IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09/12/2003 CORAM THE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLA W.P.No. 17692 of 1999 and W.P.Nos, 18189, 18190 of 1999, 6484, 6499, 10345, 15567 of 2000, 3963 to 3967, 5322 to 5326, 6498 to 6502, 6822 to 6824, 6847, 6893 to 6897, 7248 to 7252, 12578 to 12585, 23743, 24114, 25708, 26180, 26290, 26249 of 2001, 482, 2482, 2818, 23028, 23032, 24001, 41922 of 2002, 2655, 2768, 2985, 3127, 3254, 3394, 10934, 10961,25708, 27009, 28381, 28437, 29862, 29960 and 32252 of 2003 And W.M.P.Nos.25750, 26497, 26498 of 1999, 10345 of 2000, W.P.M.P.Nos. 3370 to 3377, 9745, 9747, 9749, 9776, 35680, 38702, 38828 of 2001, 762, 3451, 3962, 31756, 31764, 33005 of 2002, 3324, 3483, 3735, 3919, 4085, 4265, 13752, 13784, 15818, 34675, 34748, 36556, 36418, 32989, 32252 of 2003 W.P.No.17692 of 1999: The Superintending Engineer Vellore Electricity Distribution Circle, Gandhi Nagar, Vellore-6. .. Petitioner -Vs- 1. The Labour Inspector, Vellore. 2. V.Bakthavatchalam 3. S.R.Munisamy 4. D.Kannabiran 5. K.Kumaresan 6. S.Suresh 7. P.Subramanian 8. M.Sekar 9. V.Kumaran 10.T.Maniarasan 11.G.Ramesh 12.G.Selvaraj 13.D.Kuppan 14.R.Nagesh 15.A.Pandurangan 16.S.Umapathy 17.K.Dharmendran 18.P.Sankar 19.K.Kumaresan 20.K.Mani 21.S.Senthilkumaran 22.K.Venkatesaperumal 23.G.Vikrammthithan 24.S.Ramesh Babu 25.P.Sakthivel 26.S.Mohan 27.A.Kumar 28.V.Elumalai 29.M.Manoharan 30.A.Saravanan 31.V.Harikrishnan 32.G.Sankar 33.S.Ramu 34.K.Jagadeeswaran 35.R.Mohandoss 36.D.Asokan 37.D.Mohandoss 38.A.Varadhan 39.M.Sathianathan 40.S.Dakshinamoorthy 41.V.Umapathy 42.D.Rajesh 43.P.Palani 44.R.Sampath 45.M.Dhanasekaran 46.R.Arumugam 47.G.Dinakaran 48.P.Lakshmanan 49.S.Sekar 50.K.Umapathy 51.S.Murugan 52.P.Kumar 53.M.Gangadharan 54.M.Jalanathan 55.M.Murugan 56.R.Jaisankar 57.M.Mohamed Basha 58.G.Narasimhan 59.S.Kasi 60.M.Haridoss 61.N.Damodaran 62.V.Loganathan 63.S.Kotti 64.V.Palayam 65.M.Sukumar 66.V.Paul Ramesh 67.V.Vasu 68.S.Damodaran 69.J.Jayachandran 70.N.Narayanamoorthy 71.M.Partheepan 72.K.Munusamy 73.K.Kumaravelu 74.P.Vasanthakumar 75.S.J.Sundaramoorthy 76.R.Muthu 77.K.Gunasekaran 78.J.Jeevarathinam 79.D.Selvam 80.A.Seenivasan 81.A.Murugan 82.S.T.Neelamegam 83.A.Kantharaj 84.S.Vedantham 85.G.Vinayagam 86.R.Kamalanathan 87.A.Sakthivel 88.N.Punniyakotti 89.K.Chandrakanthan 90.M.Perumal 91.J.Harikeerthi 92.P.Mohan 93.N.Kanniappan 94.K.Raja 95.E.Ravi 96.N.Dayalan 97.A.Balasubramani 98.E.Murugesan 99.G.Vijayendran 100.M.Ramamoorthy 101.S.Asokan 102.R.Arumugam 103.K.Munirathinam 104.V.Muthusaravanan 105.S.Sudhakar 106.M.Dakshinamoorthy 107.K.Venkatesan 108.G.Thulasitharan 109.V.Venkatesan 110.K.M.Kathavarayan 111.M.Gangadurai 112.S.Vasudevan 113.S.Palani 114.G.Kannan 115.A.Achuthananthan 116.L.Palaivel 117.K.Meganathan 118.G.Pachaiappan 119.S.Lareence 120.R.Cchandrasekaran 121.K.Subramanian 122.E.Kaverthanan 123.Mohamed Ghouse 124.A.Mohamed Abdulla 125.R.Rajaraman 126.G.Manoharan 127.K.M.Anvazhagan 128.T.Muniyan 129.R.Gopal 130.E.Ravi 131.K.Elumalai 132.T.Bhoopathy 133.P.R.Sampathkumar .. Respondents For Petitioner:: Mr.M.Altaf Ahamed, Addl.Solicitor General of India assisted by Mr.V.Radhakrishnan For Respondents::Mr.MGH Varadarajan, AGP for R1 M. Arumugham for for M/s.Iyer & Dolia -R2 to R133 Mr.N.G.R.Prasad for RR in W.P.No.18189 of 1999 Mr.Balan Haridoss for RR in W.P.No.23743 of 2001 Ms.Geetha for RR in W.P.No.26290 of 2001 :COMMON ORDER In this batch of cases, except W.P.Nos.12578 to 12585 of 2001, all other writ petitions have been filed by the Tamil Nadu Electricity Board, challenging the orders of the respective Inspectors of Labour, in and by which, the said Inspectors of Labour, functioning under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act 1981 and the Rules framed thereunder (hereinafter called 'the Act' and 'the Rules') passed orders, directing the Tamil Nadu Electricity Board to confer permanent status to the respective workmen in these writ petitions as per Section 3 of the said Act. 2. In W.P.Nos.12578 to 12585 of 2001, the concerned workmen through their union seek issuance of a Writ of Mandamus to direct the Tamil Nadu Electricity Board and its officials to implement the order of the Inspector of Labour dated 04.12.2000 and grant monetary benefits in terms of the said order to the seven workmen concerned in those writ petitions. 3. Mr. Altaf Ahmed, learned Additional Solicitor General, while appearing on behalf of the Board has made submissions by referring to the order impugned passed by the Inspector of Labour, the third respondent in W.P.No.24001 of 2002. The learned Additional Solicitor General raised three main contentions. In the first place, he contended that the third respondent passed the impugned order in total misunderstanding of the powers vested in him under the provisions of the Act. In the next place, it was contended that the orders of the third respondent were in breach of the procedure prescribed under the Act. Lastly, it was contended that by passing the impugned order, the third respondent arrogated to himself the powers that are available only with the Adjudicatory Forums constituted under the provisions of the Industrial Disputes Act, 1947. 4. While elaborating on the above said submissions, the learned Additional Solicitor General by referring to Sections 3 and 5 of the Act read along with Rule 6(4) contended that the scope of power and jurisdiction of the third respondent cannot be extended to the extent of granting the relief of conferring permanent status as has been done by the third respondent. By referring to G.O(T) No.616 of Labour and Employment (A1) Department dated 18.07.2000, in and by which the State Government referred the dispute viz., 'the demand of the Union to regularise the service of the Contract Labourers who have put in three to ten years, to the Industrial Tribunal, Chennai, learned Additional Solicitor General argued that the said dispute having been numbered as I.D.No.106 of 2001 on the file of the Tribunal, Chennai, the whole ambit of the issue relating to the regularisation of contract labourers can be considered only in the said dispute, which is the proper forum for dealing with such issues which cannot be done by the third respondent in its limited jurisdiction available under the provisions of the Act. 5. The learned Additional Solicitor General took pains to point out that before the third respondent, the status of the workmen was in the nature of contract labourers and the question about their engagement for continuous period of 480 days in 24 calendar months was also in dispute. According to him, in such a situation the said dispute would fall within the scope of the definition of an 'Industrial Dispute' under Section 2(k) of the Industrial Disputes Act and therefore, such an Industrial dispute could not have been validly adjudicated by the third respondent in his limited jurisdiction. According to the learned Additional Solicitor General, the powers and duties of the third respondent under Section 5 of the Act is limited to the extent of examining the maintenance of registers, records and notices, which cannot be compared to the adjudicatory power vested with the Labour Court or a Tribunal under Sections 11 and 11(A) of the Industrial Disputes Act. According to him, the third respondent as Inspector can only make a spot enquiry and in the event of any defects being noticed in the maintenance of records, he can direct compliance or rectification of such defects and nothing more. By referring to the impugned order of the third respondent, it was further contended that there was absolutely no basic material available for the third respondent to conclude that the concerned workmen had put in more than 480 days in a period of 24 calendar months in order to issue the directions as has been done in the impugned orders. 6. The learned Additional Solicitor General relied upon the judgments reported in 'STEEL AUTHORITY OF INDIA LTD., ..VS.. NATIONAL UNION WATER FRONT WORKERS AND OTHERS' (A.I.R. 2001 S.C. 3527); 'RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER ..VS.. KRISHNA KANT AND OTHERS' (1995 (5) S.C.C. 75); 'C.E.TUTICORIN THERMAL POWER STATION .. VS.. INSPECTOR OF LABOUR, TUTICORIN AND OTHERS' (2002 (9) S.C.C. 752); 'CHANDRAKANT TUKARAM NIKAM AND OTHERS ..VS.. MUNICIPAL CORPORATION OF AHMEDABAD AND ANOTHER' (2002 (2) S.C.C. 542); 'COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANOTHER ..VS.. PADMA RAVINDER NATH AND OTHERS' (2001 (9) S.C.C. 526); and 'NATIONAL ENGINEERING INDUSTRIES LTD., ..VS.. SHRI KISHAN BHAGERIA AND OTHERS' (1988 (Suppl.) S.C.C. 82 )' in support of his submissions. 7. In reply, Mr.N.G.R.Prasad, learned counsel appearing for the concerned workmen in W.P.No.18189 of 1999 submitted that even according to the Board, the concerned workmen were employed to perform regular jobs though styled as 'contract labourers', that under the provisions of the Act, there is no other forum has been provided for the determination of the rights of the workmen vis-a-vis the management and therefore when the provisions under the Act enables the third respondent not only to inspect the establishment, but also to confer permanent status, there was every jurisdiction vested with the third respondent to pass orders impugned in the writ petitions. 8. According to the learned counsel, admittedly even according to the Board, the concerned workmen were employed as contract labourers and therefore, the third respondent while exercising his powers has only gone into the incidental question as to whether they were really contract labourers or their services were utilised as regular workmen in order to grant the consequential relief to them. According to the learned counsel going by the definition of 'workmen' under the Act, the third respondent had to necessarily decide the said question as an incidental one which was certainly permissible by virtue of the various decisions of the Honourable Supreme Court. Learned counsel further contended that though the said exercise cannot be strictly construed as one of adjudication if can be held that what was done by the third respondent was in the nature of an investigation. According to the learned counsel by holding such an investigation and by granting the relief, the third respondent has not conferred any new right but has only crystallised the right which was failed to be recognised by the Board. Learned counsel relied upon the decisions reported in 196 3 (2) L.L.J. 89 (CENTRAL BANK OF INDIA versus RAJAGOPALAN); 'SAHU MINERALS AND PROPERTIES LIMITED ..VS.. PRESIDING OFFICER, LABOUR COURT AND OTHERS' (1975 (2) L.L.J. 341), 'C.E.TUTICORIN THERMAL POWER STATION ..VS.. INSPECTOR OF LABOUR, TUTICORIN AND OTHERS' (2002 (9) S.C.C. 752), and 'NIRCHILIYA AND OTHERS ..VS.. MANAGEMENT OF SAFIRE THEATRE, MADRAS AND ANOTHER' (1991 (I) L.L.J. 111) in support of his submissions. 9. Mr. Balan Haridoss, learned counsel appearing for the workmen in W.P.Nos.23743 of 2001 and 23032 of 2002 contended that while the workmen can be stated to have the right to raise an Industrial dispute cannot be said to have lost their right to claim benefits available under the Act. According to the learned counsel, the Industrial Disputes Act does not preclude the rights available to the workmen under the State Act. Learned counsel also relied upon the Division Bench Judgement of this Court reported in 'METAL POWDER CO., LTD., THIRUMANGALAM AND ANOTHER ..VS.. THE STATE OF TAMIL NADU AND ANOTHER (1985 II L.L.J. 376) wherein the provisions of the Act came to be upheld. 10. Ms. Geetha, learned counsel for the workmen in W.P.No.26290 of 2001 relied upon the judgment reported in 'J.VICTOR ..vs.. G.M., RANI MANGAMMAL TRANSPORT CORPORATION' (1998 (I) L.L.J 312); M/S. MARTIN BURN LTD., ..VS.. T.G.MOORJANI AND OTHERS (1974 L.I.C. 968); ' MANAGEMENT OF PITHAVADIAN PARTNERS, REP. BY ITS MANAGING PARTNER ..VS.. CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT' (1984 L.I.C. 1298 ); and 'CENTRAL INLAND WATER TRANSPORT CORPORATION ..vs.. SECOND LABOUR COURT AND OTHERS)'(1974 I L.L.J. 445). The learned counsel contended that the concerned workmen in that Writ Petition have already been directed to be regularised by Hon'ble Mr. Justice V.Khalid in his report, which report came to be made pursuant to the order of the Hon'ble Supreme Court and in such circumstances, the authority functioning under the Act was fully justified in granting the relief under the provisions of the Act. On behalf of the workmen, reliance was also placed upon the decisions reported in KSB PUMPS LTD., (REP. BY ITS GENERAL MANAGER) COIMBATORE ..VS.. DEPUTY CHIEF INSPECTOR OF FACTORIES, COIMBATORE (2002 (4) L.L.N. 389) AND 1951 I L.L.J. 213. 11. By way of reply, learned Additional Solicitor General submitted that 'investigation' and 'adjudication' are two different concepts, that while under the former something can only be examined, only in the later there is scope for resolving a controversial dispute. The learned counsel also referred to certain passages from the book " Principles of Statutory Interpretation" by Justice G.P.Singh at pages 345 and 529 and contended that where the very status of the concerned workmen to claim the benefit under the Act is in dispute, such a basic controversial question cannot be decided by the Inspector of Labour in his limited jurisdiction available under the provisions of the Act. 12. Having heard the learned counsel and before attempting to examine the correctness of the orders impugned in these writ petitions, I feel it appropriate to examine the provisions of the Act and also some of the decisions cited at the Bar in order to steer clear of the legal position as regards the power of the Inspectors of Labour conferred upon him under the provisions of the Act. The statement of objects and reasons in relation to the Act is to the following effect: "Many workers in industrial establishments are being kept under temporary rolls and on that pretext are being denied of various statutory as well as non-statutory benefits which are given to permanent workers. Mainly, in many establishments non-permanent workers are given consolidated wages which are far below the occupational wages and do not carry the benefit of dearness allowance paid to permanent employees. Similarly they are denied various other benefits like payment of festival, cyclone and marriage advances, payment of ex-gratia over and above the statutory bonus, supply of uniforms and tea, preference for the dependants of the employees in the matter of employment etc., In order to curb various unfair labour practices and following the decision at the 25th meeting of the State Labour Advisory Board the Government have decided to undertake a special legislation to confer permanent status to the workers in various industrial establishments who have put in a service for a period of four hundred and eighty days in a period of twenty four calendar months in such industrial establishments." 13. The preamble to the Act states that it is an Act to provide for the conferment of permanent status to workmen in the industrial establishments in the State of Tamil Nadu. As far as the application of the Act to the Electricity Board is concerned, the same is not in dispute. Section 2(4) of the Act defines a "Workmen" to mean any person employed in any Industrial establishment to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied and includes a Badli workmen. It is common ground that the concerned workmen do not fall within the excluded category. Section 3 of the Act states that notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment should be made permanent. Explanation II of the said Section makes it clear that the term "law" for the purpose of the said section would include any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of the Act. 14. Section 5 of the Act enumerates the powers and duties of Inspectors appointed under Section 4 of the Act. Section 5 of the Act can be extracted for better appreciation, which reads as under:- "Powers and duties of Inspectors: Subject to any rules made by the Government in this behalf, the Inspector may, within the local limits for which he is appointed, - a) enter at all reasonable times and with such assistants, if any, who are persons in the service of the Government or of any local authority as he thinks fit to take with him, any industrial establishment ; b) make such examination of the industrial establishment and of any registers, records and notices and take on the spot or elsewhere the evidence of such person as he may deem necessary, for carrying out the purpose of this Act; and c) exercise such other powers as may be necessary for carrying out the purpose of this Act." 15. Section 7 of the Act specifically provides the non-application of the Act to workmen employed in certain industrial establishments and the Board does not come under any of the said category. Section 9 enables the State Government to exempt conditionally or unconditionally any employer or class of employers or any industrial establishment or class of industrial establishments from the provisions of the Act. But, till date, the Board has not been exempted from the provisions of the Act. Section 10 of the Act empowers the State Government to frame the rules and rules have also been framed by virtue of the said power. Rule 3 prescribes the powers of the Inspector in addition to the power conferred by Section 5 of the Act. 16. Under Rule 6(4) it is provided as follows:- "Any employee who finds his name not entered in the list referred to in sub-rule (2) or finds that the entries have not been made correctly or finds that though entries regarding his service have been made correctly but he has not attested the entries in the register of workmen in Form I may make a representation to the Inspector concerned. The Inspector after examining the representation to the Inspector concerned. The Inspector after examining the representation or after making enquiries may issue suitable directions to the employer for the rectification of the register in Form I or for the issue of orders conferring permanent status to the workman concerned." (Emphasis added) By virtue of Rule 6(1), every employer of an Industrial establishment shall maintain a register of workmen in Form I and shall produce the register whenever it is required by the Inspector having jurisdiction over the industrial establishment. Under Rule 6(3), every employer should send a copy of the up to date list so compiled under sub-rule (2), to the Inspector concerned within 15 days from the expiry of the half year ending with June and December giving the details about the workmen whose names are maintained in Form I. 17. The validity of the above said Act came up for consideration before the Division Bench of this Court in the judgment reported in ' METAL POWDER CO., LTD., THIRUMANGALAM AND ANOTHER ..VS.. THE STATE OF TAMIL NADU AND ANOTHER' (1985 II L.L.J. 376). One of the submissions made before the Division Bench was that as against the order of Inspector, there is no provision for appeal. While dealing with the said contention, the Division Bench ultimately held as under in para 23:- "23. .... Even the Statute does not make it final and if and when a question arises as to whether the workman is entitled to certain benefits as a permanent workman and a claim is made on the basis of the decision of the Inspector, it is obvious that the decision of the Inspector being summary in nature, the controversy can be properly determined in the appropriate proceedings which may be taken either by the employer or by the workman." 18. While dealing with the power of the Inspector vis-a-vis the benefits to be conferred under Section 3 of the Act, the Divison Bench has held as under in para 20:- "20. ... The learned Advocate General has, therefore, contended that the function of the Inspector consists only of perusing the registers that are maintained by the employers and consequently, there is no vagueness about ascertaining the periods required to be ascertained for the purpose of Section 3, Sub-Ss.(1) and (2). It is obvious to us that the factors enumerated in Section 3(2) do not require any long procedure for determination. The absence of the workmen can be ascertained from the registers maintained by the employer. Prima facie, the legality or illegality of a strike can also be ascertained depending upon whether the concerned statutory provisions have been complied with or not. All these can properly become the subject matter of the enquiry which is contemplated in Rule 6(4) of the Rules. The stand taken by the learned Advocate General and Mr. Chandran is that the Inspector will give enough opportunity to the employer to put forth his case and produce the necessary material. The latter part of Rule 6 (4) clearly provides that, the Inspector, after examining the representation or after making enquiries, may issue suitable instructions to the employer for the rectification of the Register in Form I or for issue of orders conferring permanent status on the workmen concerned. Form I contains the proforma of the Register of workmen which has to be maintained by the employer. The information incorporated therein is useful for ascertaining whether the workman is entitled to the benefits of the Act. These columns have to be filled by the employer himself and only if there is a doubt about the correctness of the entries in this register, an enquiry will become necessary. Similarly, the Inspector has to be furnished with the necessary details in form II which will enable him to ascertain whether the law is being complied with or not. We do not find there is anything vague or uncertain in the Act or the Rules which will create difficulties in the implementation of the Act, requiring the provisions of the Act to be struck down." (Emphasis added) 19. Again as regards the order to be passed by the Inspector of Labour while exercising his powers under Rule 6(4), the Divison Bench has held as under in para 25:- "25. ....Relying on this decision, Mr. Somayaji has argued that we must read the requirement to make a speaking order in Rule 6(4), when Rule 6(4) provides that the Inspector should examine the representation of the employee and must make the necessary enquiries. This argument must be accepted because, when the Inspector has to determine whether the workman is entitled to the benefit of Section 3 and when the employer contests this right, he has to make the necessary enquiries and these enquiries must culminate in a speaking order disposing of the contentions of the employer and the workman. Whether it is the workman's case or the employer's case which is accepted, the Inspector will be bound to give reasons as to whey he is accepting or rejecting the case of either party". (Emphasis added) 20. The above said judgment of the Division Bench of this Court was challenged before the Hon'ble Supreme Court and the Supreme Court also confirmed the decision of the Division Bench as reported in ' STATE OF TAMIL NADU AND OTHERS ..VS.. NELLAI COTTON MILLS LTD., AND OTHERS' (1990 (2) S.C.C. 518). In fact, the challenge made by the State was only in respect of that part of the order of the Division Bench, which held that explanation to Section 3 was incapable of enforcement and was consequently held to be redundant. The Supreme Court by taking note of the subsequent validation made after the judgment of the Division Bench upheld the order of the Division Bench. 21. In this context, it is also relevant to refer to the judgment of Hon'ble Mr. Justice P.SATHASIVAM in W.P.No.9729 of 2002 dated 20.08 .2003 wherein the learned Judge following his earlier order in W.P. No.6171 of 1998 etc., batch dated 20.12.2000 dismissed the writ petitions filed by the Electricity Board against similar orders confirming permanent status to certain other workmen. In fact, a Division Bench of this Court in its order dated 24.11.1997 in W.A.No.1445 of 1997 also rejected the claim of the petitioner / Board in challenging similar order of the authority under the Act by holding that there is a statutory obligation on the Board to confer permanent status to concerned workmen. The said order of the Division Bench was challenged before the Hon'ble Supreme Court and the Supreme Court also confirmed the order of the Division Bench in the judgment reported in 'C.E. TUTICORIN THERMAL POWER STATION ..VS.. INSPECTOR OF LABOUR, TUTICORIN AND OTHERS' (2002 (9) S.C.C. 752). However, in respect of some of the workmen, the Hon'ble Supreme Court held that since the identity relating to them was not made available, the relief granted by the authority cannot be sustained. 22. Reliance placed upon the judgment of the Hon'ble Supreme Court reported in STEEL AUTHORITY OF INDIA LTD., ..VS.. NATIONAL UNION WATER FRONT WORKERS (A.I.R. 2001 S.C. 3527) was for the aspect viz., that in respect of a contract labourer, when the question arises whether the contractor has been interposed as a genuine contractor or was