IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.12.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.23704 OF 2010 AND M.P.NOS.1 & 2 OF 2010 1.S.Aruldoss 2.P.Kanagavel .. Petitioners Versus 1.Neyveli Lignite Corporation Limited Rep.by its Chairman cum Managing Director Corporate Office Neyveli – 607 801 Cuddalore District. 2.The Director (Personnel) Neyveli Lignite Corporation Limited Corporate Office Neyveli – 607 801 Cuddalore District. 3.The Chief General Manager Neyveli Lignite Corporation Limited Personnel and Administration Department Neyveli – 607 801 Cuddalore District. .. Respondents PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to confer the petitioners permanency and absorb them as permanent workers with time scale of pay and all other attendant and consequential benefit from the date of joining award costs. For Petitioners : Mr.V.Ajoy Khose For Respondents : Mr.N.A.K.Sarma O R D E R The Writ Petition has been filed by the petitioners seeking a writ of mandamus, directing the respondents to confer the permanency and absorb them as permanent workers with time scale of pay and other consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ 2.It is the case of the petitioners that they have been employed on a daily rated wages by the respondents. It is the further case of the petitioners that they have been in employment for more than 10 years. Since the petitioners have been in employment continuously for more than 10 years, they have not been made as permanent by regularising their services. The petitioners gave representations to the respondents on 19.02.2010 and 24.09.2010. Since no orders have been passed, the petitioners have come forward to file the present writ petition. 3.As contended by the learned counsel for the respondents, the Writ Petition as filed is not maintainable in law. The question as to whether the petitioners have put in a required number of service with the respondents is a dispute question of fact which cannot be decided by this Court under Article 226 of the Constitution of India. This Court in AN MOKAMAD JINNA (FORMERLY A.MOHAMED ALI JINNA vs. GENERAL MANAGER (REGIONAL SERVICES) (FORMERLY EXECUTIVE DIRECTOR) INDIAN OIL CORPORATION LTD., MADRAS [2006 (1) L.L.N. 758], considering the very same issue has held as follows: "5.In determining the relationship of a person with an employer, viz., whether he is an employee or a contractor all relevant facts and circumstances are required to be considered including the terms and conditions of the contract. Originally the test utilised by the Courts for determining whether a person was an employee or an independent contractor was the supervision and control test under which it was held that while a contractor is only told what to do, an employee is also told how to do it, i.e., the mode and the manner in which the work to be done. The aforesaid supervision and control test broke down in certain cases, e.g. The captain of a ship and this paved way for the other tests, e.g., part and parcel of the organisation test or integration test by which the relationship is determined by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relevant for this purpose are – who has the power to select and dismiss, to pay remuneration, supply tools and materials, etc. vide [2004 (2) L.L.N. 68], Workmen of Nilgiris Co-operatives Marketing Society v. State of Tamil Nadu, [2004 (1) L.L.N. 511], Ram Singh and others v. Union Territory, Chandigarh. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be https://hcservices.ecourts.gov.in/hcservices/ raised and proved before the industrial adjudicator and the same cannot be gone into by this Court under Art.226 of the Constitution. Hence, the appellant/petitioner is at liberty to approach the appropriate authority by raising an industrial dispute under the Industrial Disputes Act and if he does so, the same will be decided expeditiously. With these observations, the writ appeal is dismissed. Connected W.A.M.P.Nos.1642 and 1643 of 2005 are closed." 4.Considering the ratio laid down by the Division Bench of this Court, this Court is of the view that Writ Petition as filed is not maintainable in law. However, in as much as the petitioners have given representations to the respondents on 19.02.2010 and 24.09.2010, the respondents are directed to dispose of the said representations. The petitioners are directed to furnish the copies of the representations said to have been given by them along with a copy of this order, within a period of two weeks from the date of receipt of a copy of this order. The respondents are directed to dispose of the said representations, on merits and in accordance with law, within a period of six (6) weeks thereafter. Till the final orders are passed by the respondents, the status quo as on today shall be maintained. It is made clear that this Court does not express anything on the merits of the case and it is always open to the respondents to consider the representations of the petitioners in the manner known to law. It is also open to the petitioners to give additional representations as well to the respondents. 5.With the above observations, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sri To 1.The Chairman cum Managing Director Neyveli Lignite Corporation Limited Corporate Office Neyveli – 607 801 Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/ 2.The Director (Personnel) Neyveli Lignite Corporation Limited Corporate Office Neyveli – 607 801 Cuddalore District. 3.The Chief General Manager Neyveli Lignite Corporation Limited Personnel and Administration Department Neyveli – 607 801 Cuddalore District. 1 cc To Mr.N.A.K.Sarma, Advocate, SR.90147. 1 cc To Mr.V.Ajay Khose, Advocate, SR.89787. W.P. NO.23704 OF 2010 RB(CO) RVL 03.01.2011 https://hcservices.ecourts.gov.in/hcservices/