Judgment:
ORDER
K. Chandru, J.
I. History of indentured Labour:
1.1. Tea gardens like other industrial establishments must depend on offering sufficient attractions in order to maintain their labour force. The emigrant must be convinced that Assam holds out the opportunities of a better life than is open to him in his home land. If he is not convinced, nothing else will secure a flow of immigrants; if he is convinced it will be difficult to keep him away.
(Royal Commission on Labour in India, 1929).
1.2. Many of the tea gardens in Assam and Bengal are situated in highly malarial regions and this has a blighting influence on the health of the workers. Many of the workers are anaemic and fall easy victims to disease. Further, most of the workers are recruited from distant places and life in tea gardens involves for them a change in climate and environments that cannot but have a depressing effect. To make matters worse, it often happens that food ration in tea gardens is not sufficient and most of the workers suffer from malnutrition.
1.3. Nearly all the workers in South Indian gardens are recruited from the plains and the sudden change in elevation, rainfall and climate appreciably lower their resistance to disease. There is also a change in their diet. Women and children employed on work given to the maistry on a contract basis have to work unduly long hours and even instances of corporal punishment of children by the maistries with a view to extracting more work from them are not unknown.
No arrangements are made for supplying drinking water to the workers in the field.
(Labour Investigation Committee (Main report), (1946) : Page 153.)
II. Plantation Labour gets Legal protection:
2.1. The agony of plantation workers (otherwise known as Tea Garden labours) was sought to be remedied only after India became a republic in the form of Plantation Labour Act, 1951. The Act for the first time attempted to provide certain minimum safeguards in respect of health and welfare of Plantation Labours. The Act provides for certain statutory service conditions including housing, hours of work, weekly holidays, leave including annual leave, maternity leave etc. Despite these safeguards, wages payable to workmen were largely left to collective bargaining, failing which notified minimum wages were paid to these workmen.
2.2. Even before that Act, in order to prevent unjustified layoff, retrenchment and closure, the Industrial Disputes Act, 1947 was amended and Chapter V-A was introduced by Amendment Act 43/1953. In relation to application of that chapter, explanation appended to Section 25A was introduced. Explanation iii states that 'plantation' as defined under Section 2(f) of the Plantations Labour Act is also covered by the said chapter and it was also declared as industrial establishment covered by the Chapter.
2.3. Though under Section 25A(1)(b), industrial establishments, which are of seasonal character or in which work is performed only intermittently, were excluded from the purview of Chapter V-A or V-B. If any question arises whether an industrial establishment is of seasonal character or whether work performed therein is only intermittently, the decision of the appropriate Government was made final.
2.4. The workmen and the management of various plantations in Tamil Nadu went in for joint certification of Standing Orders in respect of plantations. The Standing Orders were certified by the Certifying Officer on 24.12.1964. The Standing Orders 4(c) and (d) define temporary workman and causal workman, which are as follows:
4(c) Temporary Workman' means one who is engaged temporarily for a specific period or one who is employed for work for a temporary nature not exceeding 6 months.
(d) 'Casual Workman' is one who is employed for work not exceeding 15 days continuously and who has no obligation to report for work daily.
2.5. However, as the safeguards, Chapter V-A was not satisfactorily safeguards the workmen from being indiscriminately laid-off or retrenched or denied employment on account of closure, Chapter V-B was introduced into the Industrial Disputes Act, 1947 (inserted by Central Act 32/1976) with effect from 5.3.1976. Under Section 25L(3), the plantation as defined under Section 2(f) of the Plantations Labour Act was also covered by the said Chapter. Under the said Chapter, if an 'industrial establishment' has more than 100 workers, then prior approval of the competent authority/Government is necessary for effecting layoff or retrenchment or closure. Section 25K(2) also states that if a question arises whether an industrial establishment is of seasonal character or whether work performed therein is only intermittently, the decision of an appropriate Government thereon shall be final. In effect, the said provision is akin to Section 25A(2).
III. National Labour Commission Laments:
3.1. In view of the large scale complaint about the plight of the labours, the Central Government appointed the First National Labour Commission presided by Justice P.B. Gajendragadkar (former Chief Justice of the Supreme Court of India). The said Commission by its extensive hearings covered all industries (both public and private sectors) in India and submitted its report in the year 1969. With reference to the position of casual labour in respect of several industries including the plantations came to the notice of the Labour Commission as found in paragraph 29.26, which is as follows:.During the course of our inquiries many unions complained that employers arbitrarily terminated the services of casual workers to prevent them from completing the prescribed period of service and thus deprived them of the benefits. We have also come across cases particularly in smaller establishments where within a week of termination of service, the same person is engaged afresh for the same job, making the employer's intention obvious.
3.2. The Commission in its recommendation in paragraph 29.29 had recommended as follows:
29.29: ...We consider the prevailing practice of discontinuing employment of a casual worker for short periods and again re-employing him to debar him from enjoying the benefits of a permanent worker as pernicious. We recommend that if employment is discontinued for a short period and the worker is re-employed, this short period should not be treated as a break in service. We also recommend that after a casual worker has completed a stipulated period of service, he should be allowed the same benefits which is a permanent worker enjoys.
IV. Tamilnadu Pioneer in permanency legislation:
4.1. It is at this stage, the Tamil Nadu State Legislature enacted the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to workmen) Act, 1981 (Tamil Nadu Act, 46 of 1981), hereinafter referred to as Permanent Status Act. The aim and object of the Act as found in the Statement of Objects and Reasons reads as follows:
Many workers in industrial establishments are being kep under temporary rules and on that pretext are being denied of various statutory as well as non-statutory benefits which are given to permanent workers. Mainly, in many establishments non-permanent workers are given consolidated wages which are far below the occupational wages and do not carry the benefit of dearness allowance paid to permanent employees. Similarly they are denied various other benefits like payment of festival, cyclone and marriage advances, payment of ex-gratia over and above the statutory bonus, supply of uniforms and tea, preference for the dependants of the employees in the matter of employment, etc. In order to curb various unfair labour practices and following the decision at the 25th meeting of the State Labour Advisory Board the Government have decided to undertake a special legislation to confer permanent status to the workers in various industrial establishments who have put in a service for a period of four hundred and eighty days in a period of twenty-four calendar months in such industrial establishments.
4.2. This Act applies to every industrial establishment as found in Section 1(3) and it reads as follows:
1(3) It applies to every industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than fifty workmen were employed on any day of the preceding twelve months. If any question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently the decision of the Government thereon shall be final:
Provided that the Government may, by notification, apply the provisions of this Act to any industrial establishment employing such number of workmen less than fifty as may be specified in the notification.
4.3. Even under this Act, plantations were covered as found in Section 2(3)(b) of the Act, which reads as follows:
2. Definition.-In this Act, unless the context otherwise requires,-.
(3) 'industrial establishment' means-.
(b) a plantation as defined in Clause (f) of Section 2 of the Plantations Labour Act, 1951 (Central Act LXIX of 1951); or
4.4. The charging provision of the Act is under Section 3, which reads as follows:
3. Conferment of permanent status to workmen.--(1)Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months in an industrial establishment shall be made permanent.
(2) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman.
Explanation I.--[For the purposes of computing the continuous service referred to in Sub-sections (1) and (2), a workman shall be deemed to be in continuous service during the days on which --];
(i) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act XX of 1946) or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
[Explanation II.--For the purposes of this section, 'law' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act.]
4.5. The Inspectors appointed under Section 4 of the Act are empowered to enforce the provisions of the Act and in the course of discharging his duties, if he finds that a workman's name is not found in Form-I, his power is delineated under Rule 6(4), which reads as follows:
6. Maintenance of registers by employers.-
(4) Any employee who finds his name not entered in the list referred to in Sub-rule (2) or finds that the entries have not been made correctly or finds that though entries regarding his service have been made correctly but he has not attested the entries in the register of workmen in Form 1 may make a representation to the Inspector concerned. The Inspector after examining the representation or after making enquiries may issue suitable directions to the employer for the rectification of the register in Form 1 or for the issue of orders conferring permanent status to the workman concerned.
4.6. The Act under Section 1(3) excludes the application of establishment, which is of seasonal character or in which work is performed only intermittently. The language found in the section is similar to Sections 25A(1)(b) and 25K(2) of the I.D. Act. Apart from non application of the Act under Section 1(3), Section 9 provides for exempting any employer or an industrial establishment from the provisions of the Act. Section 9 reads as follows:
9. Power to exempt.-The Government may, by notification, exempt conditionally or unconditionally any employer or class of employers or any industrial establishment or class of industrial establishments from the provisions of this Act.
V. Unfair Labour practice abolished:
5.1. The Industrial Disputes Act itself came to be amended by introduction of Chapter V-C (inserted by Central Act 46/1982 with effect from 21.8.1984), wherein 'unfair labour practices' are prohibited by virtue of Section 25T. Penalty can be imposed for violation in terms of Section 25U. The term 'unfair labour practice' is defined under Section 2(ra) and 'unfair labour practices' are set out in V schedule. However, the I.D. Act do not provide any machinery to prevent an employer from committing unfair labour practice except by launching prosecutions against them. Under V Schedule, the unfair labour practice on the part of the employer as found in the first part includes several practices and item No. 10 of the Schedule reads as follows:
10. To employ workmen as 'badlis', casuals or temporaries and to continue them a such for years, with the object of depriving them of the status and privileges of permanent workmen.
VI. Planters seek privilege:
6.1. The plantation management represented by its Association, i.e. Planters Association of Tamil Nadu sent a joint memorandum, dated 1.7.99 to the State Government seeking for exemption under Section 9 of the Permanent Status Act to all the plantations. In that memorandum, they got the signatures of some of their kept unions to make it appear that the unions have agreed to seek such exemptions. It is ununderstandable as to how any trade union of workmen can seek for exemption from a labour enactment when it provides statutory permanency to plantation workers.
6.2. Paragraphs 5 and 6 of the joint memorandum, dated 1.7.99 reads as follows:
Para 5. Recently, acting under the provisions of the Conferment of Permanent Status Act, Inspectors of Plantations have been passing orders directing the managements to make several workers permanent on the basis of 480 days of work in a period of 24 calendar months. The employers are disputing the method of calculation of 480 days of continuous service as determined by the officers, and the Trade Unions anticipate long-drawn out disputes and litigation on this. Besides, such orders passed by the officers will do away for ever with the healthy and rational norms evolved between the parties over a long time, which in turn undermine the status, standing and role of the Trade Unins.
Para 6. Because the agricultural nature of plantations, it is the employers' contention that Plantations are of a seasonal establishments and except for crop harvesting in tea, all the works are performed intermittently. A large number of temporary and casual workers are employed to meet seasonal exigencies of crop harvesting in tea and coffee and continuous work for such people is not guaranteed. Such a system can lead to innumerable dispute and litigation if registration is done strictly under the provisions of the Act. This will lead to avoidable Industrial unrest.
6.3. However, the State Government by its order, dated 11.8.2000 refused to grant any such exemption. After setting out the objects behind the Act, the State Government informed that plantations are covered by the Act and that since it is a social legislation protecting the interest of labours, exemption sought for cannot be granted. This order of the State Government was not challenged and it had become final. Therefore, the provisions of the Plantations Labour Act are applicable to all the plantations including the petitioners in these writ petitions.
6.4. The fact that employers sought for exemption from the provisions of the Labour enactment itself will prove that such an enactment applies to them and without that exemption, they are bound to implement the provisions of the Act. In the present case, the planters took up a contention that by virtue of Section 1(3), it was an establishment of seasonal character and that the work is performed only intermittently and therefore, it will not apply to them.
6.5. It must be stated that it was the very same contention that was raised by them before the State Government in their applications, seeking exemption under Section 9. Therefore, they cannot be allowed to approbate and reprobate in the matter of application of Permanent Status Act to various plantations who are before this Court.
6.6. The Supreme Court vide its judgment in State of T.N. v. K. Sabanayagam reported in : (1998) 1 SCC 318 in paragraph 13 held as follows:
13. In this connection it is, therefore, too late in the day for the Tamil Nadu Housing Board to take a somersault and to try to submit that despite its consistent course of conduct spread over decades accepting the position that it was statutorily liable to pay the minimum bonus as per the Act, but for the exemption sought by it under Section 36 of the Act, in fact the Act itself did not apply to it under Section 32(v)(c) of the Act and all attempts to get exemption from the Act under Section 36 were misconceived or uncalled for or an exercise in futility. We must, therefore, proceed on the basis that it was an admitted position on behalf of the Housing Board during the relevant accounting years with which we are concerned that it is governed by the provisions of the Act and but for exemption under Section 36 of the Act it would be bound to pay the minimum statutory bonus as laid down by the Act to its employees. On the basis of this admitted position and stand on behalf of the Housing Board the High Court was quite justified in observing that the Housing Board had waived its objections regarding non-applicability of the Act under Section 32(v)(c) of the Act in the present cases. There is no question of any estoppel against statute as tried to be submitted by learned Senior Counsel for the appellants in this connection. On factual aspects if a consistent stand is taken by the Housing Board to the effect that it is governed by the Act, implicit in the stand is the admission on facts that statutory exemption under Section 32(v)(c) of the Act factually is not earned by the Board. When on facts the Housing Board has not thought it fit to raise such a factual dispute or contention for the relevant accounting years its stand admitting the non-existence of the relevant data for invoking Section 32(v)(c) of the Act must be eld binding to the Housing Board. It is obvious that facts which are admitted need not be proved. The Housing Board itself by its conduct admitted non-existence of relevant factual data for invoking the powers under Section 32(v)(c) of the Act. Therefore, it can certainly be held to be bound by its admissions on these facts and it can at least to the lowest be said to have waived its contention in this connection for the relevant accounting years. It would amount to estoppel on facts and not on law and would also certainly amount to a conscious giving up of its claim for statutory exemption under the said provision. Thus on the principle of waiver and estoppel the second contention of the appellants has to be repelled as has been rightly done by the High Court. Point No. 2 is, therefore, answered in the negative.
VII. Plantation labour seek permanency:
7.1. Since workmen were not made permanent with a view to deprive their legitimate dues, some of the contesting respondents in these writ petitions filed applications before the Inspectors notified under the Act. There were three types of cases in this batch of writ petitions. In some cases, the inspector on his own entered into the establishment and after going through the registers made endorsement to make those workers permanent. In some other cases, on complaints, inspections were made and orders were passed in favour of workmen. There were third type of cases where workmen invoked the power of Inspectors under Rule 6(4) and then, sought for the grant of permanent status. In those cases, after hearing their applications, the authorities on the materials produced were satisfied and issued appropriate orders granting permanent status to workmen covered by these writ petitions.
7.2. Aggrieved by those orders passed by the authorities on various dates, writ petitions were filed by plantation management. An interim stay was also obtained pending writ petitions. These matters were grouped by the Registry and posted for final hearing. Some of the workers were not even served and in their absence, the writ petitions as against them will have to be dismissed and no steps were taken to make any substitute service.
VIII. Contentions by counsels:
8.1. Heard the arguments of Mr. Vijay Narayan, SC for Mr. R. Parthiban, Mr. E.K. Nandakumar and Mr. P. Vijayan for M/s. King & Patridge appearing for petitioners and Mr. A. Arumugam, learned Special Government Pleader appearing for official respondents, M/s. G.B. Saravana Bhavan, George Williams, J. Saravanavel, N. Sampath and K.S. Narayanan counsels appearing for contesting respondents. In view of the fact that the contentions raised were common, all writ petitions were heard together and a common order is passed.
8.2. Mr. Vijay Narayan, learned Senior Counsel appearing for some of the plantation owners contended that under Section 1, the plantations are seasonal establishments and contesting respondents were engaged only intermittently. When this issue was raised before the Inspector under the Act, he did not consider the same in view of the Government's refusal to grant exemption. Notwithstanding the refusal of exemption under Section 9, the petitioners are entitled to raise this issue in respect of each case. If for some reasons, the Inspector is not able to answer the issue, he should have referred the matter for the State Government to decide and he ought not to have rejected their contentions. Assuming that the Act applies and the workmen have not put in continuous service of 480 days during the period of 24 calendar months and therefore, they are not eligible to the benefits under Section 3 of the Permanent Status Act. The workers have failed to prove that they have actually put in 480 days of service and some workers have left and did not come to work as there is no requirement for them to report for work. In essence the contract of service must be in force for all 24 calendar months.
8.3. The learned Senior Counsel further contended that the Inspector did not give sufficient opportunities and blindly took note of the statement made by workers and therefore, all the impugned orders suffer from material irregularity. In calculating 480 days of actual employment, the contesting respondents cannot include their weekly off and other leave and that would not amount to continuous service. Under the Permanent Status Act, whenever workmen raised disputes regarding their permanency, advise were given by the Conciliation Officer and in some cases, settlements were also entered into under Section 18(1) granting permanent status to workmen. Therefore, the provisions of Section 3 cannot be pressed into service. During the pendency of litigation, number of workers had left their service and therefore, in respect of them, the impugned order cannot have any application.
8.4. Mr. E.K. Nandakumar, learned Counsel for other employers, apart from adopting the arguments of the learned Senior counsel, stated that a joint application for exemption is pending with the State Government and therefore, his clients asked to keep the proceedings in abeyance till the disposal of the request made by the employers. However, the Inspectors proceeded to examine the cases of workmen and granted the relief, which would amount to denial of principles of natural justice to the management. But, in the counter statement filed by them, there is no defence raised with reference to the merits of the claims made by the workmen.
8.5. In respect of the contesting respondents, Mr. K.S.Narayanan and others contended that the Permanent Status Act is a social piece of legislation and it has to be interpreted in tune with the social philosophy behind the legislation. The workmen have proved to the satisfaction of the authority their total number of days worked in respect of each one of them. All holidays and weekly off will have to be counted for the purpose of calculating their continuous service. It is not necessary that workmen's contract should be continued for 24 calendar months for claiming the benefit under the Act. Under Rule 6(4), the authority has wider power to inspect the records and to pass a suo motu order. Since the Government has rejected exemption, the petitioners' contention that the Act will not apply is erroneous.
8.6. The contesting respondents further stated that the employment in plantations are neither seasonal nor intermittent. Where the work in plantation is seasonal or workers are intermittently engaged, as already found, the joint certified Standing Order defines temporary worker and casual worker. In none of the cases, the contesting respondents are qualified to come within those terms as they were admittedly engaged beyond 15 days or 6 months, as the case may be. Further under V Schedule appended to the Industrial Disputes Act, unfair labour practices are specifically prohibited under Section 25T. Therefore, the workmen are eligible to get confirmed if they are able to satisfy that they have worked beyond 480 days within a period of 24 calendar months.
8.7. They further submitted that the question whether a particular industrial establishment is seasonal or the workers are employed intermittently has to be decided only by the appropriate Government. In the present case, the management's application under Section 9 claiming exemption for the very same reasons have been rejected by the State Government, by order, dated 11.8.2000 and that has not been challenged. Therefore, they cannot once again raise the same issue before the Inspector. Under the Act, the Inspector is bound by the order passed by the Government.
IX. Plantations for all seasons:
9.1. In respect of Section 25A(2), a division bench of this Court in Kohinoor Saw Mill Company Ltd. v. State of Madras : 1957 (2) LLJ 210 held as follows:.As we said what the Government would have to decide, if the question arose under Section 25A(2) is, whether an industrial establishment is of a seasonal character, that is, whether the industrial establishment is normally of a seasonal character. It may be that a given industrial establishment is not normally of seasonal character, though the industry itself might be of seasonal character in that region.... Let us take, for example, a reverse case. Suppose an industrial establishment, which is not normally of a seasonal character, was able to work for less than 240 days in a given period of twelve months, and the employer takes advantage of that fact and claims exemption under Section 25A(2) and claims the determination of the questin whether his industrial establishment is of a seasonal character. That work had been carried on intermittently during that period may not even, in some cases, be due to conditions beyond the control of the employer. We have already pointed out that 'intermittent' as used in Section 25A(2) should also be construed as 'normally intermittent.' But the adoption of the objective standard claimed by the Government as something infallible, would result in an industrial establishment being treated as seasonal, merely because work had not been carried on for more than 240 days in a period of one year obviously selected by the employer for computation...
9.2. The same view was also taken by the division bench of Kerala High Court in Dalmia International, Kundara v. Industrial Tribunal, Alleppey and Anr. reported in : 1974 2 LLJ 90.
9.3. Further, the Andhra Pradesh High Court vide its judgment in A.P. Federation of IITD Co. Workers, Guntur and Ors. v. Government of A.P. Reported in 1983 Lab. IC. NOC 91 held that under Section 25K, where a particular establishment is seasonal or not has to be decided by the Government and not by the High Court in a writ petition under Article 226 of the Constitution of India.
9.4. Very recently the Supreme Court vide its decision in Director, Fisheries Terminal Department v. Bhikubhai Meghajibhai Chavda reported in 2010 (1) SCC 47 while dealing with the scope to interfere with the finding regarding seasonal industrial establishment under Section 25A(2) in paragraph 12 held as follows:
12. In the normal course, it is the decision of the appropriate Government which is final in determining whether the said industry is seasonal in nature. As has been observed by the Labour Court and the High Court, there has been nothing brought on record by the appellant to support its contention that fisheries is a seasonal industry. There has been no order from the Government which has been produced by the appellant to state that the fisheries industry is seasonal. There has been no mention of any decision on the part of the appropriate Government with regard to declaring fisheries as a seasonal industry. Therefore, we concur with the finding of the Labour Court wherein they have concluded that the appellant cannot be classified as a seasonal industry.
9.5. Since the petitioners management themselves collectively sought for exemption under Section 9 and they are having failed in their attempt, cannot take contradictory stand to defeat the claim of workmen as held by the Supreme Court in State of T.N. v. K. Sabanayagam : (1998) 1 SCC 318 (cited supra).
X. Contours for continuous service:
10.1. The contention that their services were not continuous since their contracts were not continued for all 24 calendar months and that the decision of the division bench of this Court in Metal Powder Co. Ltd., Tirumangalam and Anr. v. The State of Tamil Nadu and Anr. reported in : 1985 (2) LLJ 376 support the case of the petitioners also cannot be accepted. On the contrary, the division bench in para 37 held as follows:
37. Accordingly, in the view which we have taken, we must hold,
(1) The Explanation to SECTION 3 is incapable of enforcement and must therefore be held to be redundant.
(2) The provisions of SECTION 3(2) of the Act are valid except that the clause 'or on account of non-employment or discharge of such workman for a period which does not exceed three months and during which period a substitute has been employed in his place by the employer' is void on the ground that it amounts to an unreasonable restriction on the right of the employer.
(3) An apprentice or a badli worker could not be included in the 'workman' referred to in Sections 3(1) and (2) of the Act, and they will, therefore, be not entitled to the benefit of Section 3.
(4) The Act will not supersede a settlement between the workers and the employer so far as it deals with the subject of conferment of permanent status to workmen.
(5) The Act cannot be held to be retrospective in character.
10.2. When the matter went to the Supreme Court, the Supreme Court in State of T.N. v. Nellai Cotton Mills Ltd. reported in : (1990) 2 SCC 518 held in paragraph 9 as follows:
9. That apart, the view taken by the High Court, in striking down a portion of Sub-section (2), in our opinion, cannot be found fault with. Sub-section (2) of Section 3 consists of three parts. The first part refers to interruption of service including service which may be interruption on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout. The second part consists of the portion which has been struck down by the High Court as unreasonable restriction on the right of the employer. The third part refers to cessation of work which is not due to any fault on the part of the workmen. The provisions under the first and the third parts seem to be similar to the terms of Section 25B of the Industrial Disputes Act which also provides for continuous service of the workman. The second part dealing with non-employment and discharge of a workman is distinct from the first and the third parts. It refers to the period during which there is no subsisting relationship of master and servant. We agree with the High Court that the word 'non-employment' would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service, much less in continuous service. Therefore, the period of non-employment or the period after discharge cannot be counted for the purpose of giving continuity of service. If the discharge is set aside and workman is reinstated by process known to law the workman automatically gets continuity of service. No special provision is necessary for such purposes.
10.3. Both the judgments were subsequently referred to by a subsequent division bench judgment of this Court in Mamundiraj N. and Ors. v. Bharat Heavy Electricals Ltd., Trichy and Anr. reported in 1999 (I) LLJ 622. Interpreting the earlier decisions, in paragraphs 18,22 to 24, the division bench observed as follows:
18. Keeping the above observations in view and adhering to the purposive interpretation, the intention of the Legislature and the object of the legislation to meet the evil prevalent in the Industrial field, it emerges that for conferment of a permanent status on a workman, he is required to work in an industrial estblishment for a period of 480 days in preceding 24 calender months. Interrupted period of service for no fault of workman cannot be unaccounted for the purpose of calculating 480 days of continuous service. Even cessation of work which is not due to any fault on the part of the workman cannot be debited to account of the workman for calculating 480 days of continuous service mush less in case of an unfair labour practice. .
22. The continuous service in the context of the scheme and the text of the Act does not postulate a continuous relationship of master and servant. Our considered view is what the statute accepts that the workmen should be in the employment of the employer for a period of 480 days in preceding 24 calender months. To hold otherwise would not only alter the provisions of the Act as well as the object but would result in draconian rule of law resulting in perpetuating injustice.
23. The words, 'cessation of work' has to be read in the context which it is used in the statute. In our considered view cessation of work would be stopping of work or passing of the work or even discontinuance of the work. As in the present case, the cessation of work has not been brought about by the workman nor it can be termed to be due to any fault on the part of the workman, rather it is other way around i.e. the respondent has brought about cessation of work for the specified period through unfair labour practice by articulating the terminology of the status of a casual worker as a nomenclature for a regular workman for denying the right to conferment of permanent status designed by the statute.
24. The deeming provisions of an employee putting uninterrupted service has been provided by inclusive definition, which means any interruption including non-employment or discharge of such workman or cessation of work without any fault on the part of the workman had to be counted for calculating the period of 480 days of continuous service. In our considered view, the sole of the section and the quint-essential provided by the State for conferment of status of permanent workmen are:
(1) A continuous service for 480 days in preceding 24 calender months.
(2) In order to determine the continuous service the perception or the ordinary rule of relationship of master and servant cannot be imported into the statutory provisions to frustrate the very object of the Act.
(3) Cessation of work as envisaged by the act, does have a different colour and different from the discharge of employment or ceasing the relationship of employer and employee or subsistence of relationship of master and servant for conferment of permanent status the continuity of relationship of employer and employee or relationship of master and servant cannot be termed to be of paramount consideration especially when an end to the said relationship has been brought about by the employer for no fault of the workman. If we may hasten to add, especially in violation of the public policy provided by the 1981 Act.
10.4. Further, this Court in Andhra Bank, Salem v. Inspector of Labour and Anr. reported in 1994 (1) LLN 501 had interpreted the provisions of the Act. In paragraph 13, it had observed as follows:
13. ...In such situation, once an 'establishment' falls within the definition of 'establishment' under Clause(e) of Sub-section (3) of SECTION 3 of the Permanent Status Act, it goes without saying that the provisions of the said Act are applicable, in construing the conferment of permanent status to any workman, who fulfills the criteria as laid down under Sub-section (1) of SECTION 3 thereof, in the sense of completion of continuous service for a period of 480 days in a period of 24 calendar months, notwithstanding anything contained in any other law for the time being in force, unless and until the Government, invoking its power under S.9 of the Permanent Status Act exempts conditionally or unconditionally any employer or class of employers or any industrial establishment or class of industrial establishments from the provisions thereof....
10.5. Apart from this, another learned judge of this Court in construing Section 2 of the Payment of Gratuity Act in his judgment in Management of Sri Akilandeswari Mills Ltd., Salem v. Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act), Salem and Ors. reported in : 2000 (1) LLJ 1411 in paragraph 6 observed as follows:
6. Under Section 2(c), 'Continuous service' means uninterrupted service and includes service which is interrupted by sickness, accident, leave, lay-off, strike or a lockout or cessation of work not due to any fault of the employee concerned whether such uninterrupted or interrupted service was rendered before or after commencement of the Act. In my view, though there is a cessation of work on Sundays, national holidays or weekly holidays, the cessation of work is not due to any fault of the employee and once it is held that the cessation of work during those days is not due to any fault of the employees Sundays, weekly holidays and national or festival holidays are to be included in the computation of the period of continuous service under Section 2A of the Gratuity Act.
10.6. In interpreting Section 25B of the I.D. Act, which is more or less in tune with the amended provisions of the definition term 'continuous service' will also include even broken spells of employment as held by the Supreme Court in Standard Motor Products of India Ltd. v. A. Parthasarathy and Anr. reported in : (1985) 4 SCC 78. The following passage found in paragraph 2 may be usefully extracted below:
2. Shri G.B. Pai, learned Counsel for the appellant Management submitted that the workmen were not entitled to any closure compensation under Section 25FFF as they had not been in continuous service for not less than one year in the undertaking immediately before such closure. His submission was that the continuity of service was broken by the two periods of illegal strike and therefore, the workmen could not be said to have been in service for not less than one year. There is no force in this submission. Section 25B(1) of the Industrial Disputes Act says that a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted by a strike which is not illegal. According to Shri Pai, since the strike in the case was illegal, there was a break in the continuity of service. There would be force in the submission of Shri Pai if Section 25B(2) did not exist. Under Section 25B(2), where a workman is not in continuous service within the meaning of Clause (1) for a period of one year he shall be deemed to be in continuous service for a period of one year, if the workman, during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than two hundred and forty days. In the present case, even if the period of illegal strike is excluded, the number of days during which the workman actually worked under the employer wculd be found to be more than 240 days. That being so it has to be held that the workmen were in continuous service for a period of one year immediately before the date of closure....
XI. Sabbath also counts for service:
11.1. The other contention that holidays cannot be included for the purpose of calculating the continuous service also does not stand to reason. Under the Plantations Labour Act, Chapter VI deals with leave with wages for the workman. Section 30 allows every plantation worker to have leave with wages for one day for every 20 days for the work performed by him. Apart from that, Section 20 read with Rule 69 of the Tamil Nadu Plantations Labour Rules, 1985 provides for weekly holiday for the plantation workers wherein the workman is entitled to have Sunday as a compulsory weekly off.
11.2. Therefore, apart from actual days worked by him, for which wages have been paid, the workmen are entitled to calculate earned leave and weekly off, sickness leave and maternity leave. The Supreme Court in considering the similar provisions under the I.D. Act in a case in The Workmen of American Express International Banking Corporation v. The Management of American Express International Banking Corpn. reported in : (1985) 4 SCC 71, in paragraphs 4 and 5 observed as follows:
4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the 'colour', the 'content' and the 'context' of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, we had occasion to say,
Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
5. ...What is continuous service has been defined and explained in Section 25B of the Industrial Disputes Act. In the present case, the provision which is of relevance is Section 25B(2) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer'. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The learned Counsel for the Management would urge that only those days which are mentioned in the Explanation to Section 25B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages - and we see no impediment to so construe the expression - there is no reason why the expression should be limited by the explanation. To give it any other meaning than what we have done would bring the object of Section 25F very close to frustration. It is not necessary to give examples of how Section 25F may be frustrated as they are too obvious to be stated.
In the light of above, the contention that the weekly off and the other holidays cannot be counted also does not merit acceptance.
11.3. In the matter of a plantation worker claiming maternity benefit, it was held that payment for 12 weeks did not mean 72 days (i.e. paid working days), but it should be paid for a total of 84 days. The said interpretation was rendered by the Supreme Court in B. Shah v. Presiding Officer, Labour Court reported in : (1977) 4 SCC 384. The following passages found in paragraphs 18 and 20 may be usefully extracted below:
18. Bearing in mind the above mentioned dictionary or popular meaning of the term 'week', we think that in the context of Sub-sections (1) and (3) of Section 5 of the Act, the term has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid Sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman worker's actual absence i.e. for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so, the Legislature instead of using the words 'for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day' would have used the words 'for the working days falling within the period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days'. Again the word 'period' occurring in Section 5(1) of the Act is a strong word. It seems to emphasise, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court..
20. Thus we are of opinion that computation of maternity benefit has to be made for all the days including Sundays and rest days which may be wageless holidays comprised in the actual period of absence of the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per cent of the wages which she was previously earning in terms of Section 3(n) of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interests of both the woman worker and her employer.
XII. Settlement cannot supersede the statutory right:
12.1. The fact that there was some arrangements between workmen and the management in the form of advise by the Labour Officer or there was 18(1) settlement and therefore, the existing arrangement cannot be disturbed also does not merit acceptance. Explanation 2 to Section 3 clearly says that the said section will have an over-riding effect over any award, agreement, settlement, instrument or contract of service whether made before or after commencement of the Act. Explanation 2 was amended by the Tamil Nadu Act 44/85 and was made to come into effect with effect from 1.1.1982. The necessity to introduce such explanation arose after the lacuna was pointed out by the earlier division bench in Metal Powder Co. case (cited supra). In that case, the division bench observed that over riding effect cannot disturb the settlement between the parties. Therefore, the legislature made specific insertion of Explanation 2 to have the Act to over ride any agreement or settlement. The amendment was also noted by the Supreme Court in Nellai Cotton Mills case (cited supra). The court found that the amendment did not set aside the earlier judgment, but took away the legal basis of the earlier settlement.
12.2. This Court in Tamil Nadu Civil Supplies Corporation Modern Rice Mill Engineering Section Employees Union (represented by its Secretary), Sundarakottai v. Tamil Nadu Civil Supplies Corporation, represented by its Managing Director, Madras and Anr. reported in 1999 (3) LLN 286 held that employer cannot get over the statutory prescription by issuing any order or instructions. The provisions of the Act will over ride such circular or instruction.
XIII. Inspectors power insulated:
13.1. Insofar as the power exercised by the Inspector under the Act is concerned, it is a peculiar power. His power came to be considered by this Court in Tamil Nadu Handicrafts Development Corporation Limited, represented by its Secretary, Madras and Anr. v. The Inspector of Factories, Range No. II, Madurai and Anr. reported in 2000 (1) MLJ 251. In repelling the contention of the management that an opportunity was not given when the officer passed an order, in paragraphs 11 and 12, P. Sathasivam, J. (as he then was) dealt with the scope of an Inspector under Rule 6(4) and observed as follows:
11. ...I have already stated that before passing the order, the first respondent inspected the premises, verified the records, heard the grievances of the workers through their Union Secretary and representative of the petitioner Management. In such a circumstances, there is no hesitation to come to a conclusion that the first respondent Officer has complied with the mandate of the Hon'ble Supreme Court enunciated in the Maneka Gandhi's case. : A.I.R. 1978 S.C. 597.
12. ...when the Inspector has to determine whether the workman is entitled to the benefit of Section 3 and when the employer contests this right, he has to make the necessary enquiries and these enquiries must culminate in a speaking order disposing of the contentions of the employer, and the workman...
...I have already mentioned the statutory obligation on the part of every employer to maintain Register of workmen in Form I. The Inspector is authorised to verify the Registers and take appropriate decision....
13.2. In the present case, it is not as if the employer did not have any obligation to provide necessary materials. In fact in some of the cases, the officers have exercised suo motu power and in some cases, on complaint, they inspected the records and made necessary endorsement. Even in cases where applications were filed by the contesting respondents, it contains details and the management did not seriously challenge those details except taking a legalistic stand and raised technical objections. If the employer wanted to resist the claims, they could have produced proper registers to prove their stand that the workmen have absented themselves from duty or that they had stayed away from work, thereby violating the terms of contract. The Inspector can take adverse inference about the conduct of the management. Ultimately, the authority constituted under the Act is entitled to take a view on the basis of the materials placed before him. Considering the narrow compass in which this Court can have a judicial review over such matters, this Court under Article 226 of the Constitution will not interfere with the findings recorded by the officer unless it is perverse. Since the commission of an unfair labour practice has been specifically prohibited by virtue of Section 25T, the denial of permanency to those workmen for years together cannot also be accepted by this Court.
13.3. In cases represented by Mr. E.K. Nandakumar, the Management except by contending that proceedings must be kept in abeyance, did not place any further materials, which made the officers to pass appropriate orders on the basis of the available materials with them. Their objection before the authority was more to avoid disturbing the existing practice and additional financial burden and not with reference to merits of the individual claims made by the contesting respondents. Going by summary procedure to be adopted by the officer, he need not eternally wait for the employer to come with appropriate replies. Therefore, the present allegation of principles of natural justice was violated cannot be countenanced by this Court.
13.4. The last attempt made by the management that some of the workers have left their employment and they were no longer in service will not invalidate the impugned orders. It cannot be a matter over which this Court can excise its mind.
XIV. The Finale:
14.1. Before this case concluded, it must be observed if the present contentions of the employers are accepted, it will take the workers back to the days of colonial exploitation, under the doctrine of laissez faire and social control over such employments were non existent. The right of workmen cannot be defeated by such spurious arguments advanced by the employers. The only gain that the employer have had in these cases was to stall the process of implementation of the statutory right accrued to the workmen and underwritten by the Inspector for over a decade without any justification.
14.2. Very recently in the Supreme Court judgment's in Harjinder Singh v. Punjab State Warehousing Corporation Civil Appeal No. 587 of 2010 (SLP(C) No. 6966/2009), A.K. Ganguly, J. in his concurring opinion observed as follows:
I am in clear agreement with Justice Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it.
In doing so, this Court should make an effort to protect the rights of the weaker sections in view of the clear constitutional mandate. Social Justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos, in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
14.3. Bofore conclusion, it is necessary to recall the poignant observations made by two Supreme Court judges in their latest ruling in Harjinder Singh's case (cited supra), forewarning the courts in getting entangled in the globalisation myth:
The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic to the plight of industrial and unorganised workers.
-Justice G.S. Singhvi.
I share the anxiety of Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy. Any attempt to dilute the constitutional imperatives in order to promote the so-called trends of globalisation may result in precarious consequences. Reports of suicidal deaths of farmers in their thousands from all over the country, along with escalation of terrorism, throw a dangerous signal.
-Justice A.K. Ganguly.
14.4. In the light of the above, all the writ petitions will stand dismissed. Consequently, connected miscellaneous petitions stand closed.
14.5. Since the petitioners had virtually stalled the benefits of a crucial labour welfare legislation, in each one of the writ petition, the petitioner is directed to pay Rs. 2000/- (Rupees two thousand only) as costs to the Tamil Nadu Labour Welfare Fund constituted under the Tamil Nadu Labour Welfare Fund Act within a period of four weeks from the date of receipt of copy of this order.