IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-06-2010 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NO.209 OF 2006 AND WPMP.NO.254 OF 2006 The Divisional Manager Ryan Tea Division The Tamil Nadu Tea Plantation Corporation Limited Valparai – 642 106. ... Petitioner Vs. 1. The Inspector of Plantations Valparai. 2. M. Mohamed ... Respondent Writ 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 R.C.No.284/01 and quash its order dated 10.3.2005. For Petitioner : Mr. John for M/s. T.S.Gopalan & Co., For Respondent No.1 : Mr. R. Murali, Govt.Advocate For Respondent No.2 : Mr. J.Saravanavel O R D E R The management of Ryan Tea Division, Tamil Nadu Tea Plantation Corporation Limited, Valaparai has challenged the order passed by the first respondent, giving conferment of permanent status to the second respondent from 1.1.1999, by order dated 10.3.2005. 2. The case of the petitioner-management is that the second respondent was working as a casual worker in the Tea Estate, Valparai. He preferred a claim of permanent status in Case No.284/2001 before the first respondent contending that he worked for more than 480 days during the period from 1.1.1997 to https://hcservices.ecourts.gov.in/hcservices/ 31.12.1998 and therefore, he is entitled to get permanent status under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. The said claim petition was opposed by the petitioner-management contending that the workman worked less than 480 days during the said two years and therefore, he is not entitled to get permanent status. The first respondent considered materials and including the employment of the second respondent for 70 days under a Contractor named Senthilkumar, ordered to give permanent status to the second respondent with effect from 1.1.1999. The said order is challenged on the ground that the second respondent having not proved employment of more than 480 days, the first respondent is not justified in allowing the claim of the second respondent. 3. The learned counsel for the petitioner-management submitted that during the pendency of the writ petition, in the year 2006, the second respondent was given permanent status and for the earlier period i.e. 1.1.1999 till the grant of permanent status by the management on its own, the second respondent is not entitled to claim any permanency or consequential relief. 4. The learned counsel for the second respondent, on the basis of the counter affidavit filed, submitted that the second respondent had worked for more than 480 days during 1997-1998 and if the public holidays and sundays in the said two years are calculated as duty period, the second respondent satisfied the requirement of working for more than 480 days in two years. The said festival holidays and sundays are bound to be considered as employment period in terms of Section 3(2) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, which is analogous to Section 2(c) of the Payment of Gratuity Act, 1972. 5. The learned counsel for the second respondent also submitted that as per the Division Bench judgment of this Court reported in 1999 (1) LLJ 622 (Mamundiraj, N. and others vs. Bharat Heavy Electricals, Trichy and another) and in an unreported judgment made in W.P.No.2329 of 2000 etc. batch, dated 29.1.2010, this Court held that sundays and festival holidays are to be included for calculation of the period of 480 days for the purpose of conferring permanent status and by counting the said period as employment period, the second respondent definitely satisfy the requirement of Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 and therefore, he is entitled to get permanency from 1.1.1999 even assuming that the employment of 70 days under a Contractor is excluded from the calculation. https://hcservices.ecourts.gov.in/hcservices/ 6. I have considered the rival submissions made by the learned counsel for the petitioner, learned Government Advocate for the first respondent and the learned counsel for the second respondent. 7. The issue to be decided is whether the second respondent has satisfied the requirement of Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 and proved that he had worked for more than 480 days from January, 1997 to December, 1998. Admittedly, the first respondent has not calculated the festival holidays and Sundays of the year 1997-1998 and if the said days are also calculated as employment days, the second respondent is satisfying the requirements of employment for 480 days within two calendar years, since there are 104 Sundays in the said two years and there are number of festival holidays. The cessation of work for holidays and sundays is not due to the fault of the second respondent. 8. In the decision reported in 1999 (1) LLJ 622 (Mamundiraj, N. and others vs. Bharat Heavy Electricals, Trichy and another), similar issue was considered by the Division Bench of this Court and in paragraphs- 18, 22,23 and 24, it is held as follows: "18.Keeping the above observations in view and adhering to the purposive interpretation, the intention of the Legislature and the object of the legislation to meet the evil prevalent in the Industrial field, it emerges that for conferment of a permanent status on a workman, he is required to work in an industrial establishment for a period of 480 days in preceding 24 calendar months. Interrupted period of service for no fault of workman cannot be unaccounted for the purpose of calculating 480 days of continuous service. Even cessation of work which is not due to any fault on the part of the workman cannot be debited to account of the workman for calculating 480 days of continuous service mush less in case of an unfair labour practice. ...... 22.The continuous service in the context of the scheme and the text of the Act does not postulate a continuous relationship of master and servant. Our considered view is what the statute accepts that the workmen should be in the employment of the employer for a period of 480 days in preceding 24 calendar months. To hold otherwise would not only alter the provisions of the Act as well as the object but would result in draconian rule of law resulting in perpetuating injustice. https://hcservices.ecourts.gov.in/hcservices/ 23.The words, "cessation of work" has to be read in the context which it is used in the statute. In our considered view cessation of work would be stopping of work or passing of the work or even discontinuance of the work. As in the present case, the cessation of work has not been brought about by the workman nor it can be termed to be due to any fault on the part of the workman, rather it is other way around i.e. the respondent has brought about cessation of work for the specified period through unfair labour practice by articulating the terminology of the status of a casual worker as a nomenclature for a regular workman for denying the right to conferment of permanent status designed by the statute. 24.The deeming provisions of an employee putting uninterrupted service has been provided by inclusive definition, which means any interruption including non-employment or discharge of such workman or cessation of work without any fault on the part of the workman had to be counted for calculating the period of 480 days of continuous service. In our considered view, the sole of the section and the quint-essential provided by the State for conferment of status of permanent workmen are: (1)A continuous service for 480 days in preceding 24 calendar months. (2)In order to determine the continuous service the perception or the ordinary rule of relationship of master and servant cannot be imported into the statutory provisions to frustrate the very object of the Act. (3)Cessation of work as envisaged by the act, does have a different colour and different from the discharge of employment or ceasing the relationship of employer and employee or subsistence of relationship of master and servant for conferment of permanent status the continuity of relationship of employer and employee or relationship of master and servant cannot be termed to be of paramount consideration especially when an end to the said relationship has been brought about by the employer for no fault of the workman. If we may hasten to add, especially in violation of the public policy provided by the 1981 Act." https://hcservices.ecourts.gov.in/hcservices/ 9. Whether holidays can be included for the purpose of calculating continuous service to a person governed under the Plantations of Labour Act, 69 of 1951 is also considered in an unreported judgment made in W.P.No.2329 of 2000 etc. batch, dated 29.1.2010, and in paragraphs 11.1 and 11.2, it is held as follows:- " XI. Sabbath also counts for service:- 11.1.The other contention that holidays cannot be included for the purpose of calculating the continuous service also does not stand to reason. Under the Plantations Labour Act, Chapter VI deals with leave with wages for the workman. Section 30 allows every plantation worker to have leave with wages for one day for every 20 days for the work performed by him. Apart from that, Section 20 read with Rule 69 of the Tamil Nadu Plantations Labour Rules, 1985 provides for weekly holiday for the plantation workers wherein the workman is entitled to have Sunday as a compulsory weekly off. 11.2.Therefore, apart from actual days worked by him, for which wages have been paid, the workmen are entitled to calculate earned leave and weekly off, sickness leave and maternity leave. The Supreme Court in considering the similar provisions under the I.D. Act in a case in The Workmen of American Express International Banking Corporation v. The Management of American Express International Banking Corpn. reported in (1985) 4 SCC 71, in paragraphs 4 and 5 observed as follows: "4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights’ legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the “colour”, the “content” and the “context” of such statutes (we have borrowed the words from Lord Wilberforce’s opinion in Prenn v. Simmonds6). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court1, we had occasion to say, “Semantic luxuries are misplaced in the interpretation of ‘bread and butter’ statutes. Welfare statutes must, of necessity, receive a https://hcservices.ecourts.gov.in/hcservices/ broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.” 5....What is continuous service has been defined and explained in Section 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is Section 25-B (2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is “actually worked under the employer”. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to Section 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression “actually worked under the employer”. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression “actually worked under the employer” is capable of comprehending the days during which the workman was in employment and was paid wages — and we see no impediment to so construe the expression — there is no reason why the expression should be limited by the explanation. To give it any other meaning than what we have done would bring the object of Section 25-F very close to frustration. It is not necessary to give examples of how Section 25-F may be frustrated as they are too obvious to be stated." https://hcservices.ecourts.gov.in/hcservices/ 10. Thus, the issue with regard to counting of festival holidays and Sundays to a person, who worked under the Plantations of Labour Act, 69 of 1951 is no longer in doubt. The Honourable Supreme Court in the decision reported in AIR 2010 SUPREME COURT 1116 (Harjinder Singh v. Punjab State Ware-housing Corporation), held that the labour welfare legislations are to be interpreted in a manner which benefits the labour and not to defeat their rights. In paragraphs-17 and 37, it is held thus:- " 17. ...... ...... we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the/Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues." 37. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institutions of the national life. This was also made clear in Kesavananda Bharati (AIR 1973 SC 1461) (supra) by Justice Mathew at para 1728, p.1952 and His Lordship held that the Directive Principles nevertheless are: "-fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content, most of them are mere empty vessels into which each generation must pour its contents in the light of its experience." 11. Applying the above referred judgments and the facts stated above, I am of the view that the second respondent has established his right to get permanency in his work from 1.1.1999. There is no merits in the writ petition and the same is dismissed. The petitioner is directed to implement the order of the first https://hcservices.ecourts.gov.in/hcservices/ respondent within a period of four weeks from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is also dismissed. kb Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Inspector of Plantations Valparai. 2.The Section Officer, VR Section, High Court, Madras. + 1 cc to M/s. T.S. Gopalan & Co, Advocate SR No.45902 + 1 cc to Mr. J. Saravanavel, Advocate SR No.45941 VSV(CO) SR/6.7.2010 order in W.P.No.209 of 2006 https://hcservices.ecourts.gov.in/hcservices/