The Management Of Sri Venkates v. Deputy Chief Inspector Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.09.2019

CORAM:

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.28397 of 2003 The Management of Sri Venkateswara Paper & Board Ltd Swaminathapuram Palani 642 113.

rep.by its Managing Director.

...Petitioner

vs.

1. The Deputy Chief Inspector of Factories Madurai.

2.K.Karuppusamy 3.N.Chinasamy 4.K.Kulanthaivel 5.S.Ramesh 6.S.Karuppuswamy 7.R.Prakash 8.K.Sethuraman 9.K.Kalimuthu 10.K.Swaminathan 11.K.Ponnuswamy 12.M.Marimuthu 13.T.Palanisamy 14.R.Kumarasamy 15.N.Karuppusamy 16.K.Sakthivel 17.P.Ramesh 18.V.Mariappan 19.A.Kamaraj 20.N.Senthil Murugan 21.M.Selvaraj 22.M.Venkatachalam 23.P.Thirumalaisamy 24.C.Selvaraj 25.K.Thangaraj 26.M.Karupusamy 27.M.Nagaraj 28.C.Manoharan 29.V.Subramaniam 30.N.Senthil Kumar 31.P.Manickaraj

32.M.Dhandapani 33.K.K.Murugesan 34.A.Mohan 35.V.Kannimuthu 36.S.Ravi 37.R.Ramesh 38.E.Saravanan 39.R.Palanisamy 40.S.Marimuthu 41.K.Ranganathan 42.T.Balakrishnan 43.M.Abimanyu 44.D.Sathiskumar 45.R.Sivaraj 46.G.Damodaran 47.K.Karuppusamy 48.K.Balasubramaniam 49.V.Maruthamuthu 50.R.Ramesh 51.K.Nachimuthu 52.R.Ponnusamy 53.V.Kandasamy 54.K.Palanisamy 55.S.Sengottuvelu 56.M.Ravi 57.Chellamuthu 58.E.Muthusamy 59.K.Kanagaraj Respondents 2 to 59 rep.by General Secretary, Bharathiya Dindigul District General Workers' Union, 2/252 Near Mayavan koil Vayalur, Pushpathur Po, Palani 624 618.

... Respondents PRAYER:

Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Prohibition, prohibiting the 1st respondent from proceeding case No.E.6661/02. For Petitioner : Mr.Anand Gopalan for M/s.T.S.Gopalan For Respondents :

Mr.J.Ramesh Additional Government Pleader for R1.

M/s.Vanathi Srinivasan for RR2 to 59.

O R D E R

The petitioner has filed this writ petition to prohibit the first respondent from proceeding with the case No.E.6661/02.

2. The writ petitioner is the management of Sri Venkateswara Paper & Board Limited. The respondents/workmen were engaged as labourers through contractors.

3. The learned counsel for the writ petitioner states that the respondents /workmen were terminated from service on 24.12.2001 and those workmen raised an industrial dispute in I.D.No.137 of 2004 before the Labour Court. It is brought to the notice of this Court that the Industrial Dispute filed challenging the order of termination was dismissed by the Labour Court, Thiruchirappalli on 21.10.2016.

4. When the Industrial dispute was raised by the workmen challenging the order of termination, the very same workmen filed a petition simultaneously to grant permanent status under the provision of the Conferment of Permanent Status Act.

5. The learned counsel for the petitioner contended that the competent authority under the Permanent Status Act has no jurisdiction to entertain the application, when the Industrial Dispute challenging the order of termination was pending. During the pendency of the Industrial Dispute, the workmen were not employed in the writ petitioner company and they were not at all in service. When the employees are not in service, the question of granting permanent status under the Permanent Status Act would not arise at all. Thus, the competent authority had committed an error in entertaining the application under the Conferment of Permanent Status Act, when the workmen were not at all in service and further raised a dispute in I.D.No.537 of 2004.

6. In respect of the said contentions, the learned counsel for the petitioner cited the judgment in the case of Tamil Nadu Civil Supplies Corporation Workers' Union vs. Tamil Nadu Civil Supplies Corporation Limited and others reported in 2001 4SCC 469, the relevant paragraph N0.10 is extracted hereunder: "10. In any event, as stated above, the services of the workmen have been terminated. Therefore, even if the said Act squarely applied and the establishment of the 1st respondent was not of a seasonal character and the work was not intermittent, the remedy would now be to file the appropriate proceedings against the order of termination. In this view of the matter no purpose would be served by dealing with the correctness of the finding given by the Division Bench."

7. The Division Bench of this Court in the case of S.Sivakumar and others vs. Deputy Inspector of Factories, Chennai and others reported in 2007(1)L.L.N.302 held as follows: "14.

In view of the above discussion, we are of the considered view that for claiming the permanent status under Section 3 of the Act, there must be subsistence of the relationship of master-servant or employer-employee between the parties and if this requirement is not satisfied even though the petitioners have completed four hundred and eighty days in a period of twenty-four calendar months in the respondent industrial establishment, in the absence of master-servant or employer-employee relationship between the petitioners and the respondent-management as on the date of making of the application under Section 3 of the Act, they cannot maintain the application under Section 3 of the Act seeking permanent status.

Unless and until the order terminating their serivces are set aside by the competent authority, they cannot approach the competent authority under the Act seeking conferment of permanent status as per Section 3(2) of the Act."

8. Citing these two judgments, it is contended that the first respondent has no jurisdiction to entertain the application under the conferment of Permanent Status Act, in view of the fact that at the time of filing of the application under the Permanent Status Act, the workmen were not at all in service and Industrial Dispute raised challenging the order of termination was pending before the Labour Court in I.D.No.537 of 2004.

9. This being the factum of the case, this Court has no hesitation in coming to a conclusion that the actions of the first respondent in entertaining the application under the Conferment of Permanent Status Act is unsustainable and without any jurisdiction. Consequently, the first respondent is prohibited from proceeding with the case No.E.6661/02.

10. In the result, the writ petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (CS-V) //True Copy// Sub Assistant Registrar ssb

To The Deputy Chief Inspector of Factories Madurai.

+1 cc to M/s.T.S.Gopalan & Co., Advocate, S.R.No.81268 +1 cc to the Government Pleader, S.R.No.81581 W.P.No.28397 of 2003 BR(CO) SSM(04/11/2019)