IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.7019 of 2001 The Management of Bikkatty Indl. Co-op. Tea Factory Ltd., Bikkatty Po., The Nilgiris, Pin 643 209, rep. By its Managing Director. ... Petitioner Vs 1.The Deputy Chief Inspector of Factories, Coimbatore -12. 2.S.C.Sankaran ... Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records of the first respondent in Application No.844/2000 and quash its order dated 12.02.2001 to the extent it directs the petitioner to engage the second respondent as Clerk. For Petitioner : Mr.John for Mr.T.S.Gopalan and Co., For Respondents : Mr.P.Subramanian,A.G.P. for R1 Mr.R.Sivakumar for R2 O R D E R Heard both sides. 2. The petitioner is the Management of Bikkatty Industrial Co-operative Society Tea Factory Limited. They have come forward to file the present writ petition, seeking to challenge the order of the Deputy Chief Inspector of Factories/first respondent dated 12.02.2001. 3. The writ petition was admitted on 11.04.2001. Pending the writ petition, this Court granted an order of interim stay. Subsequently, when an application for vacate stay was filed by the second respondent, the same was dismissed and the interim stay was made absolute on 12.12.2001. https://hcservices.ecourts.gov.in/hcservices/ 4. On notice from this Court, the second respondent had filed an additional affidavit. 5. By the impugned order, the first respondent being the authority under the provisions of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, directed the petitioner to confirm the services of the second respondent as a clerk in a permanent capacity. 6. The case of the second respondent/workman was that he joined the tea factory on 08.10.1993 and he was employed as a Worker from October 1993 to April 1994. Thereafter, he was utilised for collecting leaves. The workman was a Diploma Holder in Co-operation and therefore his services were utilised in the office from May 1994 for doing clerical work. Subsequently during May 1999, he was once again sent for leaf collection work and even that work was denied from January 2001. The petitioner is a Co-operative Society running a tea factory and it collects green leaves from its members. There were 8 centres in the villages around the factory and the members used to deposit the green leaves to those centres and two lorries belonging to the Society used to go around for collecting the green leaves and brought back to the factory. Normally one worker from the factory will go to one centre for the aforesaid work. There are 35 permanent workers employed in the factory for manufacture of tea. Out of 35 workers, 8 will be going for collection of tea leaves. During the peak season, more number of workers used to be deputed. In that office of the factory, there were two non-permanent staff including the second respondent and there were six other regular staff. Since the permanent staff in the office were given scale of pay and other allowances whereas the second respondent was not given those benefits but paid only Rs.70/- per day on a monthly basis. No proper records were maintained for such payment. The tea manufactured by the factory are sold at Coonoor. It is under these circumstances, the second respondent moved the Inspector under Tamil Nadu Act 46/81 for getting permanent status in the office premises. 7. The application filed by the second respondent was taken on file as N.A.No.844 of 2000 and notice was issued to the Management. The petitioner/Management contended that the second respondent was not a clerk and he was in the production side. The first respondent rejected the stand and held that the report of the Inspector of Factories shows that the second respondent was engaged in clerical work. The Management had stated that weighing of tea leaves, giving receipts and also maintain the registers of the members were done on the production side. Even assuming that this work was done on the production side, the work relating to going to the bank, drawing amounts, distributing to the members and also to record the thrift fund, small savings in the register and every members monthly transactions were also https://hcservices.ecourts.gov.in/hcservices/ maintained in the register. These work were also done by the second respondent. The first respondent found that from May 1996 till April 1998 for the period of 24 calendar months, the second respondent worked for more than 540 days and therefore, the second respondent was eligible for confirmation. The Management witness Arulanantham in his evidence had stated that he cannot specifically point out as to the nature of work done by the second respondent. Depending upon the exigency of the work, the work will be allotted to second respondent. But however, he was not engaged in clerical work. Therefore, the first respondent doubted the statement of the witness. After finding that the report of the Inspector of factories in favour of the second respondent, the Labour Court had directed the confirmation. In the report dated 02.02.2000, the Inspector of Factories had recorded that he has been maintaining the office register and distribution of money. Even in the industrial dispute raised before the Labour Court in I.D.No.425 of 2001, the Management in the Joint memo had stated that the workman will be provided work in the production/manufacturing side without backwages. Similarly, in the report sent by the Managing Director of the petitioner Factory to the Managing Director at Coonoor, there was a reference that the second respondent was a temporary employee working in the office and along with him four temporary employees were functioning. Only when there were some irregularities, by a Board resolution a decision was taken that the workers should not be engaged in clerical work. If the second respondent alone is allowed to do office work, the other seniors will claim the status and they will also raise industrial disputes which will lead to industrial unrest. 8. Mr.John, learned counsel for the petitioner Management brought to the notice of this Court an order passed by this Court in W.P.No.12649 of 2001 dated 20.07.2009 wherein in a similar circumstances this Court held that the workman will be given permanent status but not as a Junior Assistant. Therefore, he submitted that they have no objection for conferment of permanent status as a worker but not as a clerical staff. This Court is not inclined to accept the said submission. 9. When the entire exercise of the second respondent was to get permanent status in the clerical work and not as an ordinary worker and the second respondent had proved to the satisfaction of the authorities that he was in effect doing clerical work, therefore he should be made permanent only in the clerical side. Whatever may be the administrative difficulty of the petitioner, that cannot defeat the rights of the workman under Tamil Nadu Act 46 of 1981. 10. Though the learned counsel for the petitioner also brought to the notice of this Court the judgment of the Supreme Court in Catering Cleaners of Southern Railways v. Chief https://hcservices.ecourts.gov.in/hcservices/ Commercial Superintendent, Southern Railway reported in 1990-LIC- 1936 SC and contended that for the purpose of granting permanent status, there must be a pre-existence of a permanent post. It is not clear as to how the said judgment will have any relevance to the case on hand. That was a case relating to Government servant and in that context, the said judgment was rendered. 11. In the present case, the conferment of permanent status on workman does not depend upon pre-existence of any post. Section 3 of the Act confers automatic declaration if a worker works more than 480 days during the period of 24 calendar months, he is deemed to have become permanent. Therefore, it does not require existence of a post. Though the management had attempted to contend that the worker is eligible to get permanent status but not in the post of clerical staff, if accepted, then it will be doing violence to the order passed by the first respondent. Since the second respondent's services was engaged only as a clerical staff, he cannot be denied the permanent status of a clerical staff. The contention that there are other persons in the factory who may stake claim for the post of clerk cannot defeat the case of the petitioner. It is only the petitioner who had moved the authority and got a successful order. Therefore, this Court is not concerned with the possible claim that may arise in this regard. Even if in their cases they are able to satisfy the authority they also can get similar declaration. It is suffice to state that the order of the authority do not suffer from any irregularity or infirmity. 12. In the light of the above, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. svki To The Deputy Chief Inspector of Factories, Coimbatore -12. 1 cc to Mr.R. Sivakumar, Advocate, SR. 20685 1 cc to Government Pleader, Sr. 20423 1 cc to Mr.M.V. Venkataseshan, Sr. 20054 1 cc to Mr.T.S. Gopalan, Advocate SR. 20195 W.P.No.7019 of 2001 TRM (CO) kk 6/4 https://hcservices.ecourts.gov.in/hcservices/