IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2010 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL W.P.No. 35893 of 2003 and W.P.M.P.No.43617 of 2003 The Management of Sri Ganapathy Mills Company Limited, Madurai Road, Sankar Nagar, Tirunelveli, represented by its Managing Director, K.Vee.Rajendiran ... Petitioner Vs 1.The Deputy Chief Inspector of Factories, Authority Under the Tamilnadu Industrial Establishment (Conferment of Permanent Status to Workmen), Tirunelveli. 2.T.Subramaniyan ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for a writ of certiorari, to call for the records of the first respondent made in R.O.C.No.A1/11732/2001, dated 21.10.2002 and quash the same. For Petitioner : Mr.N.Umapathy For Respondents : Mr.Senthilkumar, Additional Govt. Pleader for R1 Ms.Girija for R2 ORDER The petitioner/Mills has filed this Writ of Certiorari https://hcservices.ecourts.gov.in/hcservices/ praying for issuance of a direction from this Court, to call for the records of the first respondent in R.O.C.No.A1/11732/2001, dated 21.10.2002 and quash the same. 2.The second respondent/Employee has filed a petition in R.O.C.No.A1/11732/2001 before the first respondent/Deputy Chief Inspector of Factories, Tirunelveli, claiming permanent status in the petitioner's Mills. The first respondent/authority has allowed this petition filed by the second respondent/employee on 21.10.2002 and has further directed that the second respondent/employee should be made permanent by the petitioner/Mills with effect from 03.12.1985 in the petitioner's Mills and added further has also issued a direction to the petitioner's Mills as per the Rule 4 of the Tamilnadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, to comply with the order immediately and to report compliance of the same to him within seven days from the date of receipt of a copy of this order. 3.The learned Senior Counsel for the petitioner/Mills submits that first and foremost, the first respondent/authority has not taken into consideration of the fact that as per Section 36(A) of the Industrial Disputes Act, the application seeking for certain clarifications in regard to the Award passed by the Labour Court, Tirunelveli in I.D.No.420 of 1992, dated 01.09.1994, is pending before the State Government and in the mean while, the second respondent/employee has projected a petition in R.O.C.No.A1/11732/2001 before the first respondent, claiming permanent status in the mills and erroneously, the first respondent/authority has relied on the Award passed by the Labour Court in I.D.No.420 of 1992, dated 01.09.1994 and resultantly, allowed the petition filed by the Employee and the second respondent/employee cannot take a stand that the Award passed in I.D.No.420 of 1992 conferred in the permanent status when the petitioner/Mills denied the same and moreover, the first respondent/authority was misguided to the effect that the second respondent/employee should be given protection under the Tamilnadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 and only on the basis of documentary or oral evidence such as Pay Slips, Attendance register or other relevant documents of the Mills, the first respondent/authority should have based his conclusion while passing the impugned orders in R.O.C.No.A1/11732/2001, dated 21.10.2002 and unfortunately in the instant case on hand, such a procedure was not resorted to by the first respondent/authority and therefore prays for allowing this writ petition in the interest of Justice. 4.It is to be noted that in I.D.No.420 of 1992 filed by the second respondent/employee an Award dated 01.09.1994 has been passed by the Labour Court, Tirunelveli to the effect that the https://hcservices.ecourts.gov.in/hcservices/ second respondent/employee is entitled to the relief of reinstatement with back wages with continuity of service and other attendant benefits. Significantly, in Paragraph 10 of its Award, the Labour Court has among other things made the following observation; '... Therefore, the petitioner is entitled to seek the protection of Section 3 of the Tamilnadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. This petitioner has been denied job as we have been already. Before the denial of job, admittedly no enquiry was conducted. In these circumstances, the petitioner is entitled not only for reinstatement but also with back wages with continuity of service and other attendant benefits. Hence, the points are answered in favour of the petitioners and against the respondent.' 5.Before the first respondent/competent authority, the second respondent/employee has enclosed an Annexure wherein for the period from March 1984 to February 1986 he has given details of the number of days during which he has worked and also he has given reference to the seven days National Festival Holidays during 1985, during 2 days local holidays and leave with wages for 12 days and aggregating in all the total number of days during which he has worked comes to around 518 ½ days. He has also pointed out that the date of completion of 480 days is 02.12.1985 and the date of which he is to be made permanent is also on 03.12.1985. 6.At this stage, a perusal of the order dated 21.10.2002 passed by the first respondent/authority shows that the authority has come to the resultant conclusion that the second respondent/employee has worked for more than 480 days in a continuous period of 24 calendar months and completed 480 days on 02.12.1985. 7.It is apt for this Court to point out that Section 36(A) of the Industrial Disputes Act speaks of the power of the appropriate Government to remove difficulties viz., in difficult or doubt which arise as to the interpretation of any provision of a Award or Settlement, then it can refer the issue to such Labour Court, Tribunal or National Tribunal as it deems fit and proper is based on the facts and circumstances of the case. Even though a plea is taken on behalf of the petitioner/Mills that clarifications as per the Section 36(A) of the Industrial Disputes Act is pending before the Government in regard to the interpretation of Award passed by the Labour Court, Tirunelveli in I.D.No.420 of 1992, dated 01.09.1994, this Court is of the considered view that there is no embargo on the part of the first respondent to proceed further in https://hcservices.ecourts.gov.in/hcservices/ the matter in regard to the petition filed by the first respondent/employee praying for an issuance of an order conferring him the permanent status and in fact the first respondent has rightly proceeded with the hearing of the petition in R.O.C.No.A1/11732/2001. 8.It is to be borne in mind that a workman/employee who has to be in a continuous service of 480 days in 24 calendar months must be conferred with the permanent status in an establishment as per the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981. In fact, a power is conferred on the State Government to apply the provision of this Act, by means of an appropriate notification to any industrial establishment employee such a number of workmen less than 20 as may be specified in the notification. Also, the Inspectors appointed in the Act do have a necessary powers to require any employer to supply or sent any return or true copy of any document or information pertaining to the provisions of the Act. Furthermore, every employer is also required to maintain in Tamil or in English a register of workman in Form-I prescribed under the rules and also compiled and exhibit the list of workmen with relevant details for perusal of the workman. Also, such list will have to be sent by the Inspector within a fortnight from each of year with a declaration, it has been exhibited in the examination of the perusal of the workman and the mills who sent half yearly return in Form-II at the end of each of the year. 9.As far as the present case is concerned, it is the specific case of the second respondent/employee that he has worked for total number of 518 ½ days in the petitioner/Mills and therefore, he should be conferred with the permanent status of a workman in the petitioner's Mills. Though in the Annexure to the petition filed before the first respondent authority, the second respondent/employee has given the details of a number of days he has worked month war of a respective years like 1984 and 1985, the same has not been repudiated by the Management/Mills. However, on perusal of the files produced by the first respondent/authority, it is clear that the written arguments have been filed on the side of the petitioner's Mills before the authority wherein at Paragraph 9 it is mentioned as follows; 'Section 3 of the permanent status Act provides for the authority under the said Act to confer the permanent status to workman as provided under Section 5 after making such examination of the records, taking evidence.' 10.In law, the initial onus of establishing a fact by a party cannot be shifted, though the burden of proving facts and circumstances lying within the knowledge of a party rests on that https://hcservices.ecourts.gov.in/hcservices/ party. Also, the facts especially within the knowledge of the any person means such knowledge must be in the nature of something strange. The term 'Especially' denotes facts that are pre- eminently within one's knowledge as opined by this Court. Suffice it, for this Court to point out that when a fact to be proved (whether affirmative or negative) is peculiarly within the knowledge of the party, it must be proved by the party. In the present case on hand, the second respondent/employee has categorically stated that he has worked in all for 518 ½ days as mentioned by him in the Annexure to the petition filed before the first respondent/authority and therefore only after rebutting the same, the burden shifts on to the side of the petitioner. Merely contending that the first respondent/authority should have taken evidence of the parties concerned in regard to the number of days worked or the authority should have summoned relevant records from the mills to satisfy itself as to the correctness or otherwise to the claim made by the employee are not accepted by this Court because of the simple fact that this Court is of the considered view that even otherwise of summoning the records or examining the parties by permitting to adduce evidence the authority can go into the issue of conferment of permanent status to the second respondent/employee based on the details provided by him in the Annexure to the petition which has not been repudiated/displaced by the petitioner/Mills in any way to the satisfaction of this Court. 11.Continuing further, admittedly the petitioner/Mills has not been exempted by the Government from the provisions of the Factories Act, 1948. When the second respondent/employee has categorically mentioned in his petition and that in too Annexure that he worked for 518 ½ days from March 1984 to February 1986 and all the more when he has satisfied the authority that he has worked in the petitioner's Mills from March 1984 to December 1985 and rendered a continuous service of 480 days, then he is entitled to seek the remedy under the Act and accordingly, he has filed a petition before the first respondent/authority and rightly the first respondent/authority has come to an inevitable conclusion that the second respondent/employee is entitled to get the benefits of conferment status as per the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 and looking at in from any angle, this writ petition is devoid of merits and the same fails. https://hcservices.ecourts.gov.in/hcservices/ 12.In the result, this writ petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed by the first respondent/authority in R.O.C.No.A1/11732/2001, dated 21.10.2002 is affirmed by this Court for the reasons assigned in this writ petition. Consequently, the connected W.P.M.P.No.43617 of 2003 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps To The Deputy Chief Inspector of Factories, Authority Under the Tamilnadu Industrial Establishment (Conferment of Permanent Status to Workmen), Tirunelveli. +1cc to Govt. Pleader Sr 4606 +1cc to Mr.S.Girija, Advocate Sr 4436 +1cc to Mr.S.Silambanan, Advocate Sr 4849 VS(CO) km/5.2. W.P.No. 35893 of 2003 and W.P.M.P.No.43617 of 2003 https://hcservices.ecourts.gov.in/hcservices/