IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06-02-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.2556 of 2003 1.The Management, Ambattur Dairy Corporation Madras-98. 2.The Tamilnadu Co-operative Milk Producers Federation Ltd., Madhavaram, Chennai-51. ..Petitioners Versus 1.The Presiding Officer, 1st Additional Labour Court, Chennai-600 104. 2.C.Harikrishnan ..Respondents Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records relating to the proceedings in I.D.No.464 of 1997, dated 29.4.2002 of the 1st respondent and quash the same. For Petitioners : Mr.S.Ravichandran For Respondents : Mr.G.Jeremiah (R2) O R D E R Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the second respondent. 2. This writ petition has been filed challenging the award of the first respondent Labour Court, dated 29.4.2002, made in I.D.No.464 of 1997. 3. It has been stated that the case of the second respondent, before the first respondent Labour Court, is that he was employed as a casual Labour (PREPAC) in the Ambattur Unit of the Tamilnadu Co- operative Milk Producers Federation, Madras. He was employed from the year, 1985, on daily wage basis, till the year, 1996. His last drawn wages is Rs.35/- per day. The second respondent had further stated that he had worked for more than 240 days in a year and therefore, he is a workman under the petitioner Corporation and that https://hcservices.ecourts.gov.in/hcservices/ his non-employment by the petitioner Corporation is arbitrary and illegal. 4. It was also stated that he was given an identity card by the petitioner Corporation and that he was continuously employed for a period of more than 11 years, from 1985 to 1996. However, he was terminated from service, orally, in the month of November, 1995. Thereafter, based on the failure report submitted by the Conciliation Officer, the second respondent had raised an industrial dispute before the first respondent Labour Court, in I.D.No.464 of 1997. 5. The petitioner, while denying the allegations made by the second respondent before the Labour Court, had submitted that the labourers engaged by the petitioners were working in three shifts, depending upon the requirement and shortage arising due to the regular employees going on leave or absenting themselves from duty. The second respondent was engaged as a casual labourer, on daily wage basis, at the rate of Rs.35/- per day, which was fixed by the District Collector. Since the temporary employees were engaged only in the leave vacancies or in the vacancies caused due to the absence of the regular employees, they do not have any right to the post. The claim of the second respondent that he had worked for more than 240 days in a year and for 480 days in two years and therefore, he should be considered to be a permanent workman under the petitioners, in accordance with the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, is devoid of merits. 6. It is not for the Labour Court to confer the status of a permanent workman, by invoking the provisions of the said Act. A temporary daily-rated employee cannot be considered to be a permanent workman, as held by the first respondent Labour Court in its award, dated 29.4.2002. It is only the competent authority under the said Act, who can confer the permanent status on the workman. The Labour Court had failed to consider the fact that the second respondent had worked only for a period of 726 days during the 11 years, from 1985 to 1996. Further, the second respondent was not in a position to show that he had worked for a period of 480 days in two years, as required under the Act, to be conferred with the status of a permanent workman. In fact, it is for the workman to show that he had worked for more than 480 days in two years, as required under the provisions of the Act, before being conferred with the status of a permanent workman. Therefore, the award of the first respondent Labour Court, dated 29.4.2002, made in I.D.No.464 of 1997, is arbitrary, illegal, and void. 7. The petitioners in the present writ petition had submitted before the first respondent Labour Court that whenever there was a need for employment of casual labour, applications had been received, directly, from persons who were residing in and around the work area. The applicants should have completed 18 years of age and should also possess the minimum educational qualifications necessary https://hcservices.ecourts.gov.in/hcservices/ for such employment. Once such persons are selected they would be issued with photo identity passes. 8. It had been further stated that the labourers were engaged in three shifts depending upon the requirement and shortage arising out of the regular employees going on leave or absenting themselves from duty etc., The second respondent had been engaged only as a casual labourer, on daily wage basis, at the rate of 35/- per day, which was the rate applicable at the relevant point of time. The rate of daily wage had been fixed by the District Collector concerned, from time to time and the casual labourers were being engaged only when there was work available for them, on `no work no pay basis'. The engagement of such labourers was only for about 45 to 55 days and it will not be beyond 60 days, on any account. Hence, the contention of the second respondent that he was working for 480 days, in two years, is denied. The second respondent had been engaged only for a limited number of days, that too during specific years, as shown below: Sl.NO Date Name of the Unit and No. of days worked Ambattur Ayanavaram Transport 1 1985 Nil --- --- 2 1986 Nil --- --- 3 1987 54 --- --- 4 1988 101 --- --- 5 1989 50 --- --- 6 1990 --- --- --- 7 1991 Nil --- --- 8 1992 54 --- --- 9 1993 47 --- --- 10 1994 26 51 78 11 1995 110 54 54 12 1996 Nil 47 Nil 9. The petitioners had further stated that the authorities prescribed under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, are to decide with regard to the permanent status of the second respondent. There is no provision in the said Act according to which a workman would be conferred permanent status, automatically, without following the procedures established therein. The first respondent Labour Court, without following any of the procedures established by law, had passed an award in favour of the second respondent, contrary to the facts and circumstances of the case. 10. No counter affidavit has been filed on behalf of the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel appearing on behalf of the petitioners had submitted that the award of the first respondent Labour Court, dated 29.4.2002, is a nullity, as it has been passed without jurisdiction and therefore, it is liable to be set aside. The jurisdiction of the first respondent Labour Court had been ousted, in view of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. 12. The conferment of permanent status can be made to a workman only under Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, provided that the requirements prescribed therein had been satisfied. The power to confer permanent status could be exercised only by the competent authority, as provided under the act. The Labour Court is not empowered to confer such a status on a workman. The first respondent Labour Court had not given any finding with regard to the issue of jurisdiction raised by the petitioners. Even though the onus was on the second respondent to prove that he was in continuous employment for a period of 480 days in two years, he had failed to do so. The first respondent Labour Court had failed to consider the fact that the second respondent had been employed by the Management of the Ambattur Dairy Corporation, Chennai, only on a temporary basis, during the absence of the regular workmen, either due to their absence or on their availing casual leave. The first respondent Labour Court had also failed to appreciate the fact that the second respondent had worked only for a period of 726 days during the entire period of 11 years, from 1985 to 1996. When there is no sanctioned post or a permanent vacancy in such a post, absorption of any workman, giving him a permanent status, cannot be done. Therefore, the first respondent Labour Court had erred in passing the award, dated 29.4.2002, to reinstate the second respondent, as a permanent employee, in the Ambattur Dairy Corporation, Chennai, with backwages and continuity of service. Hence, the award of the first respondent Labour Court, dated 29.4.2002, made in I.D.No.464 of 1997, is invalid in the eye of law and therefore, it is liable to be set aside. 13. The learned counsel appearing for the petitioner had relied on the following decisions in support of his contentions: 13.1. In Dhampur Sugar Mills Ltd. V. B.Singh (2005(I) L.L.N. 1069), the Supreme court had held that when a workman had been appointed in terms of a scheme of daily wages, he does not derive any legal right to be regularised in service. Completion of 240 days of continuous service in a year may not, by itself, be a ground for directing regularisation, particularly, in a case when the workman had not been appointed in accordance with the relevant rules. 13.2. In Reserve Bank of India Vs. Gopinath Sharma and another (2006(6) SCC 221), the Supreme Court had held that a workman, who had not been appointed to any regular post but engaged on the basis of need of work, on day-to-day basis, had no right to https://hcservices.ecourts.gov.in/hcservices/ the post and therefore, his disengagement cannot be treated to be arbitrary. 13.3. In Union of India V. Ilango (2005 (I ) LLN 834 ), a Division Bench of this Court had held, in respect of daily rated casual labourers seeking regularisation on the ground that they had put in 240 days of continuous service, within less than two years of their employment, there were no sanctioned posts to which the employees could be said to have been appointed. Mere completion of 240 days does not merit right to regularisation. 13.4. In N.Selvan V. I.G. of Police (2005(I) L.L.N 895) a Division Bench of this Court had held that a daily wage employee is only a temporary employee and that he has no right to the post. 14. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the award of the first respondent Labour Court is in accordance with the provisions of law applicable to the case and it is valid. The award of the first respondent Labour Court, dated 29.4.2002, made in I.D.No.464 of 1997, is based on the evidence available on record. 15. The learned counsel appearing for the second respondent had stated that the petitioner was doing the work of loading and unloading in Ambattur and Ayanavaram diaries and has worked as an attender in the Ambattur Transport Unit. He has been employed from the year, 1985, on a payment of Rs.35/- per day. The Ambattur Diary Corporation, Chennai, is managed by a Board consisting of State Government Nominees and the representatives of the Ambattur Dairy Corporation. It is a State Government undertaking having the Regional Office and the Branch Office at the Tamil Nadu Co-operative Milk Producers Federation, at Chennai. The second respondent has been working from the year, 1985, for more than 240 days in a year. The petitioner has been receiving the monthly salary from the Ambattur Transport Unit and the Ayanavaram Diary. Thereafter, he had received fortnightly salary from the Ambattur Diary. The nature of work performed by the second respondent is of a permanent nature. Since the products handled by the second respondent were mostly perishable in nature, he was asked to do the work without any break. Even though the second respondent had been performing his duties without any blemish he was not given any employment from the month of November, 1995. His identity card had been taken back and he was terminated from service by an oral order. Therefore, the second respondent had approached the Labour Officer who had submitted a failure report, as the conciliation proceedings had failed. In such circumstances, the second respondent had been constrained to raise an industrial dispute before the first respondent Labour Court, in I.D.No.464 of 1997. 16. The learned counsel appearing for the second respondent had relied on the decision, of this Court, reported in Hindustan Petroleum Corporation Ltd. V. The Presiding Officer, Central Government Labour Court cum Industrial Tribunal (2008 (4) CTC 819), https://hcservices.ecourts.gov.in/hcservices/ to contend that the second respondent is entitled to be conferred with the permanent status, as he had completed 480 days of service in two years, in accordance with the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. 17. The second respondent employee had examined himself as a witness and the petitioners had examined one Venugopal as their witness. The workman had marked two documents, the first being a serious of identity cards and the second document, which is the conciliation failure report. The management had marked 9 documents on its behalf. 18. Based on the evidence available, the first respondent Labour Court had found that the second respondent was in continuous employment with the petitioners for 240 days or more, in two years and therefore, he was considered to be a permanent workmen, in accordance with the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. The fact that the second respondent had been working with the petitioner management, from the year 1987 to 1995, has been accepted. However, it is the contention of the management that the second respondent workman had not rendered continuous service to be eligible for permanent status. The first respondent Labour Court had stated that when the bonus had been paid to the second respondent workman, it would indicate his permanent status. The first respondent Labour Court had shifted the onus on the petitioner management to disprove the claim of the second respondent that he was in continuous service for more than 240 days, in two years and that he had attained permanent status as a workman, under the petitioners. 19. The first respondent Labour Court had also found that no prior notice had been issued to the second respondent and no payment had been made in lieu of the notice. Further, no retrenchment compensation had been paid to him, in accordance with the provisions of the Industrial Disputes Act, 1947. Further, it was found that there was no disciplinary action taken against the second respondent, based on which he was stopped from performing his duties as an employee under the petitioner management. Therefore, the first respondent Labour Court had come to the conclusion that the act of the petitioner management, issuing an oral order, stopping the second respondent from continuing in his employment, is contrary to law. In such circumstances, the first respondent Labour Court had passed an award, dated 29.4.2002, in I.D.No.464 of 1997, reinstating the second respondent in service, with backwages, continuity of service and other attendant benefits. 20. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the second respondent and on a perusal of the records available, it is seen that the first respondent Labour Court had passed the award, dated 29.4.2002, in I.D.No.464 of 1997, on the ground that the second respondent had https://hcservices.ecourts.gov.in/hcservices/ worked for more than 240 days in a year, for two years, during the period of his employment with the petitioners and therefore, the second respondent is entitled to be confirmed in service, in accordance with the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. In the said award, dated 29.4.2002, the first respondent Labour Court had ordered the reinstatement of the second respondent in service, with back wages, continuity of service and other attendant benefits. However, the first respondent Labour Court has not seen as to whether there was a permanent vacancy in a sanctioned post to regularise the second respondent in service. Further, the Rules applicable to such employment have not been considered. There was no occasion for the first respondent Labour Court to find out as to whether the second respondent was appointed after having been sponsored through the concerned employment exchange and as to whether he had the required educational and other qualifications for such employment, as held by the Supreme Court in its various decisions cited supra. Further, the crucial issue with regard to the jurisdiction of the Labour Court, to confer permanent status to a workman, in view of the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, has not been answered by the first respondent Labour Court. 21. In such circumstances, the award of the first respondent Labour Court, dated 29.4.2002, made in I.D.No.464 of 1997, is set aside and the matter is remitted back to the first respondent Labour Court, to be decided, on merits and in accordance with law, taking into consideration the issues noted above. The first respondent Labour Court is directed to dispose of the Industrial Dispute, in I.D.No.464 of 1997, following the due procedures established by law, after giving sufficient opportunity to the petitioners, as well as the second respondent herein, within a period of three months from the date of receipt of a copy of this order. The writ petition is ordered accordingly. Consequently, connected M.P is closed. No costs. 22. The Registry is directed to send a copy of this order to the first respondent Labour Court, expeditiously, along with the relevant records, if any, relating to the matter. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1. The Presiding Officer, 1st Additional Labour Court, Chennai-600 104. https://hcservices.ecourts.gov.in/hcservices/ 2. The Record Keeper, V.R. Section, High Court, Madras. + 1 c.c. to Mr. G. Jeremiah, Advocate. S.R.No.5450. + 1 c.c. to Mr. S. Ravichandran, Advocate. S.R.No.5357. Order in Writ Petition No.2556 of 2003 KK (CO) GSK 12.02.2009. https://hcservices.ecourts.gov.in/hcservices/