WP/17692/1999 of Vs on 9 December 2003

: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 bywhich, the said Inspectors of Labour, functioning under the Tamil NaduIndustrial Establishments (Conferment of Permanent Status to Workmen) Act 1981and the Rules framed thereunder (hereinafter called 'the Act' and 'the Rules')passed orders, directing the Tamil Nadu Electricity Board to confer permanentstatus to the respective workmen in these writ petitions as per Section 3 ofthe said Act.2. In W.P.Nos.12578 to 12585 of 2001, the concerned workmenthrough their union seek issuance of a Writ of Mandamus to direct the TamilNadu Electricity Board and its officials to implement the order of theInspector 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 tothe order impugned passed by the Inspector of Labour, the third respondent inW.P.No.24001 of 2002. The learned Additional Solicitor General raised threemain contentions. In the first place, he contended that the third respondentpassed the impugned order in total misunderstanding of the powers vested inhim under the provisions of the Act. In the next place, it was contended thatthe orders of the third respondent were in breach of the procedure prescribedunder the Act. Lastly, it was contended that by passing the impugned order,the third respondent arrogated to himself the powers that are available onlywith the Adjudicatory Forums constituted under the provisions of theIndustrial Disputes Act, 1947.

4. While elaborating on the above said submissions, the learned Additional Solicitor General by referring to Sections 3 and 5 of theAct read along with Rule 6(4) contended that the scope of power andjurisdiction of the third respondent cannot be extended to the extent ofgranting the relief of conferring permanent status as has been done by thethird 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 thedispute viz., 'the demand of the Union to regularise the service of theContract Labourers who have put in three to ten years, to the IndustrialTribunal, Chennai, learned Additional Solicitor General argued that the saiddispute having been numbered as I.D.No.106 of 2001 on the file of theTribunal, Chennai, the whole ambit of the issue relating to the regularisationof contract labourers can be considered only in the said dispute, which is theproper forum for dealing with such issues which cannot be done by the thirdrespondent in its limited jurisdiction available under the provisions of theAct.

5. The learned Additional Solicitor General took pains to

5. The learned Additional Solicitor General took pains to point out that before the third respondent, the status of the workmen was inthe nature of contract labourers and the question about their engagement forcontinuous 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 thescope of the definition of an 'Industrial Dispute' under Section 2(k) of theIndustrial Disputes Act and therefore, such an Industrial dispute could nothave been validly adjudicated by the third respondent in his limitedjurisdiction. According to the learned Additional Solicitor General, thepowers and duties of the third respondent under Section 5 of the Act islimited to the extent of examining the maintenance of registers, records andnotices, which cannot be compared to the adjudicatory power vested with theLabour Court or a Tribunal under Sections 11 and 11(A) of the IndustrialDisputes Act. According to him, the third respondent as Inspector can onlymake a spot enquiry and in the event of any defects being noticed in themaintenance of records, he can direct compliance or rectification of suchdefects and nothing more. By referring to the impugned order of the thirdrespondent, it was further contended that there was absolutely no basicmaterial available for the third respondent to conclude that the concernedworkmen had put in more than 480 days in a period of 24 calendar months inorder 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 UNIONWATER FRONT WORKERS AND OTHERS' (A.I.R. 2001 S.C. 3527); 'RAJASTHAN STATEROAD TRANSPORT CORPORATION AND ANOTHER ..VS.. KRISHNA KANT AND OTHERS' (1995(5) S.C.C. 75); 'C.E.TUTICORIN THERMAL POWER STATION .. VS.. INSPECTOR OFLABOUR, TUTICORIN AND OTHERS' (2002 (9) S.C.C. 752); 'CHANDRAKANT TUKARAMNIKAM 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 'NATIONALENGINEERING 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 tothe Board, the concerned workmen were employed to perform regular jobs thoughstyled as 'contract labourers', that under the provisions of the Act, there isno other forum has been provided for the determination of the rights of theworkmen vis-a-vis the management and therefore when the provisions under theAct enables the third respondent not only to inspect the establishment, butalso to confer permanent status, there was every jurisdiction vested with thethird respondent to pass orders impugned in the writ petitions.

8. According to the learned counsel, admittedly even

Conclusion

according to the Board, the concerned workmen were employed as contractlabourers and therefore, the third respondent while exercising his powers hasonly gone into the incidental question as to whether they were really contractlabourers or their services were utilised as regular workmen in order to grantthe consequential relief to them. According to the learned counsel going bythe definition of 'workmen' under the Act, the third respondent had tonecessarily decide the said question as an incidental one which was certainlypermissible by virtue of the various decisions of the Honourable SupremeCourt. Learned counsel further contended that though the said exercise cannotbe strictly construed as one of adjudication if can be held that what was doneby the third respondent was in the nature of an investigation. According tothe learned counsel by holding such an investigation and by granting therelief, the third respondent has not conferred any new right but has onlycrystallised 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 PROPERTIESLIMITED ..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 theworkmen can be stated to have the right to raise an Industrial dispute cannotbe said to have lost their right to claim benefits available under the Act.

According to the learned counsel, the Industrial Disputes Act does notpreclude the rights available to the workmen under the State Act. Learnedcounsel also relied upon the Division Bench Judgement of this Court reportedin 'METAL POWDER CO., LTD., THIRUMANGALAM AND ANOTHER ..VS.. THE STATE OFTAMIL NADU AND ANOTHER (1985 II L.L.J. 376) wherein the provisions of the Actcame 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. MARTINBURN LTD., ..VS.. T.G.MOORJANI AND OTHERS (1974 L.I.C. 968); ' MANAGEMENT OFPITHAVADIAN PARTNERS, REP. BY ITS MANAGING PARTNER ..VS.. CONTROLLINGAUTHORITY UNDER THE PAYMENT OF GRATUITY ACT' (1984 L.I.C. 1298 ); and'CENTRAL INLAND WATER TRANSPORT CORPORATION ..vs.. SECOND LABOUR COURT ANDOTHERS)'(1974 I L.L.J. 445). The learned counsel contended that theconcerned workmen in that Writ Petition have already been directed to beregularised by Hon'ble Mr. Justice V.Khalid in his report, which report cameto be made pursuant to the order of the Hon'ble Supreme Court and in suchcircumstances, the authority functioning under the Act was fully justified ingranting the relief under the provisions of the Act. On behalf of theworkmen, reliance was also placed upon the decisions reported in KSB PUMPSLTD., (REP. BY ITS GENERAL MANAGER) COIMBATORE ..VS.. DEPUTY CHIEF INSPECTOROF 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 laterthere is scope for resolving a controversial dispute. The learned counselalso referred to certain passages from the book " Principles of StatutoryInterpretation" by Justice G.P.Singh at pages 345 and 529 and contended thatwhere the very status of the concerned workmen to claim the benefit under theAct is in dispute, such a basic controversial question cannot be decided bythe Inspector of Labour in his limited jurisdiction available under theprovisions 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 feelit appropriate to examine the provisions of the Act and also some of thedecisions cited at the Bar in order to steer clear of the legal position asregards the power of the Inspectors of Labour conferred upon him under theprovisions of the Act. The statement of objects and reasons in relation tothe Act is to the following effect:

"Many workers in industrial establishments are being kept undertemporary rolls and on that pretext are being denied of various statutory aswell as non-statutory benefits which are given to permanent workers. Mainly,in many establishments non-permanent workers are given consolidated wageswhich are far below the occupational wages and do not carry the benefit ofdearness allowance paid to permanent employees. Similarly they are deniedvarious other benefits like payment of festival, cyclone and marriageadvances, payment of ex-gratia over and above the statutory bonus, supply ofuniforms and tea, preference for the dependants of the employees in the matter

of employment etc., In order to curb various unfair labour practices andfollowing the decision at the 25th meeting of the State Labour Advisory Boardthe Government have decided to undertake a special legislation to conferpermanent status to the workers in various industrial establishments who haveput in a service for a period of four hundred and eighty days in a period oftwenty 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 industrialestablishments in the State of Tamil Nadu. As far as the application of theAct 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 anyIndustrial establishment to do any skilled or unskilled, manual, supervisory,technical or clerical work for hire or reward, whether the terms of employmentbe expressed or implied and includes a Badli workmen. It is common groundthat the concerned workmen do not fall within the excluded category. Section3 of the Act states that notwithstanding anything contained in any law for thetime being in force every workman who is in continuous service for a period offour hundred and eighty days in a period of twenty four calendar months in anindustrial establishment should be made permanent. Explanation II of the saidSection makes it clear that the term "law" for the purpose of the said sectionwould include any award, agreement, settlement, instrument or contract ofservice 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 beextracted for better appreciation, which reads as under:- "Powers and duties of Inspectors: Subject to any rules made by theGovernment in this behalf, the Inspector may, within the local limits forwhich he is appointed, -

a) enter at all reasonable times and with such assistants, if any, whoare persons in the service of the Government or of any local authority as hethinks 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 evidenceof such person as he may deem necessary, for carrying out the purpose of thisAct; 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 industrialestablishments and the Board does not come under any of the said category.Section 9 enables the State Government to exempt conditionally orunconditionally any employer or class of employers or any industrialestablishment or class of industrial establishments from the provisions of theAct. But, till date, the Board has not been exempted from the provisions ofthe Act. Section 10 of the Act empowers the State Government to frame therules and rules have also been framed by virtue of the said power. Rule 3prescribes the powers of the Inspector in addition to the power conferred bySection 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 toin sub-rule (2) or finds that the entries have not been made correctly orfinds that though entries regarding his service have been made correctly buthe has not attested the entries in the register of workmen in Form I may makea representation to the Inspector concerned. The Inspector after examiningthe representation to the Inspector concerned. The Inspector after examiningthe representation or after making enquiries may issue suitable directions tothe employer for the rectification of the register in Form I or for the issueof orders conferring permanent status to the workman concerned."(Emphasis added)

By virtue of Rule 6(1), every employer of an Industrial establishment shallmaintain a register of workmen in Form I and shall produce the registerwhenever it is required by the Inspector having jurisdiction over theindustrial establishment. Under Rule 6(3), every employer should send a copyof the up to date list so compiled under sub-rule (2), to the Inspectorconcerned within 15 days from the expiry of the half year ending with June andDecember giving the details about the workmen whose names are maintained inForm I.

17. The validity of the above said Act came up for consideration before the Division Bench of this Court in the judgment reportedin ' METAL POWDER CO., LTD., THIRUMANGALAM AND ANOTHER ..VS.. THE STATE OFTAMIL NADU AND ANOTHER' (1985 II L.L.J. 376). One of the submissions madebefore the Division Bench was that as against the order of Inspector, there isno provision for appeal. While dealing with the said contention, the DivisionBench ultimately held as under in para 23:- "23. .... Even the Statute does not make it final and if and when aquestion arises as to whether the workman is entitled to certain benefits as apermanent workman and a claim is made on the basis of the decision of theInspector, it is obvious that the decision of the Inspector being summary innature, the controversy can be properly determined in the appropriateproceedings 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 hasheld 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 aremaintained by the employers and consequently, there is no vagueness aboutascertaining the periods required to be ascertained for the purpose of Section3, Sub-Ss.(1) and (2). It is obvious to us that the factors enumerated inSection 3(2) do not require any long procedure for determination. The absenceof the workmen can be ascertained from the registers maintained by theemployer. Prima facie, the legality or illegality of a strike can also beascertained depending upon whether the concerned statutory provisions havebeen complied with or not. All these can properly become the subject matterof the enquiry which is contemplated in Rule 6(4) of the Rules. The standtaken by the learned Advocate General and Mr. Chandran is that the Inspectorwill give enough opportunity to the employer to put forth his case and producethe 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 theRegister in Form I or for issue of orders conferring permanent status on theworkmen concerned. Form I contains the proforma of the Register of workmenwhich has to be maintained by the employer. The information incorporatedtherein is useful for ascertaining whether the workman is entitled to thebenefits of the Act. These columns have to be filled by the employer himselfand only if there is a doubt about the correctness of the entries in thisregister, an enquiry will become necessary. Similarly, the Inspector has tobe furnished with the necessary details in form II which will enable him toascertain whether the law is being complied with or not. We do not find thereis anything vague or uncertain in the Act or the Rules which will createdifficulties in the implementation of the Act, requiring the provisions of theAct 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 hasheld as under in para 25:- "25. ....Relying on this decision, Mr. Somayaji has argued that wemust read the requirement to make a speaking order in Rule 6(4), when Rule6(4) provides that the Inspector should examine the representation of theemployee and must make the necessary enquiries. This argument must beaccepted because, when the Inspector has to determine whether the workman isentitled to the benefit of Section 3 and when the employer contests thisright, he has to make the necessary enquiries and these enquiries mustculminate in a speaking order disposing of the contentions of the employer andthe workman. Whether it is the workman's case or the employer's case which isaccepted, the Inspector will be bound to give reasons as to whey he isaccepting or rejecting the case of either party".(Emphasis added)

20. The above said judgment of the Division Bench of this

20. The above said judgment of the Division Bench of this Court was challenged before the Hon'ble Supreme Court and the Supreme Courtalso confirmed the decision of the Division Bench as reported in ' STATE OFTAMIL 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 ofthat part of the order of the Division Bench, which held that explanation toSection 3 was incapable of enforcement and was consequently held to beredundant. The Supreme Court by taking note of the subsequent validation madeafter the judgment of the Division Bench upheld the order of the DivisionBench.

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 dated20.08 .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 petitionsfiled by the Electricity Board against similar orders confirming permanentstatus to certain other workmen. In fact, a Division Bench of this Court inits order dated 24.11.1997 in W.A.No.1445 of 1997 also rejected the claim ofthe petitioner / Board in challenging similar order of the authority under theAct by holding that there is a statutory obligation on the Board to conferpermanent status to concerned workmen. The said order of the Division Bench was challenged before the Hon'ble Supreme Court and the Supreme Court alsoconfirmed the order of the Division Bench in the judgment reported in 'C.E.TUTICORIN THERMAL POWER STATION ..VS.. INSPECTOR OF LABOUR, TUTICORIN ANDOTHERS' (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 wasnot 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 WATERFRONT WORKERS (A.I.R. 2001 S.C. 3527) was for the aspect viz., that inrespect of a contract labourer, when the question arises whether thecontractor has been interposed as a genuine contractor or was a mere ruse /camouflage to evade compliance of various beneficial legislation, so as todeprive the workers of the benefit thereunder, such disputed questions offacts in regard to contingency of service can be validly agitated only beforea forum created under the provisions of the Industrial Disputes Act. Reliancewas placed upon paragraph 1 22 (5) as well as paragraph 123, which reads asunder:- "122(5). .... On issuance of prohibition notification under Section10(1) of the CLRA Act prohibiting employment of contract labour or otherwise,in an industrial dispute brought before it by any contract labour in regard toconditions of service, the industrial adjudicator will have to consider thequestion whether the contractor has been interposed either on the ground ofhaving undertaken to produce any given result for the establishment or forsupply of contract labour for work of the establishment under a genuinecontract or is a mere ruse / camouflage to evade compliance of variousbeneficial legislations so as to deprive the workers of the benefitthereunder. If the contract is found to be genuine but a mere camouflage, theso called contract labour will have to be treated as employees of theprincipal employer who shall be directed to regularise the services of thecontract labour in the concerned establishment subject to conditions as may bespecified by it for that purpose in the light of para 6 here under."123. We have used the expression 'industrial adjudicator' by designas determination of the questions aforementioned requires inquiry intodisputed question of facts which cannot conveniently be made by High Courts inexercise of jurisdiction under Article 226 of the Constitution. Therefore, insuch cases the appropriate authority to go into those issues will beIndustrial Tribunal / Court whose determination will be amenable to judicialreview."

23. In the judgment reported in 'RAJASTHAN STATE ROAD

TRANSPORT CORPORATION AND ANOTHER ..VS.. KRISHNA KANT AND OTHERS (1995 (5)S.C.C. 75), in paragraph 35, the Hon'ble Supreme Court while summarising theprinciple, held that wherever the dispute involves recognition, observance orenforcement of any of the right or obligations created by enactment likeIndustrial Employment (Standing Orders) Act, 1946 and if such enactment doesnot provide a forum for resolution for such dispute, the only remedy is toapproach the adjudicatory forum created under the Industrial Disputes Act.

24. In the judgment reported in 'COUNCIL OF SCIENTIFIC AND

INDUSTRIAL RESEARCH AND ANOTHER ..VS.. PADMA RAVINDER NATH AND OTHERS' (2001

(9) S.C.C. 526) the Hon'ble Supreme Court confirmed the view of the CentralAdministrative Tribunal consisting of five members that the AdministrativeTribunals are not substitute for authorities constituted under the IndustrialDisputes Act and hence, the Administrative Tribunals do not exerciseconcurrent jurisdiction in regard to the matters covered under the IndustrialDisputes Act. In the judgment reported in 'CHANDRAKANT TUKARAM NIKAM ANDOTHERS ..VS.. MUNICIPAL CORPORATION OF AHMEDABAD AND ANOTHER' (2002 (2)S.C.C. 542) the principle set out by the Hon'ble Supreme Court in 'RAJASTHANSTATE ROAD TRANSPORT CORPORATION AND ANOTHER ..VS.. KRISHNA KANT AND OTHERS'(1995 (5) S.C. C. 75) was applied and followed.

25. In 'NATIONAL ENGINEERING INDUSTRIES LTD., ..VS.. SHRI

KISHAN BHAGERIA AND OTHERS' (1988 (SUPP) S.C.C. 82) while dealing with theprovisions contained in the Industrial Disputes Act and applying the scope ofArticle 254 of the Constitution that if there was any law by the State whichhad been reserved for the assent of the President and has received the assentof the President, the State law would prevail in that state even if there isan earlier law by the Parliament on a subject in the Concurrent list andultimately concluded that there is no inconsistency between these twoenactments and these two enactments are supplemental to each other.

26. In the judgment reported in 'CENTRAL BANK OF INDIA LTD.,

..VS.. P.S.RAJAGOPALAN' (1964 (3) S.C.R. 140) while dealing with the scopeof power Section 33-C(2) of the Industrial Disputes Act., the Hon' ble SupremeCourt held as under:- "Besides, it seems to us that if the appellant's construction isaccepted, it would necessarily mean that it would be at the option of theemployer to allow the workman to avail himself of the remedy provided bysub-s.(2), because he has merely to raise an objection on the ground that theright claimed by the workman is not admitted to oust the jurisdiction of theLabour Court to entertain the workman's application. The claim under Section33-C(2) clearly postulates that the determination of the question aboutcomputing the benefit in terms of money may, in some cases, have to bepreceded by an enquiry into the existence of the right and such an enquirymust be held to be incidental to the main determination which has beenassigned to the Labour Court by sub-s.(2). As Maxwell has observed 'where anAct confers a jurisdiction, it impliedly also grants the power of doing allsuch acts, or employing such means, as are essentially necessary to itsexecution (1).' We must accordingly hold that Section 33-C(2) takes within itspurview cases of workmen who claimed that the benefit to which they areentitled should be computed in terms of money, even though the right to thebenefit on which their claim is based is disputed by their employers."

27. The said ratio laid down by the Hon'ble Supreme Court was subsequently followed in 'SAHU MINERALS AND PROPERTIES LIMITED ..VS..PRESIDING OFFICER, LABOUR COURT AND OTHERS' (1975 (2) L.L.J. 341).

28. In 'NIRCHILIYA AND OTHERS ..VS.. MANAGEMENT OF SAFIRE

THEATRE, MADRAS AND ANOTHER' (1991 (I) L.L.J. 111) Hon'ble Supreme Court heldthat where remedies are available under the State Act as well as the centralAct, irrespective of the fac workmen initially sought for relief under the Industrial Disputes Act, though did not subsequently pursue the same, they canstill seek the very same remedy under the State Act viz., the then Madrasshops and Establishments Act, especially when there was no specific bar undereither of the enactments in seeking for such a remedy.

29. A Division Bench of Delhi High Court in the decision reported in 'M/S.MARTIN BURN LTD., versus T.G.MOORJANI & OTHERS' (1974 L.I.C.9 68), while dealing with the claim of an employee under the payment ofGratuity Act held that where the very jurisdiction of the controllingauthority was questioned, the authority can make a preliminary determinationof the existence of the condition on which the very jurisdiction depends andthe authority was not barred from doing so. The Division Bench also held thathe need not wait for the decision of the competent court before undertakingany enquiry as that would defeat the very object of the statute under whichthey function.

30. In the judgment reported in 'KSB PUMPS LTD., (REP. BY

ITS GENERAL MANAGER) COIMBATORE ..VS.. DEPUTY CHIEF INSPECTOR OF FACTORIES,COIMBATORE' (2002 (4) L.L.N. 389) the Hon'ble Mr. Justice P.K.MISRA whiledealing with a similar issue arising under the Act has considered the scope ofRule 6(4) and has held as under:-"Law is now well settled that even the authorities, while dealing withan administrative matter, may be required to follow the principles of naturaljustice, if the facts and circumstances of the particular case so warrant.Even assuming that the Inspector is merely an administrative authority, rule6(4) itself contemplates that he can make an enquiry and thereafter issuesuitable direction to the employer. This is clear from the expression ascontained within rule 6(4) to the following effect:-".......The Inspector after examining the representation or aftermaking enquiries, may issue suitable direction to the employer....."Since the Inspector can make enquiry, it does not prejudice anybody, if theInspector makes such an enquiry in the presence of both the parties and calledupon the parties to produce materials in respect of their respectivecontentions. In the present case, the representation has been filed beforethe Inspector and the Inspector called upon both the parties to furnishmaterial even in the shape of oral evidence. I do not think the adoption ofsuch a course by the Inspector has at all prejudiced the present petitioner,as the petitioner can avail of the opportunity before the Inspector."

31. In the above stated legal background, we have to analyse the impugned orders in the writ petitions. I find that in all the cases, therespective workmen have uniformly claimed before the concerned Inspector ofLabour that they have been working in different sections of the Tamil NaduElectricity Board for not less than 240 days in a year, that they have beencarrying out jobs as mentioned in their applications, that they have receivedwages as per the amounts entered in the petty cash book or K-2 agreement orchit agreement, which are maintained by the respective Assistant Engineers /Junior Engineers or stores officers, that in proof of having worked forseveral years, they have been issued with certificates by the respectiveJunior Engineers of the Board, that the proof of having worked for therequired number of days are entered in the registers maintained by the stores

officers and Assistant / Junior Engineers, that in effect they were being paiddaily wages and therefore, they are entitled for conferment of permanentstatus under the Act. In fact, each of the concerned workmen who moved theconcerned Inspectors of labour have gone into the box and have deposedconfirming whatever they have stated in their respective applications and inthe oral evidence, all the concerned individual workmen specifically statedthat they have been doing works like erection of poles, stringing of lines,maintenance of transformer, handling of lines, maintenance of transformer,handling of materials in stores etc. They have also stated that they haveworked more than 480 days in 24 calendar months and they should have beenconferred with permanent status. The respective certificates issued by theconcerned Junior Engineer or Assistant Engineer were also marked before theInspector of Labour wherein it has been certified that the concerned workmenare in service continuously over a long period. In the applications also theyhave mentioned the date when they commenced their work with the concernedjunior engineer or assistant engineer. The qualification and date of birthhave also been mentioned.

32. While so, on behalf of the board, it was contended that there was no agreement with the concerned workmen for doing the jobs likeerection of polies, stringing of lines and handling of materials in thestores. According to the petitioner / Board, such works were executed oncontract basis under certain guidelines and that concerned contractors used toengage the requisite labour and pay the wages to the persons employed by him.The petitioner / Board therefore contended that there was no direct employerand employee relationship between the board and the concerned workmen. It wasthe definite case of the Board that no attendance register was maintained andtherefore, the claim of the workmen that they have worked more than 240 daysin a year was not true. As far as the certificates issued to the concernedworkmen by the Junior / Assistant Engineers, it was contended that suchofficers were not empowered to issue such certificates. It was contended thatsince none of the concerned workmen in these writ petitions were governed bythe report of Hon'ble Mr. Justice Khalid, who came to be appointed by theorder of the Hon'ble Supreme Court they were not entitled for any relief. Itis necessary to be stated that no oral evidence was let in on the side of theBoard and there was also no cross-examination of the deposition of theconcerned workmen before the Inspector of labour. In the above statedsituation, the question for consideration is as to whether the conclusion ofthe Inspector of Labour that the concerned workmen had put in more than 480days in 24 calendar months was correct and consequently they are entitled forthe conferment of permanent status as has been granted.

33. While considering the said question, it will have to be stated that while on the one hand the evidence placed before the Inspector ofLabour on the side of the concerned workmen remained, the same was also notcontroverted, no iota of evidence was placed on the side of the Board as toeither about the nature of the employment or about the details of theiremployment. The Board was rest content with the various contentions raised byit in its counter. But, the fact about the engagement of the services of theconcerned workmen was never disputed by the Board. The only stand was thatsince they were all contract workmen, they were not entitled for any benefitto be conferred under the provisions of the Act. But even in respect of the

said stand except the ipsi dixit of the stand taken in the counter nothing wasplaced before the Inspector of Labour. Even about the nonmaintenance of therequired Forms under the provisions of the Act, the stand of the Board wasthat since they were all contract labourers, the question of maintaining thoserecords did not arise. It is pertinent to note that while it was contendedthat the persons were employed as contract labourers under certain guidelines,nothing was placed before the Inspector of Labour in support of the saidstand. The claim of the concerned workmen was that under the guise ofcontract labourers, they were asked to perform various jobs, which wererequired to be performed by the regular employees of the Board.

34. In this background of the fact situation, when the Inspector of Labour was called upon to exercise his powers under Section 5 ofthe Act read with Rule 6(4), the Board cannot expect the authority to closethe proceedings by holding that irrespective of the indifferent attitudedisplayed by the Board before the Authority, the concerned workmen cannot beconferred with the permanent status. Therefore, when the contention of thelearned Additional Solicitor General that the authority mis-understood thepower vested in him while passing the impugned order is considered, it canonly be said that the exercise of powers and duties conferred on the Inspectorof Labour under Section 5 read along with Rule 6(4) he was fully empowered thepass appropriate orders in fulfillment of the object of the Act, when thenecessary materials for achieving the same were placed before him. If thevarious ingredients of Section 5 of the Act is looked into, I find that theInspector of Labour has been invested with the necessary power to inspect anyindustrial establishments and apart from examining the relevant registers andrecords can also record the evidence of such persons as he may deem itnecessary either in the establishment itself or elsewhere for the purpose ofcarrying out the object of the Act. Section 5(c) of the Act also states thatthe Inspector can exercise such other powers as may be necessary for carryingout the purposes of the Act. Therefore, a reading of Section 5 on the wholemakes it clear that the Inspector of Labour who exercise his powers containedtherein should exercise such powers in such a way that the purpose of theenactment is fulfilled, and not defeat such purpose even if any such attemptis made by any party. When such is the pre-dominent idea behind the investingof the power with the Inspector of Labour under Section 5 of the Act, I amafraid that the Board can decline to avail the opportunity afforded to it whenthe concerned workmen moved the Inspector of Labour to hold an enquiry inorder to examine whether or not they are to be conferred with the permanentstatus by virtue of their continued employment, but still the Inspector ofLabour should refrain himself from exercising his powers and reject theapplication of the workmen. Under Rule 6(4), it is specifically provided tothe effect that-"....... The Inspector after examining the representation or after making enquiries may issue suitable directions to the employer for therectification of the register in Form I or for the issue of orders conferringpermanent status to the workman concerned."

Therefore, it can be safely held that by virtue of Section 5 read along withRule 6(4), the Inspector of Labour can pass positive orders conferring permanent status to the workmen concerned after examining the representationmade before him and after holding an enquiry. The Division Bench of thisCourt has also held so in the judgment reported in 1985 (II) LLJ 376 (citedsupra). In spite of all these, if it were to be held that irrespective of thesaid statutory stipulations the Inspector of Labour is not entitled to passpositive orders conferring permanent status, such powers vested with him underthe provisions would only result in futility. I am afraid that the submissionso made on behalf of the Board can be accepted. It is true that under Section5 read with Rule 6(4) of the Act, the Inspector of Labour can also direct inthe event of any defects in the maintenance of registers to rectify suchdefects and give appropriate directions to that effect. But, the same did not mean, that, that is the onlypower vested in the Inspector of Labour and nothing more. The well knowncanon of construction is that no provision in a statute can be held to beredundant and therefore, when under Section 5 of the Act specific powers havebeen provided to the effect that the Inspector of Labour can enter at allreasonable times into any industrial establishments, make necessaryexaminations of the records and record necessary evidence of such persons ashe may deem necessary for carrying out the purposes of the Act and when thesaid provisions read along with Rule 6(4) which specifically provides thatsuch exercise of powers provided under Section 5 can be made while dealingwith a representation and by passing a positive order conferring permanentstatus, it will have to be held that the Inspector of Labour would be fullycompetent to issue an order conferring permanent status to the workmen basedon the evidence available before it based on the enquiry held by him, if itwas brought out that such a benefit should necessarily be conferred on theconcerned workmen. I can only say that to hold otherwise would only defeatthe whole purpose of the Enactment, the object of which was that whereverworkmen are being kept under temporary roles, thereby denied of variousstatutory as well as nonstatutory benefits, which are extended to thepermanent workers and wages are paid on consolidated basis far below theoccupational wages without the benefit of Dearness Allowance, which is paid tothe permanent employees, to defeat such deprivation and ensure that their realstatus is affirmed.

35. Therefore, I am unable to accept the submission made on behalf of the Board that the exercise of the power by the Inspector of Labourin conferring permanent status after holding necessary enquiries contemplatedunder Section 5 read along with Rule 6(4) should be construed as arrogating tohimself the powers available to the other adjudicatory forums created underthe provisions of the Industrial Disputes Act 1947. It will have to be statedthat while the exercise of powers vested with the Inspector under theprovisions of the Act is summary in nature, the one under the provisions ofthe Industrial Disputes Act may be an elaborate one. Nevertheless the samedoes not mean that by exercising the power under the provisions of the Act theInspector of Labour would be trespassing into the adjudication processcontemplated under the provisions of the Industrial Disputes Act. In thiscontext, if the judgment of the Supreme Court reported in ' NIRCHILIYA ANDOTHERS ..VS.. MANAGEMENT OF SAFIRE THEATRE, MADRAS AND ANOTHER' (1991 (I)L.L.J. 111) is applied, it can be safely held that where there is no

prohibition under the provisions of either the Industrial Disputes Act or theAct, exercise of the power in the manner in which it can be done by theInspector of Labour under the Act cannot be found fault with. It will have tobe stated that such an exercise would be well within the statutory limitationsprovided under the Act. In fact, in the above referred to judgment of theHon'ble Supreme Court, the question for consideration was whether the workmenwho initially raised an industrial dispute under the Industrial Disputes Actand who did not pursue it till its logical end when chose to move theauthority under the then Madras Shops and Commercial Establishment Act, theHon'ble Supreme Court held that in the absence of any prohibition under eitherof the enactments, such a course adopted by the workmen cannot be faulted.Therefore, applying the said ratio to the case on hand, it can be safely heldthat the concerned workmen here were placed in a better footing when theychose to straightaway move the Inspector of Labour under the Act, inasmuch asaccording to the workmen, having regard to the facts prevailing as on date,they were entitled for the conferment of permanent status as provided underthe Act. If such a claim of the workmen was not factually maintainable, itwas for the Board to have resisted the said claim with all available materialsand could have convinced the Inspector of Labour as the claim ought not tohave been countenanced. The Board having miserably failed to perform itsduties in the manner expected of it, it cannot be now allowed to contend orcomplain against the powers exercised by the Inspector of Labour which waswithin the provisions of the Act. In this context, if the judgment of theDivision Bench of this Court reported in 'METAL POWDER CO., LTD.,THIRUMANGALAM AND ANOTHER ..VS.. THE STATE OF TAMIL NADU AND ANOTHER' (1985II L.L.J. 376) is applied, then also it can be safely held that the Inspectorof Labour was well within his jurisdiction in holding the proceedings in themanner it was held and in passing the order by directing the petitioner /Board to confer permanent status on the workmen.36. The contention of the learned Additional SolicitorGeneral that the observation of the Division Bench in paragraph 23 in statingthat the proceedings under the Act are summary, that the statute does not makeit final and if and when question arises as to whether the workmen is entitledto certain benefits as a permanent workmen and the claim is made on the basisof the decision of the Inspector, the other controversies can be properlydetermined in the appropriate proceedings, which may be taken either by theemployer or by the workmen; supports the submission of the Board, that thescope and power of the Inspector was limited to the extent of inspecting theregisters and issue directions for rectifications in the maintenance of suchregisters and not to the extent of giving any positive directions to conferpermanent status cannot be accepted. I say so because when the above saidobservations of the Division Bench is closely read, it can be seen that theDivision Bench has only suggested to the effect that after the conferment ofpermanent status, that may be directed to be made by the Inspector of Labour,when any question arises as to what kind of benefits are to flow from suchconferment, then such controversies relating to the extent of theconsequential benefits to be extended may have to be adjudicated upon at theinstance of either the employer or the workmen before the appropriate forum.I am of the view that the above said observations of the Division Bench cannotbe taken to mean that the specific powers conferred on the Inspector of Labourunder the provisions of the Act themselves are to be denied to the Inspector

of Labour and that the whole issue as to whether a concerned workmen should beconferred permanent status itself could again be agitated before some otheradjudicatory forum much less the forum created under the Industrial DisputesAct. In my view, such an extreme proposition would negate the very purport ofthe enactment and would be doing violence to the intention of the legislaturewhich seeks to confer certain benefits as specifically stat ed in the objectsand reasons of the Act, especially when the relevant provisions conferringsuch powers with the Authority under the Act, having been upheld by theDivision Bench of this Court, which has also been confirmed by the Hon'bleSupreme Court.

37. At best, the submission made on behalf of the Board that the rights of the workmen can be worked out under the provisions of theIndustrial Disputes Act, can reasonably stated to be acceptable to the extentthat when such conferment of permanent status is ordered, such permanentstatus can be at a level which according to the Board that was in existence ason the date as claimed by the workmen and that if any controversy should ariseon the stand of the Board while conferring permanent status as directed by theInspector of Labour and in the event of any necessity arising for determiningsuch a controversy, either the Board or the workmen may have to work out theirremedy by invoking the provisions of the Industrial Disputes Act. Certainly,the submission made on behalf of the Board cannot whittle down the veryexercise of power available to the Inspector of Labour under the provisions ofthe Act and the power having been thus exercised as per the orders impugned inthese writ petitions.

38. The submission made on behalf of the Board by relying upon the observation of the Division Bench contained in paragraph 23 ifanalysed in yet another angle also, it can be stated that the observation ofthe Division Bench can only be taken to mean that the exercise of power by theInspector of Labour being summary in character can be properly questioned bychallenging the same by resorting to the constitutional remedy under Article226 of the Constitution. In line with the above view of mine, I can validlyrefer to the judgment of the Hon'ble Supreme Court reported in 'CHRISTIANMEDICAL COLLEGE HOSPITAL EMPLOYEES' UNION AND ANOTHER ..VS.. CHRISTIANMEDICAL COLLEGE VELLORE ASSOCIATION AND OTHERS' (1988 (I) L.L.J. 263). Inthe said judgment, the question which arose for determination was whethercertain of the provisions of the Industrial Disputes Act were applicable tothe educational institutions established and administered by minorities whichare protected by clause 1 of Article 30 of the Constitution. When it wascontended by the management of the minority institutions that in the event ofthe adjudicatory forum created under the provisions of the Industrial DisputesAct passing any order under the relevant provisions against the institution,the same would amount to abridging the right of the minority institution toestablish or administer the educational institutions. The said submission wasmade on the footing that as against the award or orders of the adjudicatoryforums under the provisions of the Industrial Disputes Act, no statutoryappeal was provided. Dealing with the said contention, the Honourable SupremeCourt has held in paragraph 12 as under:-"The Act in general applies to all industries irrespective of thereligion or caste to which the parties belong. It applies to industries owned

by the Central and the State Governments too. Any decision given by theIndustrial Tribunal or a Labour Court under the Act is subject to judicialreview by the High Court under Article 226 of the Constitution of India and anappeal to this Court under Article 136 of the Constitution of India. TheLabour Court, the Industrial Tribunal, the High Court and this court whiledealing with matters arising out of the Act have to deal with themobjectively. The smooth running of an educational institution depends uponthe employment of workmen who are not subjected to victimisation or any otherkind of maltreatment. The conditions of service of workmen in allinstitutions including minority educational institutions have to be protectedin the interest of the entire society and any unfair labour practice, such as'hiring and firing' termination or retrenchment of the service of a workman onirrational grounds, will have to be checked."

Therefore the reading of the observations of the Division Bench in paragraph23 being in tune with the ratio of the Hon'ble Supreme Court referred toabove, it can be held that the direction of Inspector of Labour to conferpermanent status when came to be made in summary proceedings, nevertheless inthe event of any blatant error or arbitrary exercise of power, resulting therefrom, such orders can be validly questioned by invoking appropriateconstitutional remedies. The said observation of the Division Bench thereforecannot be taken to mean that the Inspector of Labour has no jurisdiction topass an order giving a positive direction to confer permanent status inexercise of his powers under Section 5 read along with the relevant Rules.

39. The contention of the learned Additional SolicitorGeneral by placing reliance upon paragraph 122(5) of the judgment of theHon'ble Supreme Court reported in 'STEEL AUTHORITY OF INDIA LTD., ..VS..NATIONAL UNION WATER FRONT WORKERS AND OTHERS' (A.I.R. 2001 S.C. 3527) isconcerned, it will have to be held that the said ratio laid down by theHon'ble Supreme Court are only in the context of the facts involved in thatcase. The appellants in those cases were faced with the situation whereadmittedly persons came to be employed as contract labourers in connectionwith the work of the establishment and by virtue of the said status ascontract labourer by carrying out certain works in connection with the work ofthe establishment when a claim came to be made for absorption as the workmenof the principal employer, the Honourable Supreme Court held in paragraph 122(5) of the judgment that such a controversy would form part of an issue to beagitated upon as an industrial dispute before the appropriate adjudicatoryforum created under the provisions of the Industrial Disputes Act as the samewould involve a debate as to whether the contractor had been interposed eitheron the ground of having undertaken to produce any given result for theestablishment or for supply of contract labourer for the work of theestablishment under a genuine contract or as a mere ruse / camouflage to evadecompliance of various beneficial legislations so as to deprive the workers ofthe benefits thereunder. In the said context, the Honourable Supreme Courtheld that if the contract was found to be not genuine, then the so calledcontract labourer will have to be treated as employees of the employer, andcould be directed to regularise the services of the contract labour in theconcerned establishment subject to the conditions as may be specified by itfor that purpose. In paragraph 123, the Honourable Supreme Court made it clear that such an adjudication would be necessary as determination of thevarious questions would require an enquiry into the disputed questions offact, which cannot be conveniently made by the High Courts in exercise of itsjurisdiction under Article 226 of the Constitution of India.

40. In this context, the Hon'ble Supreme Court also took note

of the fact that under the provisions of the Contract Labour Regulation andAbolition Act, there is no procedure prescribed or authority constituted tocarry out the above said exercise. Therefore, it became necessary to bestated that such controversies could be validly agitated before theappropriate forum created under the Industrial Disputes Act. As rightlysubmitted by Mr. N.G.R.Prasad, learned counsel appearing for some of theworkmen, under the provisions of the Act where specific powers have beendefined and invested with the Inspector of Labour to carry out the purpose ofthe enactment viz., to ensure conferment of permanent status in the event ofthe necessary contingencies being satisfied, it cannot be held that the onlyremedy available to the workmen concerned is still to move the appropriateadjudicatory forum under the provisions of the Industrial Disputes Act.

41. As far as the order of reference which came to be made at the instance of some other workmen in G.O(T) No.616 of Labour and Employment(A1) Department dated 18.07.2000 through certain unions, whereby the disputecame to be referred in respect of certain other similarly placed workmen, itwill have to be stated, that, that by itself cannot be taken to mean, that,that is the only remedy available for adjudicating their rights. At the riskof repetition it will have to be stated that though the petitioner / Boardwould claim that the workmen covered by the impugned orders were contractlabourers, there was no iota of evidence in support of the said claim or so tosay that they were contract labours at all. On the other hand, theun-rebutted evidence placed before the Inspector of Labour disclose that theconcerned workmen came to be employed by the officials of the petitioner /Board directly and by making payment of salary also after extracting the workfrom the concerned workmen. Therefore, I am unable to countenance thesubmissions made on behalf of the petitioner/Board that the only forumavailable for the concerned workmen is to move the Industrial Tribunal createdunder the provisions of the Industrial Disputes Act and not by resorting to anapplication before the appropriate Inspector of Labour constituted under theprovisions of the Act.

42. In the light of my above said conclusion, I do not find any scope to refer to the various other decisions relied upon on behalf of thepetitioner / Board except the judgment of the Hon'ble Supreme Court reportedin 'C.E.TUTICORIN THERMAL POWER STATION ..VS.. INSPECTOR OF LABOUR, TUTICORINAND OTHERS' (2002 (9) S.C.C. 752) where in respect of similarly placedworkmen whose claims came to be accepted and the conferment of permanentstatus granted by the Inspector of Labour, Tuticorin was upheld by this Court,which was also confirmed by the Hon'ble Supreme Court. Therefore, it willhave to be held that the course adopted by the concerned workmen who weresimilarly placed like that of the workmen covered in the above referred tojudgment of the Hon'ble Supreme Court are equally entitled to rely upon theabove said decision to support the orders impugned in these writ petitions.43. Be that as it may, it will have to be held that the conferment of permanent status which has been directed to be accorded by theorders impugned in the writ petitions can only be taken to mean that thestatus of the concerned workmen which were hitherto a nebulous one wouldbecome a permanent one with the petitioner / Board. The question whether sucha conferment of permanent status would entitle the concerned workmen to claimregularisation in a particular category in the services of the petitioner/Board requires further consideration by the Board. I am of the view that

while the conferment of permanent status would ensure to the concerned workmentheir permanent employment with the petitioner/board, in what category or postin which they are to be regularised is a matter which will have to be workedout by the petitioner / board by passing appropriate orders. The confermentof permanent status in the services of the Board in the appropriate positionbefitting the nature of employment hitherto performed by the concerned workmenas ordered by the Inspector of labour should be appropriately made by theBoard. Inasmuch as the Inspector of Labour having crystallised the positionthat the concerned workmen have acquired the status of permanency in theemployment of the petitioner / Board, the consequential details of suchpermanent status will have to be specified by the petitioner Board by issuingappropriate proceedings. In other words, the petitioner Board will have topass appropriate orders relating to the concerned workmen be in any existingcategory of employment or by virtue of the nature of jobs hitherto performedby them, they are to be fitted in any other post with the corresponding scaleof wages/scales/etc. and the other benefits available to them to beprescribed by the petitioner Board. In the event of such proceedings issuedby the petitioner / Board creating any controversy or dispute by the concernedworkmen therefor the said issue may have to be appropriately thrashed out inthe manner known to law. Having regard to the positive directions issued byth e Inspector of Labour, it is incombent on the part of the petitioner /Board to pass appropriate proceedings conferring permanent status to theconcerned workmen in accordance with law.

44. The failure of the petitioner / Board in not passing appropriate proceedings necessitated the petitioners in W.P.Nos.12578 to 12585of 2001, in which direction by the Inspector of Labour to confer permanentstatus came to be made long before. Though the petitioner / Board seeks tochallenge those orders in W.P.Nos.25708 of 2001 and 2700 9, 28381, 28437,29862, 29960 & 32252 of 2003, in the light of my conclusion in these writpetitions, I am of the view that the petitioner Board should pass appropriateproceedings complying with the directions of the Inspector of Labour as perthe orders impugned in the writ petitions.

45. In fine, W.P.Nos.12578 to 12585 of 2001 filed by the workmen are allowed with a direction to the respondent / Board to passappropriate proceedings as stated above within a period of six months from thedate of receipt of a copy of this order. All the other writ petitions filedby the Tamil Nadu Electricity Board, challenging the orders of the Inspectorof Labour are dismissed. No costs.

Index: YesInternet : Yes

suk/dpn

The Labour Inspector,Vellore.