Partly allowed

The Managing Director v. 1. Inspector of Plantations

Madras HC11 Dec 2009WP/13977/2000

Case brief

AI extract

What is this about?

The High Court held that interim court orders preventing termination of service do not count as valid period of employment for permanency claims. The assessing authority erred by including such days, so the award was set aside and remanded for fresh consideration.

What did the court decide?

The impugned awards are set aside and the matter is remanded to the first respondent for fresh consideration within three months, excluding the period covered by interim orders.

The Managing Director Vs 1. Inspector of… — Pension and Retirement Benefits | Madras HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 11.12.2009

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CORAM:

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THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM

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W.P.Nos.13977 to 13985 of 2000

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1.The Managing Director, Arasu Rubber Corporation Limited, Vadasery, Post Box.No.75, Nagercoil – 629 001. Kanyakumari District. 2.The Divisional Manager, Arasu Rubber Corporation Limited, Chithar Division, Chithar Colony – 629 161. Kanyakumari District. ... Petitioners in All W.Ps Vs 1.Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Thiru.Velayuthan ... Respondents in W.P.No.13977/2000 1.Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Thiru.Raman Kani ... Respondents in W.P.No.13978/2000 1.Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Thiru.Krishnankutti ... Respondents in W.P.No.13979/2000

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https://hcservices.ecourts.gov.in/hcservices/

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Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Tmt. Sarasamma ... Respondents in W.P.No.13980/2000 1. Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Thiru.Govindan Kani ... Respondents in W.P.No.13981/2000 1. Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Tmt. Indira Sarasam ... Respondents in W.P.No.13982/2000 1. Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Tmt.Vinodhini ... Respondents in W.P.No.13983/2000 1. Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Tmt.Neelamma ... Respondents in W.P.No.13984/2000

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Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District. 2.Tmt.Kunjamma ... Respondents in W.P.No.13985/2000

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Common Prayer in All W.Ps: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records of the first respondent in Petition Nos.1071/99-1, 1071/99-2 1071/99-3, 1071/99-4, 1071/99-5, 1071/99-6, 1071/99-7, 1071/99-8, & 1071/99-9 dated 05.06.2000.

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For Petitioners :T.S.Gopalan & Co For 1^st Respondent in all WPs :Mr.P.Muthukumar Govt. Advocate For 2^nd Respondent in all WPs. :No Appearance

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COMMON O R D E R

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Since the issue involved in all the Writ Petitions raise an identical question, by consent they are taken up and disposed off by a common order. The Arasu Rubber Corporation Limited, its Managing Director and the Divisional Manager are the petitioners in all these writ petitions and the challenge is to an awards passed by the first respondent herein dated 05.06.2000, in and by which the 1^st respondent held that the 2^nd respondent workmen are entitled to permanency in terms of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1972, (hereinafter referred to "as the Act"). The first respondent is the Inspector of Plantations and also the Inspector notified by the Government of Tamil Nadu under Section 5 of the Act.

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The averments in the affidavits filed in support of the Writ Petitions could be summarised as follows :-

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That the petitioner corporation was established during 1984 and the rubber plantations of the Government of Tamil Nadu were transferred and vested with the petitioner corporation and the permanent workmen, who were employed in the plantations were taken into services of the petitioner corporation. That the corporation had six divisions having a plantation area of approximately 4800 hectares. It is stated that permanent employees are involved in the regular agricultural operations and other unscheduled work are done by engaging casual workers and these casual workers are engaged for less than 150 days per year. During 1991 Trade Union filed a writ petition before this Court in W.P.No.4931/1991 for a writ of mandamus to direct the corporation to give permanent employment to 53 employees who are members of the said Union as given in the annexure to the affidavit filed in support of the said writ petition, the names of such employee were taken. It is submitted that the Union had averred in the writ petition that the 53 workmen had been working with the corporation continuously from 1987 and from 1.02.1991 they had not been permitted to report for duty and thereafter after much persuasion the workmen were agained employed from 18.03.1991. While entertaining the writ petition an order of interim injunction was granted on 02.04.1991 in W.M.P.No.7569/91 restraining in the corporation from terminating in the services of 53 workers. It is stated that the corporation filed a petition for vacating the interim injunction in

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W.M.P.No.3666/93, contending that prior to March 1991 none of the 53 casual workmen had put in one year of continuous service and they had not worked for 480 days in a period of 24 calendar months. This Court did not vacate the interim order and directed the writ petition itself to be posted for final disposal. According to the petitioner corporation, the casual workmen were continued to be engaged during the pendency of the writ petition.

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This Court by an order dated 04.12.1998, dismissed the writ petition by holding that it was a case of claims and counter claims and the Court was not inclined to go into the merits of the matter, since the workmen have to raise an Industrial Dispute to avail their remedy. This Court recorded the assurance given by the Corporation that as and when casual work was available, those casual workmen will be engaged to the extent of the actual requirement and only when they are to be engaged for a continuous period of 90 days, they would be required to get themselves sponsored by the employment exchange. Based on the said undertaking given by the petitioner corporation, the interim injunction granted in W.M.P.No.7569/91 was vacated. It is seen that the said Union filed a Writ Appeal No.1145/99 against the order made in W.P.No.4935/91 dated 04.12.1998. The Hon'ble Division Bench by order dated 23.07.1999 in C.M.P.No.11363/1999, while ordering notice of motion ordered that the service of the members of the appellant Union should not be terminated, provided they have not already been terminated. During the pendency of the Writ Appeal all the individual workmen, who are the second respondent in all these writ petitions filed a petition before the first respondent herein claiming conferment of permanent status. Accordingly, an enquiry was conducted by the first respondent and by award dated 05.06.2000, directed the petitioner corporation to confer permanent status on the second respondent workmen from 01.01.2000 with other attendant benefits. This award of the first respondent is impugned in the present writ petitions.

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The correctness of the award passed by the first respondent is questioned on three grounds. Firstly, on the ground that the period of engagement of the casual workmen in compliance with the interim order of this Court cannot be reckoned for the purpose of regularization/permanency. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Surendra Prasad Tewari Vs. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Others [2006 3 LLJ page 1026] and M.D., Hindustan Photo Films and Another Vs. Vinobha H.B. and Others [2009 3 LLJ 371] in support of his contentions.

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Secondly, on the ground that the first respondent erred in assuming jurisdiction to make enquiry, when the matter relating to permanency was pending before the Division Bench in

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W.A.No.1145/1999. The third contention being that the petitioner corporation does not have adequate work of permanent nature to be given to these casual workmen and if the award is to be complied with the petitioner corporation will be compelled to keep them idle and pay wages.

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Though, notices were served on all the second respondent workmen in these writ petitions, they have not engaged a counsel and this Court initially by order dated 24.10.2009, directed these writ petitions to be posted along with the Writ Appeal. The Registry brought to the notice of this Court that W.A.No.1145/1999 was disposed of by order dated 18.09.2000 by which the appellant Union was permitted to withdraw the writ appeal and approach the authority under the (Tamil Nadu Industrial Establishments Confirmation of Permanent Status to Workmen) Act 1981 and if such application is made it shall be disposed of within four months from the date of presentation and till then the interim orders already passed shall continue. It is to be noted that even prior to the disposal of the writ appeal the individual workmen have invoked the remedy under the Act by filing a petition on 13.08.1999 itself and it appears that this fact was not placed before the Hon'ble Division Bench, when the Writ Appeal was permitted to be withdrawn with liberty as indicated. Subsequently, the matters were posted in the list, by order dated 30.10.2009 the name of the learned counsel, who had appeared in the writ appeal for the Union was directed to be printed in the cause list, even thereafter none appeared for the second respondent workmen and the matter was heard on merits. As noted above the correctness of the impugned award has assailed on three grounds.

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The second ground of attack being that pending W.P.No.1145/1999, the first respondent ought not to have adjudicated the matter. This contention cannot be raised, since the writ appeal itself was withdrawn on 18.09.2000 and the petitioner corporation had contested the claims of the workmen on merits before the first respondent, even when the writ appeal was pending. Therefore, this cannot be stated to be a ground for interfering with the impugned award. The other two contentions could be dealt together.

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The Sheet Anchor of the argument by the learned counsel appearing for the petitioner is that the award of the first respondent suffers from an error apparent on the face of record, since the number of days worked pursuant to interim orders granted by this Court had been reckoned for the purpose of conferment of permanent status. From page 2 of the award, it is seen that the petitioner corporation has specifically raised the point that the workmen had been engaged pursuant to interim orders granted in

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W.P.No.4539/1991. However, while considering as to what relief to be granted to the respondent workmen, the 1^st respondent observed that from upon perusal of the employee chart produced by the petitioner corporation, it was seen that from January 1998 to December 1999, that is for a period of 24 calendar months, the workmen have worked for 277 days and since they were continuously employed, they were entitled for weekly off and such weekly off should also be taken for the purpose of computing the period of employment as also the days, which have been declared as festival holidays and the national holidays and if these are all taken into consideration, the first respondent held that these workmen have worked for 599 days in 24 calendar months.

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This is the only reasoning given by the first respondent and the basis of such is a employment chart produced by the management, it is seen that there is not list of documents marked and there is no oral evidence on either side. The Hon'ble Supreme Court in the case of Surendra Prasad Tewari, as referred supra, termed the period of employment covered by an interim orders as "litigious employment', and observed that an employee, who had continued under cover of an order of the Court, which is described as "litigious employment" would not be entitled to any right to be absorbed or made permanent in service. Similarly, in the case of M.D., Hindustan Photo Films, as referred above, the Hon'ble Supreme Court held that employees, who are appointed as trainees for a particular period at a fixed salary, their services cannot be regularised merely for the fact that they were allowed to continue in employment by an interim order of the Court. Therefore, the law is settled on the said issue and by virtue of an interim order if an employee has continued in service such continuance cannot be treated as a period of engagement to be counted for the purpose of computing the required number of test to satisfy the claim for permanency. In fact the Hon'ble Supreme Court in cases were interim orders have been granted in matters pertaining to land acquisition cases have held that while computing the period, the period covered by stay orders have to be excluded. Therefore, the submission made by the learned counsel appearing for the petitioner merit acceptance, inasmuch as the first respondent has failed to take into consideration the specific contention of the petitioner corporation that the workmen have not worked for 240 days in 24 calendar months and they have continued by virtue the interim order granted in W.P.No.4539/1995.

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This in my view is an error, which is apparent on the face of the award and therefore the award is liable to be interfered on this ground. As could be seen from the averments in the writ petition filed in support of the writ petition that an interim injunction was granted on 02.04.1991 from termination of the services of 53 workmen and the interim order continued to be

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in force till the dismissal of the writ petition on 04.12.1998. Subsequently, in C.M.P.No.11363/99 in W.A.No.1145/1999 dated 23.07.1999, the Hon'ble Division Bench directed that the services of the members of the appellate Union should not be terminated, provided they have not been already terminated. When the writ appeal was disposed off on 18.09.2000, the Hon'ble Division Bench directed the interim order will continue till the parties approach the authority under the Act. Thus, it is to be noted that the interim order continued to be in operation. Since, it has been held that the first respondent failed to take into consideration the specific issue regarding the period covered by the interim order, it has to be held that the impugned order suffer from infirmity as it has been passed without taking into consideration the relevant facts.

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Therefore, I deem it just and proper that the matter should be remanded for reconsideration by the first respondent. Accordingly, the writ petition is allowed, the impugned awards are set-aside and the matter is remanded for fresh consideration by the first respondent, who shall consider the issue raised by the petitioner corporation as to whether the period of engagement, which was taken into consideration was a period covered by interim orders of this Court and also as to whether the holidays namely festival holidays and weekly off and such other holidays should be also treated as period of employment. On remand the first respondent shall issue fresh notice to both the petitioner corporation as well as the second respondent workmen in all these writ petitions and decide the matter a fresh and in accordance with law, as expeditiously as possible preferable within a period of three months from the date of receipt of a copy of this order. Till the matter is heard and decided by the first respondent, the interim order, which was granted in W.A.No.1145/1999 to the effect that the services of the second respondent workmen shall not be terminated, provided they have not already been terminated shall continue. No costs.

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Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar

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pbn

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The Inspector of Plantations 13/7-6/B Arul Nagar, Nagercoil, Kanyakumari District.

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+1cc to M/s.T.S.Gopalan & Co., SR 67843

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