IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.09.2008 CORAM : THE HONOURABLE MR.JUSTICE F.M.IBBRAHIM KALIFULLA Writ Petition Nos.3274 of 2004 and 9702, 9703, 32592 and 32593 of 2007 W.P.Nos.3274/04 and 32592 & 32593/07 The Management, Salem District Central Co-operative Bank Limited, Cherry Road, Salem. .. Petitioner in all 3 WPs. -vs- 1. Inspector of Labour, Authority under Section 4 of the Tamilnadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act 1981, Salem. . .. 1st Respondent in WP 3274/2004 Inspector of Labour, Authority under Section 4 of the Tamilnadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act 1981, Namakkal. .. 1st Respondent in WP Nos.32592 & 32593/2007 2. K.A.Chandrasekaran 3. A.Singaravelu 4. P.Rathinavel 5. R.Shanthi 6. G.Saravanan 7. N.Madhu 8. A.Baskaran 9. G.Subramaniam 10.R.Thirumurthy https://hcservices.ecourts.gov.in/hcservices/ 11.A.Ganesan 12.G.Krishnan 13.S.Mathivazhagan 14.P.Sambu 15.T.Ananda Kumar 16.R.Venkatachalam 17.S.Balakrishnan 18.V.G.Venkateswaran 19.R.Madhavan .. Respondents 2-19 in WP.3274/04 2. A.Subramaniam 3. M.Sivakumar 4. P.Shanmugham .. Respondents 2-4 in WP.32592/07 2. V.P.Perumal Chetty 3. K.Karikalan 4. V.Udayachandran 5. K.Doraiswamy 6. M.Sundararajan 7. K.K.Raju 8. P.Ponnuswamy .. Respondents 2-8 in WP.32593/07 W.P.Nos.9702 & 9703/07 1. P.Ponnusamy 2. V.P.Perumal Chetty 3. K.Karikalan 4. V.Udayachandran 5. M.Sundararajan 6. K.K.Raju .. Petitioners in WP.9702/07 1. A.Subramaniyam 2. M.Sivakumar .. Petitioners in WP.9703/07 -vs- 1. The Joint Registrar of Coop. Societies, Salem Region, Salem, Salem District. 2. The Special Officer, Salem District Central Coop Bank Ltd., Cherry Road, Salem. .. Respondents in both Wps. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.3274/04 praying for issuance of Writ of Certiorari to call for the records in No.AA/9690/2001 on the file of the first respondent and quash the order dated 31.10.2002; W.P.Nos.32592 and 32593/07 praying for issuance of Writ of Certiorari to call for the records in Na.Ka.No.3584/2005-2 and Na.Ka.No.3584/2005-1 respectively on the file of the first respondent and quash the order dated 15.3.2006; and W.P.Nos.9702 and 9703 of 2007 praying for issuance of Writ of Mandamus directing the respondents to conduct enquiry as per directions given by the Registrar of Co.op Societies in proceedings letter No.22322/ C.G.1/2005-7, dated 2.11.2006 and Na.Ka.No.152654/2002 Sa.Pa-3 dated 13.11.2006 and regularize the petitioners service. * * * * * Mr.M.R.Raghavan : For Petitioner in Wps.3274/04 & 32592 & 32593/07 and 2nd respondent in Wps.9702 & 9703/07 Mr.P.Gurunathan, G.A. : For R-1 in all Wps. Mr.K.M.Ramesh : For RR-2, 9 & 12 in WP.3274/04 Mr.C.Prakasam : For Petitioners in Wps.9702 & 9703/07 and For other respondents in Wps.3274/04 & 32592 & 32593/07. * * * * * O R D E R W.P.Nos.3274 of 2004 and 32592 and 32593 of 2007 have been preferred by the Management, Salem District Central Co-operative Bank Limited (hereinafter referred to as 'the Management'), while W.P.Nos.9702 and 9703 of 2007 have been preferred by the contesting respondents in the writ petitions preferred by the management, who shall hereinafter referred to as 'the contesting respondents'. 2. The disposal of the writ petitions preferred by the contesting respondents depends upon the disposal of the writ petitions filed by the management and therefore, the management's writ petitions are being dealt with in the first instance. 3. The challenge in the writ petitions of the management is to the orders of the first respondent in those writ petitions dated https://hcservices.ecourts.gov.in/hcservices/ 31.10.2002 and 15.3.2006, in and by which, the first respondent directed the management to confer permanent status on the contesting respondents as jewel appraisers in the management-society. The contesting respondents approached the first respondent by way of applications seeking its intervention by virtue of the provisions contained in the Tamil Nadu Industrial Societies (Conferment of Permanent Status to Workmen) Act, 1981, (hereinafter referred to as 'the 1981 Act'), on the ground that they have been in the services of the management for fairly a long period as jewel appraisers, that they have been paid wages by the management and since their services have not been made permanent, the first respondent should direct the management to confer permanent status on them. At the instance of the management, a written statement was filed contending that there was no master and servant relationship between the management and the contesting respondents, that the contesting respondents were all freelance jewel appraisers and therefore, they do not satisfy the definition of workman as defined under Section 2(4) of the 1981 Act. The first respondent by the orders impugned in these writ petitions by referring to certain documents filed on behalf of the contesting respondents and certain statements filed on behalf of the management, gave a finding that the contesting respondents were all workmen as defined under Section 2(4) of the 1981 Act and as per the details furnished by the management, since all of them had put in 480 days of working in a continuous period of 24 calendar months, they were entitled for conferment of permanent status. On that basis, the first respondent, in exercise of its powers under Section 5 read with 3(1) of the 1981 Act, directed the management to pass orders conferring such permanent status on the contesting respondents from the date when they completed 480 days of continuous service. 4. Assailing the orders of the first respondent, Mr.M.R.Raghavan, learned counsel appearing for the management, in his submissions mainly relied upon the decisions of the Hon'ble Supreme Court rendered in Mgt. Of Puri Urban Co-op.Bank v. M.Sahu & Anr. (1992 (2) LLJ 6) and in G.M., Indian Overseas Bank v. Workmen A.L.O.B. Employees Union (2006 Lab.I.C. 1641) and contended that the contesting respondents being jewel appraisers cannot be construed as workmen under the provisions of the 1981 Act and that they do not satisfy many of the requirements, which have been set out in the decision in the Indian Overseas Bank's case (2006 Lab.I.C. 1641), cited supra. The learned counsel also contended that there was no cadre at all in the services of the management society as jewel appraisers and therefore, there was no question of granting any relief under the provisions of the 1981 Act to the contesting respondents. According to the learned counsel, the contesting respondents failed to establish that there was any master and servant relationship between the management and the contesting respondents and therefore, the first respondent was not justified in granting such relief of conferring permanent status on them. https://hcservices.ecourts.gov.in/hcservices/ 5. As against the above submissions, Mr.C.Prakasam, learned counsel appearing for the contesting respondents placed before me the special by-laws of the management-society, which was approved by the Government of Tamil Nadu in G.O.Ms.84, C.F. & C.P. Department dated 15.3.2004 and pointed out that the category of jewel appraiser is one of the approved cadre strength in the management society, that there was enough evidence placed before the first respondent to enable the first respondent to reach a definite conclusion as regards the status of the contesting respondents in order to construe them as workmen falling under Section 2(4) of the 1981 Act and therefore, the impugned orders of the first respondent do not call for interference. 6. To counter the submissions of Mr.C.Prakasam, with particular reference to the special by-laws, which got the approval of the State Government on 15.3.2004, Mr.M.R.Raghavan, learned counsel appearing for the management contended that though on behalf of the management society, an affidavit sworn to by the General Manager was filed before the first respondent, unfortunately, the General Manager was not offered for cross-examination before the first respondent and that the fact whether the category of jewel appraiser as stated to have been included in the special by-laws approved by the State Government not having been placed before the first respondent, in the interest of justice, the management society should be given an opportunity to let in necessary evidence, both oral and documentary, before the first respondent to counter the claim of the contesting respondents and that a remittal of the case back to the first respondent will enable both parties to work out their remedy in the appropriate manner. 7. While considering such submissions made on behalf of the management society, it was brought to my notice that in the decision in Indian Overseas Bank's case 2006 Lab.I.C. 1641, cited supra, the Hon'ble Supreme Court made a distinction in respect of another decision relating to Indian Bank rendered by a Division Bench of this Court in the decision reported in 1990 (1) Lab.I.C. 557, the special leave petition of which was also dismissed by the Hon'ble Supreme Court and distinguishing the special features involved in the case of jewel appraisers of the Indian Bank, the Hon'ble Supreme Court specifically pointed out certain factors in paragraphs 14 and 18 of the judgment. As the contentions of the parties have to be tested in the light of the ratio laid down by the Hon'ble Supreme Court in the above two paragraphs, the same need extraction. Paragraphs 14 and 18 read as under:- 14. A few distinguishing facts need to be noted. In Indian Bank case1 there was evidence to show that the jewel appraisers work regularly for four hours. It was clearly admitted in the instant case by the witnesses of jewel https://hcservices.ecourts.gov.in/hcservices/ appraisers that there was no fixed period of work and they could come and go at any point of time. In Indian Bank case1 the Bank had disciplinary control on the jewel appraisers. In the instant case it was admitted by the witnesses that the Bank did not exercise any disciplinary control. In Indian Bank case1 conditions were to be fulfilled before any leave was granted. In the present case the jewel appraisers were not required to sign attendance register and also were not required to make any leave application. The most relevant factor in Indian Bank case1 was that the jewel appraisers were paid a minimum amount per month which was somewhat akin to salary. In the instant case, the amount was paid on commission basis by the loanee and not by the Bank. .... 18. At this juncture the distinction between jewel appraisers and the regular employees of the Bank can be noted. Sl.No. Regular employees Jewel appraisers 1 Subject to qualification and age prescribed. No qualification/age 2 Recruitment through employment exchange/ Banking Service Recruitment Board. Direct engagement by the local Manager. 3 Fixed Working Hours No fixed working hours 4 Monthly wages No guaranteed payment, only commission paid. 5 Subject to disciplinary control No disciplinary control 6 Control/supervision is exercised not only with regard to the allocation of work, but also the way in which the work is to be carried out. No control/supervision over the nature of work to be performed 7 Wages are paid by the Bank Charges are paid by the borrowers 8 Retirement age No retirement age 9 Subject to transfer No transfer 10 While in employment cannot carry on any other occupation. No bar to carry on any avocation or occupation Therefore, the jewel appraisers are not employees of the Bank. https://hcservices.ecourts.gov.in/hcservices/ 8. While referring to the factors set out in the above referred to paragraphs, Mr.C.Prakasam, learned counsel appearing for the contesting respondents in the course of his submissions, wanted to rely upon certain documents, such as, the proceedings of the management society prescribing working hours for the contesting respondents, certain transfer orders issued to them, the payment of salaries made to them as well as certain action taken by the management as against the contesting respondents, apart from the copy of the special by-laws relating to the management society. Inasmuch as those documents were not placed before the first respondent, it was pointed out that the same cannot be looked into in these writ petitions while examining the correctness of the orders of the first respondent impugned in these writ petitions. The learned counsel also, therefore, submitted that if the matter is remitted back to the first respondent, the contesting respondents will also be able to place all relevant documents and also place necessary oral evidence before the first respondent in support of their claim. 9. While considering the above submissions of the respective counsel, I also take note of the fact that in the present proceedings filed before the first respondent at the instance of the contesting respondents, while considering the claim of the contesting respondents as to whether they had put in 480 days of continuous service in a period of 24 calendar months in order to confer permanent status, a preliminary question came to be raised at the instance of the management as to whether the contesting respondents satisfy the definition of workman as defined under Section 2(4) of the 1981 Act. Though, in the normal course, while dealing with the claim of conferment of permanent status, the first respondent need not necessarily adopt the procedure that is being adopted in a regular judicial proceedings and that it would be sufficient for him to merely examine whether the requirement of 480 days of continuous service in a period of 24 calendar months was established, when such a legal question is raised as regards the very status of the contesting respondents as stipulated under Section 2(4) of the 1981 Act, the first respondent authority will have to necessarily examine the said issue in the proper perspective. In other words, though in the normal course proceedings of the first respondent would be summary in nature, where he can satisfy himself with reference to the relevant statutory records as to the compliance of 480 days of continuous service by any workmen in a period of 24 calendar months in order to confer permanent status, in a situation like this, where at the instance of the management, the very status of the claimants, viz. the contesting respondents as regards their status as workmen was raised on a substantial ground, a proper finding is bound to be rendered by the first respondent based on acceptable legal evidence or otherwise any other conclusion based on mere statements and counter statements filed by the parties cannot be held to be a proper https://hcservices.ecourts.gov.in/hcservices/ procedure adopted by the first respondent while dealing with such a contested claims. Further, if the features, which were pointed out by the Hon'ble Supreme Court in respect of jewel appraisers in the case of Indian Bank as has been set out in paragraphs 14 and 18 of the judgment in the Indian Overseas Bank's case 2006 Lab.I.C. 1641, referred supra, are to be considered, then again the parties should be allowed to let in necessary evidence in support of their respective stand for examining those factors by the first respondent. Therefore, looked at from any angle, I am of the view that the case on hand calls for a remittal back to the first respondent for fresh consideration to enable both parties to let in necessary evidence in support of their respective stand. 10. In view of my above conclusion, while setting aside the orders impugned in W.P.Nos.3274 of 2004 and 32592 and 32593 of 2007, the matter is remitted back to the first respondent for fresh disposal. On remand, the first respondent shall permit the management as well as the contesting respondents to let in necessary oral and documentary evidence in addition to whatever documents placed before it and after hearing the parties afresh, pass appropriate orders in accordance with law. Since the contesting respondents had been agitating their rights for fairly a long period, it is just and proper that the first respondent shall pass fresh orders expeditiously, preferably within three months from the date of receipt of copy of this order. W.P.Nos.3274 of 2004 and 32592 and 32593 of 2007 are disposed of accordingly. 11. In W.P.Nos.9702 and 9703 of 2007, the contesting respondents pray for implementation of the orders of the first respondent impugned in W.P.Nos.3274 of 2004 and 32592 and 32593 of 2007. In the light of the orders passed in those three writ petitions, nothing survives in W.P.Nos.9702 and 9703 of 2007 and the same are accordingly disposed of, as having become infructuous. 12. The learned counsel for the management, in the course of his submissions, also stated that irrespective of the orders passed by the first respondent as well as the writ petitions preferred by the management before this Court, the status of the contesting respondents as was existing prior to the passing of the order by the first respondent, viz., as jewel appraisers in the management society, was being continued without any disruption. Having regard to the directions issued in the writ petitions preferred by the management, the management is directed not to alter the present condition of working of the contesting respondents till final orders are passed by the first respondent as per the directions contained in this order. If any jewel appraisers have been inducted in the service of the management during the pendency of these writ petitions or during the pendency of the proceedings before the first https://hcservices.ecourts.gov.in/hcservices/ respondent, the fixation of seniority of those newly inducted jewel appraisers by the management shall depend upon the outcome of the orders to be passed by the first respondent. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Sra To 1. Inspector of Labour, Authority under Section 4 of the Act, 1981, Salem. 2. The Joint Registrar of Coop. Societies, Salem Region, Salem, Salem District. + 1 CC To Mr.Raghavan, Advocate SR NO.54941 + 3 CC To Mr.C.Prakasam, Advocate SR NO.55458 + 1 CC to the Government Pleader SR NO.55173 W.P.Nos.3274 of 2004,& 9702, 9703, 32592 and 32593 of 2007 RSM {CO} TP/6.10.08 https://hcservices.ecourts.gov.in/hcservices/