Pilvin’, ‘Nakas’, ‘Polin’, ‘Moster’, ‘Moltel’, Lathe drilling’, ‘Ruffing’, ‘Meltor’, ‘Polish’, ‘Hand drilling’, etc. It is also not in dispute that the appellant’s factories are guided by the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, (hereinafter referred to as ‘Permanent Status Act, 1981’). Under Section 3, provisions have been made for conferment of permanent status to workmen, which reads as follows:- “3. Conferment of permanent status to workmen. It is also not in dispute that the appellant’s factories are guided by the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, (hereinafter referred to as ‘Permanent Status Act, 1981’). Under Section 3, provisions have been made for conferment of permanent status to workmen, which reads as follows:- “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 eighty days in a period of twenty-four calendar months in a 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 authorized leave or an accident or a strike, which is not illegal, or a lockout or on account of non-employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer, or a cessation of work which is not due to any fault on the part of the workman. Explanation I. – [For the purposes of computing the continuous service referred to in sub-sections (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.” Section 5 of Permanent Status Act, 1981, deals with power and duties of Inspector and under clause (c) therein, Inspector has to exercise such other powers as may be necessary for carrying out the purpose of the said Act. 4. 4. In the present case, there is no dispute about the jurisdiction of Inspector to examine the industrial establishment, any of its registers, records, etc., under clause (b) of Section 5. The main plea taken by the appellant is that the 2nd respondent of W.A. No. 411/98 and the 23 persons, who have been shown as workmen in the list attached to the letter dated 9th April, 1997, they being piece-rate workers, cannot be treated to be workmen for the purpose of Section 3 of the Permanent Status Act, 1981. The 2nd respondent of both the writ appeals, including Association of the workmen, have not disputed that those 23 persons named in the list attached to the letter dated 9th April, 1997 and the 2nd respondents of W.A. No.411/98 are piece-rate workers. According to them, all of them having completed more than 480 days of service during the last 24 calendar months, the first respondent has rightly passed order for granting them status of permanent workman. 5. Section 2(4) defines ‘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. It excludes persons only of three categories, namely— a) who is employed in the police service or as an officer or other employee of a prison; or b) who is employees mainly in managerial or administrative capacity; or c) who, being employed in a supervisory capacity, draws wages exceeding one thousand 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 managerial nature. 6. Admittedly the 2nd respondent in W.A. No.411/98 or any of the 23 persons shown in the list attached to the letter dated 9th April, 1997, do not fail within the aforesaid excluded category. They being employed in the industrial establishment of the appellant and as they are doing skilled or unskilled and manual job, they are covered by definition of workman u/s 2 (4). So far as Section 3 is concerned, it deals with permanent status of workman as evident from the provision and quoted above. They being employed in the industrial establishment of the appellant and as they are doing skilled or unskilled and manual job, they are covered by definition of workman u/s 2 (4). So far as Section 3 is concerned, it deals with permanent status of workman as evident from the provision and quoted above. It talks of every workman, irrespective of their status, i.e., whether piece-rate workman or daily wage workman or temporary workman or adhoc workman and their entitlement to conferment of permanent status, if completed 480 days in a period of 24 calendar months. Therefore, the submission as made on behalf of the appellant that the aforesaid persons are not workman and not entitled for benefit of permanent status u/s 3 cannot be accepted and it is accordingly rejected. 7. 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 4th July, 1996 and 9th April, 1997 and the list attached thereto. In this background, the appellant cannot deny the benefit to which such workmen are entitled under the law. 8. 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 30th May, 1996 and the appellant was called for an enquiry on 10th June, 1996 at 10.00 a.m. and enquiry under Rule 6 (4) was conducted on 10th June, 1996 at 11.00 a.m. in their presence. After going through the records, including form 25-B issued by the appellant, 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. After going through the records, including form 25-B issued by the appellant, 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 3rd June, 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 3.00 p.m. on 7th June, 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 17th March, 1997. The date was subsequently postponed to 7th April, 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 5th April, 1997 requested to furnish letter dated 6th Feb., 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. 9. For the reasons stated above, we find no ground made out to interfere with the order passed by the learned single judge. There being no merit, both the writ appeals are dismissed. However, there shall be no order as to costs.