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2012 DIGILAW 489 (MAD)

M. E. Devarajan v. V. Jayaraman

2012-02-01

K.CHANDRU

body2012
Judgment :- 1. The petitioner is the Chairman of the Educational Trust and the said Trust is running several colleges. In this writ petition, the petitioner has come forward to challenge the order passed by the Inspector of Labour, Chennai - 3 dated 22.01.2007. 2. By the impugned order, the second respondent directed the petitioner management to confer permanent status on the first respondent in terms of Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (for short Tamil Nadu Act 46 of 1981) from the date on which the first respondent completed 480 days service within a period of 24 calendar months. 3. The writ petition was admitted on 22.08.2007. Pending the writ petition, interim stay was granted. The first respondent filed a vacate stay petition in M.P.No.3 of 2007 together with supporting counter affidavit dated 19.11.2007. In the meanwhile, the said petition came to be dismissed for want of prosecution on 09.07.2008. Therefore, the first respondent filed M.P.No.1 of 2008 for restoring the vacate stay petition, which was allowed on 11.09.2008. Even during the pendency of the writ petition, it transpires that the Secretary of the petitioner Trust has given an office order dated 07.12.2010 bringing the first respondent on time scale of pay. The said order reads as follows: "The letter of request of Thiru.V.Jayaraman cited in the reference considered. His basic pay has been fixed at Rs.2,550/- + D.A. Rs.2,168/- + Special Allowance Rs.200/-Total Emoluments Rs.4,918/- p.m. on par with Thiru.B.Vasu, who is working as X operator in Sriram Engineering College, Perumalpattu with effect from 01.07.2010." 4. It is seen from the records that the first respondent who was employed as a watchman and gardener and also cleaner during the examination time and as a watchman in the womens hostel at Perumalpattu campus and Veppampattu campus filed an application before the Inspector of Labour, claiming grant of permanent status in terms of Tamil Nadu Act 46 of 1981. The second respondent has been appointed as Inspector under Rule 6(4) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Rules, 1981 r/w Section 3 of Tamil Nadu Act 46 of 1981. The second respondent took up the application on his file and issued notice to the petitioner Trust. The petitioner Trust filed a counter statement dated Nil before the authority. The second respondent took up the application on his file and issued notice to the petitioner Trust. The petitioner Trust filed a counter statement dated Nil before the authority. In the counter statement, they have stated that the first respondent was engaged in temporary capacity and he was not liable for any permanent status and he has no right to claim permanent status and the application filed by him was illegal. 5. Before the second respondent authority, no evidence was let in and no document was produced. The authority, after dealing with the statements of both sides, found that the claim made by the first respondent was legally valid and therefore he is entitled to the relief. In that view of the matter, he granted the relief in favour of the first respondent and conferred permanent status in terms of Section 3 of the Tamil Nadu Act 46 of 1981. In the operative portion of the order, the authority has recorded as if the parties have let in evidence by filing documents and also written arguments but there is nothing on record to show that he has referred to any such document or the written arguments filed by both the parties. In any event, for the purpose of applying the provisions of the Tamil Nadu Act 46 of 1981, the establishment must be an industrial establishment within the meaning of Section 2(3) of the said Act. The industrial establishment has been defined to include a factory, plantation, motor transport undertaking, beedi industrial premises, establishment defined in clause (6) of Section 2 of the Tamil Nadu Shops and Establishments Act, 1947, catering establishment. Apart from the listed establishments under Section 2(3)(g) of the Act, the State Government has got power to apply the provisions of the Act by way of Notification declaring a particular establishment as an industrial establishment for the purpose of the Act. But in terms of Section 2(3)(g) of the Act, no Notification has been issued by the State Government so far. Assuming for argument sake that the first respondents contention that he was initially working in the womens hostel, it has to be seen whether the hostel will come under the provisions of the catering establishment within the meaning of Section 2(1) of the Tamil Nadu Catering Establishments Act, 1958. Assuming for argument sake that the first respondents contention that he was initially working in the womens hostel, it has to be seen whether the hostel will come under the provisions of the catering establishment within the meaning of Section 2(1) of the Tamil Nadu Catering Establishments Act, 1958. Since the catering establishment has been defined under Section (2)(1) of the Tamil Nadu Catering Establishments Act, 1958 and is governed in terms of Section 2(3)(g) of the Tamil Nadu Act 46 of 1981, it has to be seen whether the womens hostel is a catering establishment. Section 2(1) of the Tamil Nadu Catering Establishments Act reads as follows: "2(1).Catering establishment means a restaurant or residential hotel and includes a restaurant or canteen attached to, or run or managed by, any society registered under any law for the time being in force but does not include a restaurant or canteen attached to, or run or managed by, any educational institution." (emphasis added) 6. It could be seen that canteen attached or run by or managed by the educational institution has been included within the definition of the said Act. The authority before conferring permanent status in terms of Section 3 of the Act, first must decide whether he has got jurisdiction to entertain such a complaint and if he has got jurisdiction, whether the employee is working within the meaning of any industrial establishment in terms of Section 2 of the said Act. The authority also not dealt with the same, though it was contended by the petitioner that he has no jurisdiction to deal with the same. Under the said circumstances, the writ petition stands allowed and the impugned order stands set aside. However, since the petitioner Trust itself conferred the time scale of pay to the first respondent by proceedings dated 07.12.2010, during the pendency of the writ petition, allowing of this writ petition will not automatically result in cancellation of the said order. No costs. Consequently, connected miscellaneous petitions are closed.