Salem Mandala Anaithu Paniyalargal v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.02.2022

CORAM

THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU W.P. No. 11760 of 2019 Salem Mandala Anaithu Paniyalargal Sangam (Registration No. 944/SLM), Rep. by its General Secretary, Having registered office at No. 44-A, Mariamman Koil Street, Hasthampatti, Salem - 07.

... Petitioner -vs1. The Secretary to Government, Labour and Employment Department, Fort St. George, Chennai - 600 009.

2. The Management, 331, Idanganasalai Primary Agricultural Co-op. Credit Society Limited, Idangansalai (Post), Sangagiri Taluk, Salem District - 636 301.

... Respondents Prayer:- Writ Petitions filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Certiorarified Mandamus, calling for the records on the file of the First Respondent pertaining to G.O. (D) No. 17 dated 19.01.2017 and quash the same and further direct the First Respondent to refer the dispute raised by the Petitioner Union for adjudication by an appropriate forum created under the provisions of the I.D. Act, 1947.

For Petitioner :

Mr. K.V.Shanmuganathan For Respondents:

Mr. P.Gurunathan, Additional Government Pleader (for R1) Mr. L.P.Shanmugasundaram (for R2)

O R D E R

Heard Mr. K.V.Shanmuganathan, Learned Counsel for the Petitioner,Mr. P.Gurunathan, Learned Additional Government Pleader appearing for the First Respondent and Mr. L.P.Shanmugasundaram, Learned Counsel for the Second Respondent and perused the materials placed on record, apart from the pleadings of the parties.

2.

The Petitioner, which is a Trade Union, seeks to espouse the cause of its member, viz., Thulasi Rajan, for regularization of his service in the establishment of the Second Respondent, viz., Idanganasalai Primary Agricultural Co-operative Credit Society Limited. The request of the Petitioner for referring the said demand for adjudication under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act' for short), was declined by the First Respondent, viz., Government of Tamil Nadu, by G.O. (D) No. 17, Labour and Employment (D1) Department dated 19.01.2017 on the ground that the relief for grant of permanent status to person concerned could be made under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. 3.

Learned Counsel for the Petitioner submits that when two legal remedies are available, the choice has to be left to the person who seeks relief and in the absence of any legal bar conferring exclusive jurisdiction only under one of the fora, the refusal to entertain the claim on the ground that the alternative remedy is available cannot be sustained. He relies on the decision of the Hon'ble Supreme Court of India in Nirchiliya -vs- Management of Safire Theatre [(1991) 1 LLJ 111], which has been followed by this Court in the subsequent decisions in Superintending Engineer -vs- Labour Inspector, Vellore (Order dated 09.12.2003 in W.P. No. 17692 of 1999 etc., batch) and A.Kajendran -vs- Presiding Officer, Central Government Industrial Tribunal, Chennai (Order dated 04.02.2011 in W.A. No. 1881 of 2010) in that regard.

4.

It is the contention of Learned Counsel for the Second Respondent that there is no jural relationship of employer and employee between the Second Respondent and the members of the Trade Union of the Petitioner, and as such, the First Respondent is justified in refusing to refer the matter for industrial adjudication.

5.

There is considerable force in the contentions raised by Learned Counsel for the Petitioner impeaching the impugned order passed by the First Respondent. The limited scope of jurisdiction of the appropriate Government under Section 10 of the Act to determine as to whether dispute exists or is apprehended and then refer it to adjudication on merits has been reiterated in a series of decision of the Hon'ble Supreme Court of India. In this context, reference may be made to the decision of the Hon'ble Supreme Court of India in Telco Convoy Drivers Mazdoor Sangh -vs- State of Bihar [(1989) 3 SCC 271], where it has been explained that while exercising powers under Section 10

(1) of the Act, the function of the appropriate Government is administrative in nature and not a judicial or quasi-judicial one and the Government cannot delve into the merits of the dispute in carrying out that exercise and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it. Again in M.P.Irrigation Karamchari Sangh -vs- State of M.P. [(1985) 2 SCC 103], it has been restated that it has to be understood as a rule that adjudication of demand made by workmen should be left to the Tribunal to decide and the same could be refused only on the ground of patent frivolousness. In view of the dictum laid down in the said decisions, which squarely apply to the fact situation in this case, where there is no legal bar under any of the statutory provisions requiring the concerned workmen to resort to a specific legal remedy when options to pursue before any of the different fora is available, the only reason attributed by the First Respondent to decline reference that there is availability of another remedy, cannot be sustained. 6.

The contention of Learned Counsel for the Second Respondent that the said S.Thulasi Rajan in respect of whom regularization is claimed is not the direct employee of the Second Respondent is exactly the factual dispute that has to be adjudicated by the Labour Court. It is neither within the province of the First Respondent nor this Court at this pre-mature stage to get embroiled into that controversy, which has to be determined following the prescribed procedure under the Act after affording full opportunity of hearing to both parties concerned. 7.

In view of the foregoing discussion, it is not possible to uphold the impugned Order in G.O. (D) No. 17, Labour and Employment (D1) Department dated 19.01.2017 passed by the First Respondent declining to refer the dispute raised by the Trade Union of the Petitioner for regularization of the said S.Thulasi Rajan in the establishment of the Second Respondent, and the same is set aside and the matter is remitted to the First Respondent to pass fresh orders for referring that for

adjudication before the jurisdictional Labour Court under Section 10 of the Act. Such exercise shall be completed by the First Respondent expeditiously and report of compliance in that regard shall be filed before the Registrar (Judicial) of this Court by 30.09.2022 under written acknowledgment. In the result, the Writ Petition is ordered on the aforesaid terms. No costs.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar vjt To

1. The Secretary to Government, Labour and Employment Department, Fort St. George, Chennai - 600 009.

2. The Management, 331, Idanganasalai Primary Agricultural Co-op. Credit Society Limited, Idangansalai (Post), Sangagiri Taluk, Salem District - 636 301.

3. Copy to The Registrar (Judicial), Madras High Court, Chennai - 600 104.

W.P. No. 11760 of 2019 RK(CO) CT 15/06/2022