The Management v. The Asst Commissioner of Labour (Enforcement)

JUDGMENT (The Judgment of the Court was delivered by S.Vaidyanathan, J) The present appeal has been preferred against the impugned order passed by the learned Single Judge, dated 01.10.2020 in W.P.No.20939 of 2019 on the file of this Court.

¶2The second respondent-employee was sponsored through Employment Exchange and he joined service of the appellant/Transport Corporation on 22.08.2000 and was paid wages on daily basis. Pursuant to the settlement arrived at between the employer and employee on 31.08.2005 under Section 12(3) of the Industrial Disputes Act, many employees including the present second respondent herein, have been absorbed in service on regular basis and those who have completed 240 days in a period of 12 calendar months. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, is applicable to the Management and the workmen. The employee had approached the

authority under the said Act seeking permanent status. Order dated

15.02.2019 was passed by the authority conferring permanent status and that the employee has produced evidence for having completed 480 days of continuous service in a period of 24 calendar months in terms of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. Before the authority, the employee has gone into box and produced exhibits which were marked as Exs.W1 and W2. The employee was cross-examined by the Management. The Management did not let in any evidence either verbally or by filing exhibits to dispute the contents of the said exhibits. Since the employee's name has been routed through Employment Exchange and that the documents filed by the employee belong to the Management, which had not been disputed, the conferment of permanent status had been ordered by the authority concerned. The relevant portion of the order is extracted below: @ ///// kDjhuh; jhf;fy; bra;Js;s gpukhz thf;FK:yj;jpy;. Vw;fdnt mth; kDtpy; bjhptpj;Js;s tpgu';fis typa[Wj;jpa[s;shh;. mjpy; TLjyhf. jhd; $dthp 2001 Kjy; ork;gh; 2002 tiu 480 ehl;fSf;F nkyhf 2 Mz;Lfspy; gzpg[hpe;Js;sjhft[k;. jd;idg; gzp

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¶3Challenging the rejection of the request made by the Management, vide communication dated 20.11.2007 addressed to the learned counsel for the workmen, a Writ Petition in W.P.No.22550 of 2008 was filed by the workmen, one of whom is the second respondent herein, who is the third petitioner therein and one of us (S.Vaidyanathan, J), by order dated

19.08.2014, categorically held that the employee having accepted the clauses of settlement, cannot take divergent view and hence, he is bound by the settlement and in case he is entitled to the benefits of the 1981 Act, it is open for him to question the same in accordance with law. This Court, had given liberty to the second respondent herein to approach the authority concerned, and the workman, instead of approaching the authority concerned, has filed Writ Appeal in W.A.No.1749 of 2018, questioning the order dated 19.08.2014 passed in W.P.No.22550 of 2008. A Division Bench of this Court, by judgment dated 14.08.2018, has passed adverse order against the workmen, even though the Writ Appeal was disposed of

confirming the order of the learned Single Judge. The relevant portion of the judgment of the Division Bench is extracted below: "5. The issue involved in the writ appeal is squarely covered by a judgment of a Division Bench of this Court in W.A.Nos.2642 to 2655 of 2012, etc., dated 02.02.2012, wherein, it has been observed that between the years 1999 to 2005, there was a ban on recruitments by the Government during which period, the employees are alleged to have been working for 480 days within a period of 24 calendar months and therefore, it has been held that permanent status cannot be conferred during the currency of the said ban period from the year 1999 to 2005."

¶4Though the learned Single Judge in the present Writ Petition, has taken pains to discuss the order in detail and held that the employee would not be entitled to the benefits, the employer has not brought to the attention of the Court the earlier order dated 02.02.2018 passed in W.A.Nos.2642 to 2655 of 2012, etc., which was followed in W.A.No.1749 of 2018, by judgment dated 14.08.2018 while confirming the order dated 19.08.2014 passed by one of us (S.Vaidyanathan,J) in W.P.No.22550 of 2008.

¶5The main contention of the workman is that when there cannot be any ban for making an employee permanent, when he has already been in service and continues in service. The Management has not only disputed the same, but also stated that when there was a ban from 1999 to 2005, which is not in dispute, the question of granting conferment of permanent status, does not arise.

¶6Though we are of the view that there cannot be a ban for recruitment in terms of G.O.Ms.No.14, Personnel and Administrative Reforms (P) Department, dated 07.02.2006, the same may not be applicable for depriving an employee to reap the benefits under the 1981 Act, but unfortunately, in the present case on hand, the employee approached the Division Bench and obtained adverse orders detrimental to his interest in W.A.No.1749 of 2018, by judgment dated 14.08.2018. It is submitted that Review Application has also been filed as against the said judgment dated

14.08.2018, and the said Review Application is pending before the Bench and that a Bench has to be constituted based on the order under review and the matter has to be heard.

¶7Though the finding of the authority, as confirmed by the learned Single Judge, cannot be held to be incorrect, as the order of the Division Bench dated 02.02.2018 passed in W.A.No.2642 to 2655 of 2012, etc., has not been brought to the attention of this Court and that the workman who was also a party to the proceedings in W.A.No.1749 of 2018, invited an adverse order against him and that there cannot be any permanency during the ban period. We are not inclined to interfere with the order of the learned Single Judge that no relief could be granted to the workman concerned.

¶8However, we make it clear that, in case the Review Application said to have been filed as against the order dated 14.08.2018 passed in W.A.No.1749 of 2018, is decided in favour of the workmen, the order in the Writ Petition stands automatically restored.

¶9We also make it clear that in view of the judgment rendered in W.A.No.1749 of 2018, which stares on the face of the workman, we are not granting any relief which otherwise the workman would get the benefit of

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the order of the learned Single Judge as permanency conferred and as confirmed by the Division Bench.

¶10The present Writ Appeal is disposed of with the above observations. There shall be no order as to costs. Consequently, C.M.P. is closed.

(S.V.N.,J) (J.S.N.P., J)

20.01.2023 Index: Yes Speaking Order: Yes cs To

¶1The Management, Metropolitan Transport Corporation Ltd., Chennai-600 002. ..

¶2The Assistant Commissioner of Labour (Enforcement), Second Circle, Chennai-600 035.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20.01.2023 Coram: THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN and THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD Writ Appeal No.2722 of 2021 and C.M.P.No.17773 of 2021 --- The Management, Metropolitan Transport Corporation Ltd., Chennai-600 002. .. Appellant Vs. 1. The Assistant Commissioner of Labour (Enforcement), Second Circle, Chennai-600 035. 2. Thiru.V.Sambandam .. Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 01.10.2020 passed by the learned Single Judge, in Writ Petition No.20939 of 2019 on the file of this Court. For appellant : Mr.R.Ramanlal, Addl. Advocate General, assisted by Mr.C.Goutham Raj For respondents : Ms.E.Ranganayaki, Addl.G.P. for R-1 Mr.S.T.Varadarajulu for R-2