The Tamil Nadu Civil Supplies Vs N.Neelakandapillai@Neelakandan

3.The Tamil Nadu Civil Supplies Corporation Ltd., Represented by its General Manager (Administration), No.12, Thambusami Street, Keezhpaukkam, Chennai – 10. ...Respondents

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(Third respondent is hereby given up)

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PRAYER:-

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W.P(MD)No.1620 of 2019

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PRAYER:- Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, calling for the records, pertaining to the impugned order passed by the second respondent in petition in No.Na.Ka.No.2684/2016 dated 03.08.2018 and quash the same.

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For Petitioner : Mr.G.Mohankumar For R1 : Mr.K.K.Udhaya Kumar Legal Aid Counsel For R2 & R3 : Mr.S.Vinodh Government Advocate

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O R D E R

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This writ petition is filed by the Tamil Nadu Civil Supplies Corporation Ltd., Kanyakumari, challenging the order passed by the Assistant Commissioner of Labour (Enforcement), (Conferment of Permanent Status Act), Kanyakumari/the second respondent in Na.Ka.No.2684/2016, dated 03.08.2018, in and by which, the second respondent has directed the petitioner to confer permanent status to the first respondent from the date of completion of 480 days of working in the petitioner Corporation.

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W.P(MD)No.1620 of 2019

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2.The learned counsel appearing for the petitioner

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Corporation submits that:-

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i. The first respondent was a freelancer and he was engaged as a load man through Maistry at Konam Godown of the petitioner Corporation, based on the requirement for doing the intermittent work of loading and unloading, on a piece rate basis.

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ii. He is neither a daily wager nor an employee on consolidated payment. The first respondent like loadmen were doing the intermittent works and their attendance is not compulsory.

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iii.Therefore, they cannot invoke the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen Act,1981, as per sub section 3 of section 1.

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iv. In order to substantiate his case, the learned counsel has relied on the order of this Court in W.P(MD) No.17288 of 2010, dated 19.07.2022, wherein, it was held that temporarily appointed part time or casual labour will not be entitled to regularisation ''even if they had put in long period of service''

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and ''the load man engaged on piece rate basis in the Corporation have no right to claim permanency status''.

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v. The above order of this Court is based on the Judgment of the Honourable Supreme Court in State of Tamil Nadu Vs. R.Govindasamy reported in 2014(4) SCC 769 and State of Tamil Nadu Vs.A.Singamuthu , reported in 2017 (4) SCC 113.

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vi. Even according to the first respondent, he was only a load man and he has been engaged only to carry out the intermittent works, that too through Maistry. Therefore, he is not entitled for permanency, as per Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen Act,1981, as per sub section 3 of section 1.

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3.Though notice has been served on the first respondent, there was no representation for him. Therefore, this Court appointed Mr. Udhayakumar, learned counsel, who is having rich experience in labour side, as a legal Aid Counsel, to defend the first respondent.

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W.P(MD)No.1620 of 2019

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4.The learned Legal Aid Counsel representing the first respondent submits that:-

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i. The petitioner Corporation, by its proceedings, dated 08.12.2006 have directed the Godown in-charge to utilize the services of the first respondent along with nine others.

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ii. Thereafter, by a proceedings, dated 10.05.2013, the General Manager (Administration), Tamil Nadu Civil Supplies Corporation, Chennai has directed the petitioner to issue pink card with certain benefits, applicable therein to the first respondent as they have worked for more than 240 days in a year.

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iii.The first respondent filed petition No.2684 of 2016, before the second respondent, seeking to direct the petitioner to grant permanent status as he was working for nearly 12 years continuously and completed the statutory period of 480 days.

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iv. It was considered after the order of this Court in WP(MD)

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No.23290 of 2016, dated 02.12.2016.

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v. The second respondent proceeded on the basis of the documents filed by the first respondent as the petitioner Corporation have never disputed by documents that the first respondent was not continuously working for 480 days.

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vi. The employer's mere denial of such service in its counteraffidavit, without providing any substantial material or records is not sufficient ground to reject the claim of the first respondent for permanent status as the first respondent has pleaded in his petition that he is working continuously for 12 years without any break and completed the statutory period of 480 days.

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vii.Being the custodian of records relating to the employees, the burden is upon the petitioner Corporation to prove that the first respondent has not worked for 480 days or 12 years continuously, however, no such documents were filed before the second respondent. Therefore, such a contention cannot be raised before this Court.

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viii.When the first respondent has put in 12 years of continuous service, the petitioner cannot extract work alone and deny the benefit of permanency, which amounts to unfair labour practice.

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ix. Though the initial burden is upon the first respondent, which is discharged by providing the proceedings of the Corporation, the petitioner Corporation had to provide documentary evidence that the first respondent did not work for 480 days, if they claim so.

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5.In addition to his submissions, the learned counsel for

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the petitioner Corporation by relying upon the proceedings of the Regional Manager, the Tamil Nadu Civil Supplies Corporation Ltd., Kanyakumari, in Se.Mu.Order.No.AE4/1269/2017, dated 30.07.2020 and the proceedings of the Managing Trustee, TNCSC Employees Contributory Provident Fund Trust, TNCSC, Chennai, in APF9/022159/2020, dated 28.11.2020 submits that in fact the first respondent was provided with all benefits, which is eligible for a

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W.P(MD)No.1620 of 2019

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permanent employee and he has been paid with Rs,1,85,823/towards ECPF settlement.

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6.This Court considered the rival submissions made and

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also perused the materials placed on record.

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7.The first respondent was engaged by the Tamil Nadu Civil Supplies Corporation along with nine others, by a proceedings, in E7/5742/2004, dated 17.10.2005. This decision of the Tamil Nadu Civil Supplies Corporation, engaging ten loadmen in Konam Godown was questioned by T.N.C.S.C, Paniyalar Sangam (INTUC), before this Court by way of a writ petition. This Court, while entertaining that writ petition has granted an interim order and subsequently dismissed that writ petition. Therefore, a permission was requested from the Head Office for engaging those ten loadmen, who have been discontinued pursuant to the interim order of this Court. Accordingly, permission was granted by the Chairman cum Managing Director (HO), Chennai, by his order in RC.No.ALB4/

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W.P(MD)No.1620 of 2019

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41079/2005, dated 06.12.2006 to the Regional Manager, Tamil Nadu

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Civil Supplies Corporation, Konam, Nagercoil to engage those ten

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loadmen appointed as per the proceedings in No. E7/5742/2004, dated 17.10.2005. Accordingly, the Regional Manager has passed a proceedings on 08.12.2006 and it would be relevant to record the same as under:

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OFFICE OF THE REGIONAL MANAGER,

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T.N.C.S.C LTD, KONAM, NAGERCOIL – 4

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Rc.No.AE4/5742/2004 Dated: 08.12.2006

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MEMO

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Sub: T.N.C.S.C Ltd – Kanyakumari Region – 10 loadmen engaged in Konam Godown – Writ petition filed by T.N.C.S.C, Paniyalur – Sangam (INTUC) and K.Gangadurai in Madurai Bench of Madras High Court – stay obtained – cases dismissed – permission requested to engage 10 loadmen again – instructions issued – regarding.

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Ref: 1.This office Proc.No.E7/5742/2004, Dt:17.1.2005 2.This office Memo No.E7/5742/2004, Dt:14.11.2005 3.C.M.D.H.O. Chennai Rc.No.ALB4/41079/2005, Dt: 06.12.2006.

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The attention of the Godown incharge, Konam is drawn tot he references cited and he is informed that the stay granted to this office proceedings 1^st cited has been lifted by the Honourable High Court, Madurai. He is directed to utilise the following 10 (Ten) loadmen already mentioned in the reference 1^st cited temporarily in Konam Godown.

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Tvl.

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1.M.Karunakaran . Nagarajan

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2.R.Murugesan 3.A.Santhakumari

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4.A.Arumugham

5.S.Muthumony

6.T.Raja

7.N.Neelakandan

8.R.Ranjit

9.S.Muthulingam 10.T.Paramarthalingam

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Sd/-S.V.Chockalingam Regional Manager /by order/

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Superintendent

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To

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The Godown Incharge, Konam – through Despatch Clerk for service & return.

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The first respondent was shown in Sl.No.7 in the list. The above

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proceedings is placed in the typed set of papers filed by the

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petitioner. By this proceedings, totally 10 loadmen, including the first respondent have been engaged with the following conditions:

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1.Nkw;gb RikJ}f;Fk; njhopyhsu;fSf;F jpdf;$yp md;dhu; gzpGupe;j

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gzpf;F jFe;jthW fofk; epu;zak; nra;jthW toq;fg;gLk;.

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2.Nkw;gb RikJ}f;Fk; njhopyhsu;fs; jq;fsJ $yp jtpu NtW ve;j rYiffSk; rl;léu;tkhf toq;f ,ayhJ.

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3.jw;fhypfkhf gad;gLj;jg;gLk; RikJ}f;Fk; njhopyhsu;fs; fPo;gbahik kw;Wk; xOq;fPdkhf nray;gLk; gl;rj;jpy; vt;tpj Kd;

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mwptpg ; Gkpd;wp NtiyapypUe;J epWj;jp itf;fÜk; VJthFk;.

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4.,tu;fSf;F vd;W jdpahf tUif gjpNtL guhkupf;fg;gl Ntz;Lk;.

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8.From the above proceedings, it appears that those

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loadmen are subjected to disciplinary proceedings and their attendance would be recorded and maintained in the Attendance Register. However, during the course of the proceedings before the second respondent, the Management has not produced the Attendance Register maintained by them, which has been taken as an adverse inference as against the Management, by the second respondent to pass this impugned order. The proceedings dated 30.07.2020 produced by the Management also revealed that the first respondent was allowed to retire on attaining his age of superannuation on 31.07.2020. The subsequent proceedings of the Managing Trustee in APF9/022159/2020, dated 28.11.2020 would reveal that the ECPF contribution was also collected from the first respondent. This proceedings is extracted as under:-

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ORDER

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Sanction is hereby accorded for payment of Rs.1,82,823/-

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(Rupees One Lakh Eighty Five Thousand Eight Hundred and Twenty

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Three only) towards the ECPF settlement of 100% to Thiru.N.Neelakandan, Loadman, Kanniyakumari Region retired on 31.07.2020. His ECPF Account No.L23154. The details of settlement

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are as noted below and the payment made through RTGS mode.

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Subscription	Rs.1,30,895/-
Contribution	Rs. 54,928/-
Total	Rs.1,85,823/- (Rupees One Lakh Eight Five Thousand and Eight Hundred and Twenty Three only)

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The Regional Manager, Kanniyakumari Region is requested to handover the proceeding copy to the individual on proper acknowledgment and send the same to Head office within a week and also to make necessary entries in the Service Register of the individual for the above payment.

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Considering the proceedings referred as stated supra,

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this Court is of the view that the first respondent load man has been engaged by a proceedings of the Regional Manager, with certain conditions. His attendance was also recorded and maintained in the Attendance Register. Moreover, he has been allowed to retire from service, on his attaining the age of superannuation on 31.07.2020.

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That apart, during his service period, ECPF contribution was also collected from him. Therefore, this Court is not inclined to interfere with the findings of the second respondent in ordering for conferment of permanent status to the first respondent from the date of completion of 480 days of working in the petitioner Corporation. The petitioner Corporation shall provide all other benefits, which is eligible for the permanent employee of the Tamil Nadu Civil Supplies Corporation to the first respondent. This Court places its appreciation to Mr.Udhayakumar, the learned Legal Aid Counsel, who defended the case of the first respondent in an effective manner. The Legal Services Authority is directed to pay a sum of Rs. 15,000/- to the learned Legal Aid Counsel.

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