IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 01.07.2008 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA Writ Appeal No.171 of 2008 S.R.F. & S.R.F.Polymers Employees Union (Regn.No.821/MDS) rep.by its President V.Prakash PlotNo.11, Bharathiar Street Vimalapuram, Manai, Chennai- 600 068. ..... Appellant v. 1.State of Tamilnadu rep.by its Secretary Department of Labour & Employment Fort St.George, Chennai- 600 006 2.The Chief Inspector of Factories Chepauk, Chennai – 600 006 3.The Inspector of Factories, Thiruvotriyur, Chennai – 600 019 4.M/s.S.R.F.Limited rep.by its Vice President Manali Industrial Area Manali, Chennai – 600 068. .... Respondents Writ Appeal filed under clause 15 of the Letters Patent against the order of the learned single Judge dated 30.8.2007 made in Writ Petition No.20862 of 2007. WP 20862/07:Writ Petition filed under Article 226 of the constitution of India, praying for the issuance of writ of Mandamus, directing the first and second respondents to ensure that the provisions of Factories Act, 1948 are duly observed in the factory of the 4th respondent company at Manali and that the learners and contract workers are not engaged in direct manufacturing processes in the factory and issue such other orders. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.V.Prakash Party in Person For Respondents : Mr.Sanjay Mohan for M/s.S.Ramasubramaniam and Associates for R.4 Mr.K.balasubramaniam,Spl.G.P- R1toR3 JUDGMENT K.RAVIRAJA PANDIAN, J. The appeal is is filed questioning the correctness of the order dated 30.8.2007 made in Writ Petition No.20862 of 2007. In the said writ petition, the appellant herein sought for the relief of issuance of writ of mandamus directing the respondents 1 to 3 to ensure that the provisions of Factories Act, 1948 are duly observed in the factory of the fourth respondent company at Manali and that the learners and contract workers are not engaged in direct manufacturing process in the factory. 2. The above relief has been sought for on the basis of the following facts: The fourth respondent Company is manufacturing nylon tyre fabric and nylon fabric for fish nets at its factory at Manali. The appellant trade Union is the only trade union in the factory representing all the 244 permanent workers. On 15.12.2005, 150 trainees and apprentices were stopped from service. The fourth respondent Management has been steadily reduced permanent work force and simultaneously increased the trainees with an intention to gradually substitute the entire permanent work force in the factory with that of the learners and contract workers. The appellant Union objecting the same, on 20.3.2007, made a representation to the Chief Inspector of Factories,. Chennai – the second respondent bringing forth the fact that the Management is acting in gross violation of the provisions of the Factories Act and standing orders of the Company. Pursuant to the same, the Inspector of Factories conducted an inspection on 4.4.2007 and sent a letter dated 20.4.2007 stating that at the time of inspection there were no trainees or apprentices found working in the factory. In respect of certain other violations that were found during inspection, after issuance of the show cause notice to the Management, criminal proceedings have also been initiated. But in respect of the allegation that the Management is gradually substituting trainees in the place of permanent workers, the appellant was informed that the authorities under the Factories Act are not proper authorities, and the appellant could work out his remedy before the appropriate authorities concerned. Not satisfied with the order above referred to, the appellant union filed the writ petition seeking the prayer as stated above. https://hcservices.ecourts.gov.in/hcservices/ 3. By reason of the impugned order, the writ petition has been dismissed holding that (a) the grievance of the appellant regarding reduction of permanent work force and employment of trainees in their place is pending conciliation before the Conciliation Officers and the appellant could prosecute the same if they so advised. (b) there could be no complaint against respondents 1 and 3 in respect of the grievance of the appellant, which is not within their purview. (c) The powers of the Inspector of Factories under Factories Act, 1948 is defined under Section 9, which did not empower the Inspector of Factories to decide the matter in issue. On the above reasoning and having regard to the admitted fact that in respect of the reduction of permanent work force and substituting the trainees in their place, the appellant union initiated proceedings under the provisions of the Industrial Disputes Act and the same is pending for conciliation non-suited the appellant for the relief as prayed for. 4. Mr.Prakash – the party in person raised a point for consideration before us in the form of proposition of law to the following effect: "Whether the report of the Inspector of Factories is final or whether High Court cannot appoint an Advocate Commissioner to find out the true position existing in the factory?" In line with the above proposition, he argued the matter and relying on the decision of the Supreme Court in the case of BANDHUA MUKTI MORCHA VS. UNION OF INDIA AND OTHERS reported in AIR 1984 SUPREME COURT 802, which has been countered by Mr.Sanjay Mohan, learned counsel appearing for the fourth respondent and the counsel appearing for the respondents 1 to 3. 5. When this Court posed a question as to how the above point has been answered in the impugned order, Mr. Prakash explained that along with the writ petition, the appellant filed an application for appointment of Commissioner also and this Court has also appointed a Commissioner at the time of admission of the writ petition and the Commissioner pursuant to the order of this Court visited the factory premises of the fourth respondent and submitted a report. The report exhibits the true state of affairs prevailing in the factory about the employment of trainees in the place of permanent work force. But that report has been rejected by the single Judge on the reasoning that the prayer as sought for cannot be granted. 6. The factum of appointment of the advocate Commissioner and filing of his report has not been disputed by the respondent. However, on a reading of the order impugned in this appeal, it is clear that the proposition now raised in the appeal has not been raised before the learned single Judge. There is absolutely no https://hcservices.ecourts.gov.in/hcservices/ discussion, what so ever, about the point now raised. There is no reference that such an argument was advanced while arguing the writ petition. In the absence of any argument advanced about the finality or otherwise of the report of Inspector of Factories and as to the power of this Court to appoint an Advocate commissioner and in the absence of any finding rendered on the point in issue, Can an appeal is maintainable? We afraid we have to answer the question in negative. 7. The appeal can be entertained only to see whether the order impugned therein is passed in accordance with law meeting all the points raised or it requires interference. The point raised in this appeal is, as to whether the report of the Inspector of Factories is final and whether the High Court can appoint an advocate commissioner for appraisal of the true position prevailing in the factory, is not at all a point for consideration in the impugned order. If at all the appellant is so advised, he can take recourse to have a finding on the question of law from the learned single Judge as per the procedure known to law. Useful reference can be had to the judgment of the Supreme Court in the case of Mohd. Akram Ansari v. Chief Election Officer,(2008) 2 SCC 95, at page 98, wherein the Supreme Court held thus: ".... 14. In this connection we would like to say that there is a presumption in law that a judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a court, the presumption is that that point was never pressed before the learned judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the court concerned to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the court below, has not been dealt with in the judgment of the court below. The party who has this grievance must approach the same court which passed the judgment and urge that the other points were pressed but not dealt with. https://hcservices.ecourts.gov.in/hcservices/ As we have concluded that the point raised in the appeal cannot be allowed to be raised, the decision relied on by Mr.Prakash has not been taken up for discussion. 8. For the foregoing reasons, the writ appeal is liable to be dismissed and the same is accordingly dismissed. However, there is no order as to costs. Consequently, the connected M.P.No.1 of 2008 is also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk To 1. The Secretary Department of Labour & Employment State of Tamilnadu Fort St.George, Chennai- 600 006 2.The Chief Inspector of Factories Chepauk, Chennai – 600 006 3.The Inspector of Factories, Thiruvotriyur, Chennai – 600 019 +1cc to Government Pleader Sr 33816 +1cc to Mr.V.Prakash Party in Person, Sr 33525 KJ (CO) km/7.7. W.A. No.171 of 2008 https://hcservices.ecourts.gov.in/hcservices/