(Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, to set aside the order dated 14.10.2019 in W.P.No.11684 of 2009 and consequently direct the first Respondent to regularize the services of the Appellant from the year 2005 onwards and pay arrears of wages and other benefits.)
Senthilkumar Ramamoorthy, J.
1. This intra court appeal is filed by a person who worked as a plumber on contract basis with the first Respondent. The Appellant was not a party to the writ petition. Therefore, C.M.P. No.25383 of 2019 is filed for leave to file the appeal against the order dated 14.10.2019 in W.P. No.11684 of 2019 and leave is granted for reasons set out in this judgment. The said writ petition was filed by the first Respondent herein to quash the Award dated 10.07.2008 in I.D. No.121 of 2005 whereby the services of the Appellant herein were directed to be regularized from the date of the Award. By the impugned order, the learned single Judge allowed the writ petition and, consequently, quashed the Award dated 10.07.2008 in I.D. No.121 of 2005. The aggrieved worker has presented this appeal along with the petition to grant leave to file the appeal.
2. We heard Mr.Balan Haridas, the learned counsel for the Appellant and Mr.K.Srinivasamurthy, the learned counsel for the first Respondent. By consent, the main appeal is taken up for disposal at the SR stage.
3. The learned counsel for the Appellant submitted that the Appellant worked as a plumber for the first Respondent from March 1989 onwards. His services were availed of through different contractors. He was the only plumber in the first Respondent and worked on a general shift from 9.00 a.m. to 7.00 p.m. The work was assigned by the first Respondent and supervision was also carried out by the first Respondent. In spite of working for many years, his services were not regularised. In these circumstances, he raised a dispute through the Chennai Airport Contract Workers Union, of which he is a member. Therefore, conciliation proceedings were initiated by the conciliation officer but such conciliation ended in failure. Consequently, the Government of India referred the dispute for adjudication. This resulted in I.D.No.121 of 2005. Accordingly, the Chennai Airport Workers Union, the third Respondent herein, filed a claim statement before the Industrial Tribunal at Chennai, wherein it was prayed that an Award should be granted holding that the Appellant is entitled to be regularised by the first Respondent with effect from the date of completion of 480 days of continuous services in 24 calendar months, i.e. with effect from the year 1987.
4. In order to establish the entitlement for regularisation, the Appellant was examined as W.W.1. He filed a proof affidavit dated 09.09.2006 and five documents were exhibited through him as Exhibits W1 to W5. These documents included the photo pass for the period 1985 to 1991, which was marked as Ex.W1; the application for issuance of photo pass from 2004 to 2006, which was marked as Ex.W2; the entry permit from 2003 and 2004, which was marked as Ex.W3; and the wage register for the months of August and September 2005, which were marked as Ex.W4 and Ex.W5 respectively. The first Respondent herein cross examined W.W.1. The first Respondent adduced evidence through Mrs.Revathi Gopalan, Assistant Manager-HRD, who was examined as M.W.1. During the examination-in-chief of M.W.1, 22 documents were exhibited as Exs.M1 to M22. These documents included the registration of the first Respondent under the Contract Labour (Regulation and Abolition) Act,1970, as the principal employer (Ex.M1); the contract issued to M/s. Blessing Constructions, which was marked as Ex.M2; the Bill issued by the contractor for payment of work(Ex.M4); the proof of receipt of payment by the contractor (Ex.M5); the ESI remittance (Ex.M6); the contract awarded to M/s.Blessing Constructions for the period from 01.10.2005 to 30.09.2006(Ex.M14); the Bill dated 05.12.2005(Ex.M15); the Bill dated 01.06.2006(Ex.M21) and proof of payment thereof(Ex.M22). M.W.1 was cross examined on 19.03.2007. During the cross examination of M.W.1 on 19.03.2007, M.W.1 stated that plumbing works were done by one plumber from the year 1985. She also stated that the plumbing work is looked after by the Property and Facilities Department of Air India and supervised by the Senior Manager (Technical). She admitted that she does not know directly the work done by plumbers. She also admitted that the Appellant is the only contract employee doing plumbing work. In addition, she stated that she did not personally know the plumbing work done in the first Respondent premises.
5. The learned counsel submitted that the Industrial Tribunal considered the pleadings and the evidence recorded by both sides and pronounced the Award dated 10.07.2008. Although S.Iyyaswami was examined as M.W.2 and Ex.M24 to Ex.M30 were exhibited through the said witness, he was not present for cross-examination and, therefore, the Industrial Tribunal concluded that his evidence could not be taken into consideration. Therefore, the evidence of W.W.1 and M.W.1 were considered. Upon examining the evidence of M.W.1, the Industrial Tribunal noted that minor plumbing work was done by one plumber from the year 1985. The Industrial Tribunal also noted that M.W.1 admitted that she did not know whether anybody from the contract agency came to the Airport to supervise the work of the plumber. The learned counsel pointed out that the Industrial Tribunal appraised the evidence carefully and concluded that the first Respondent had availed of the services of the Appellant for more than 21 years and that the contractor was engaged as an intermediary only for the purpose of payment of salary. As regards the control and supervision of the employee, it was exclusively in the hands of the first Respondent. On that basis, the Industrial Tribunal concluded that it is a fit case for regularization and that such regularization should be from the date of Award.
6. The learned counsel for the Appellant contended that the said Award is based on a reasonable appreciation of the pleadings and evidence and that there is no perversity in the Award of the Industrial Tribunal. In these facts and circumstances, he contended that the Writ Court should not have interfered with the Award of the Industrial Tribunal. However, the learned Judge allowed the Writ Petition largely on the basis of the judgment of the Hon’ble Supreme Court in State of Karnataka v. Umadevi (Umadevi) (2006) 4 SCC 1, which only applies to disputes relating to the regularization of employees in public service. In other words, it does not apply to workmen who are governed by labour legislations that confer statutory power to grant remedies such as regularization. In response to the contention of the first Respondent that the Industrial Tribunal should have declined to exercise jurisdiction because the Appellant did not prove that he is a member of the third Respondent Union, the learned counsel for the Appellant submitted that the Industrial Tribunal cannot question the reference by the Central Government. In effect, as a creature of statute, once the reference is made by the appropriate Government, the jurisdiction and scope of enquiry of the Industrial Tribunal is to determine the dispute and not to question the reference. For this proposition, he relied upon the judgment of the Hon’ble Supreme Court in National Engineering Industries Limited v. State of Rajasthan and others (National Engineering Industries), (2000) 1 SCC 371. In particular, he relied upon paragraph 27 of the judgment where the Hon’ble Supreme Court held, in relevant part, as under:
“27. The Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. It cannot go into question on validity of the reference....”
7. The learned counsel contended that the Appellant is entitled to regularization on the basis of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (the TN Permanent Status Act). According to the learned counsel, the TN Permanent Status Act applies to all “establishments” as defined therein. With regard to the definition of “establishment” under Section 2(3)(e) of the TN Permanent Status Act, he contended that the word “establishment” is defined therein by incorporating the definition of establishment in Section 2(6) of the Tamil Nadu Shops and Establishments Act, 1947 (the TN Shops and Establishments Act). Upon incorporation by reference of the definition of establishment from the TN Shops and Establishments Act, such definition becomes a part and parcel of the TN Permanent Status Act. In support of this principle, the learned counsel relied upon the judgment of the Division Bench of this Court in V.Elayaperumal v. State Bank of India (Elayaperumal), 2007 (2) LLN 212. In particular, he relied upon paragraphs 12 and 17 of the said judgment wherein the Court considered the provisions of the TN Shops and Establishments Act and that of the TN Permanent Status Act and concluded that the definition of establishment is virtually lifted from the TN Shops and Establishments Act and incorporated in the TN Permanent Status Act. Consequently, the TN Permanent Status Act would apply to such establishments unless and until exemption is obtained from the State Government under Section 9 of the TN Permanent Status Act. In this case, he pointed out that no such exemption was obtained by the first Respondent from the State Government. Therefore, the TN Permanent Status Act applies to the first Respondent. With regard to the non-applicability of the judgment of the Hon’ble Supreme Court in Umadevi to labour law disputes, he referred to and relied upon the judgment in Maharashtra State Road Transport Corporation and Another v. Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556 (MSRTC), wherein it was also held as follows in paragraphs 35 and 36:
“35. Umadevi is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.
36. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU and PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU and PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.”
Therefore, the learned counsel concluded his submissions by contending that the Writ Court erroneously interfered with the Award of the Industrial Tribunal by wrongly relying upon the judgment in the Umadevi Case. Consequently, this appeal is liable to be allowed.
8. In response and to the contrary, submissions were made by the learned counsel for the first Respondent. The learned counsel referred to a list of dates and events. By referring thereto, he submitted that between 01.01.1995 and 30.09.2000, T.Ramanujalu was engaged as a contractor by the first Respondent. The said T.Ramanujalu engaged a person called S.Raghu for carrying out plumbing work for the first Respondent. Thereafter, another contractor named M/s. Unique Constructions was engaged. The said contractor also deputed S.Raghu for carrying out plumbing work for the first Respondent. Subsequent thereto, during the period, 01.10.2002 to 30.09.2003, M/s.S.K.A. Constructions was engaged as the contractor. Once again, S.Raghu was deputed to attend to plumbing work. On 19.03.2003, the contract was awarded to M/s. Blessing Constructions. The said Blessing Constructions engaged the services of the Appellant. Therefore, the Appellant has provided plumbing services to the first Respondent only from 19.09.2003 and not from 1985 as contended. He also pointed out that the contract period of M/s. Blessing Constructions ended on 30.09.2008. The learned counsel contended that the documents relating to the services that were provided by S.Raghu came to light while collating documents in connection with another case, namely, SLP No.24630 to 24672 of 2007 before the Supreme Court, which related to the regularization of casual labour. Therefore, the said documents had not been produced before the Industrial Tribunal. Consequently, the first Respondent filed M.P. No.1 of 2013 seeking permission of the Court to file additional documents in W.P. No.11684 of 2009.
9. The learned counsel also contended that the TN Permanent Status Act does not apply to Central PSU’s such as the first Respondent. In specific, it is his contention that the TN Permanent Status Act is a State legislation and does not apply to Air India Limited. With regard to the judgment of the Division Bench of this Court in Elayaperumal, he pointed out that it is not necessary for the first Respondent to seek exemption under Section 9 of the TN Permanent Status Act because the said enactment is not applicable to the first Respondent. In the said judgment, the Division Bench of this Court concluded that the expression “industrial establishment” is defined in Section (2)(3) of the TN Permanent Status Act as including an establishment as defined in Clause 6 of Section 2 of the TN Shops and Establishment Act. In that context, the Division Bench concluded that the TN Permanent Status Act would apply to “establishments” as defined in the TN Shops and Establishments Act unless such establishments obtain an exemption under Section 9 of the TN Permanent Status Act. In this case, the first Respondent is not an establishment as defined in Section 2(6) of the TN Shops and Establishment Act. In addition, he contended that the TN Permanent Status Act does not apply to Central PSU’s such as the first Respondent. Therefore, he contended that the said judgment does not apply to this case. With regard to the judgment of the Hon’ble Supreme Court in Umadevi, he contended that the said judgment sets out the general principles with regard to the regularization of employees or workmen in public employment. The principle is that all employees or workmen should be recruited through the prescribed mode of recruitment and that resort to regularization of casual workers, daily wage workers or contract workers should not be resorted to because it violates the principle of equality in matters of employment under the Constitution. Therefore, he contended that the Writ Court correctly relied upon the said judgment. He concluded his submissions by reiterating that the Appellant was not employed from 1985, as contended, and that there is evidence that another plumber, Raghu, was employed for several years until the contract was awarded to Blessing Constructions in 2003.
10 We considered the submissions of the learned counsel for the respective parties and examined the records.
11. At the outset, we propose to deal with the preliminary objection as to whether the reference was maintainable before the Industrial Tribunal. In National Engineering Industries, the Supreme Court held that the Industrial Tribunal is a creature of statute and cannot go behind and question the reference on the ground that it was not proved that the Appellant was a member of the trade union. We respectfully follow the principle laid down therein. Accordingly, this preliminary objection is rejected. On the merits, the principal question that arises for consideration is whether the learned Judge was justified in setting aside the Award of the Industrial Tribunal. For this purpose, it is necessary to consider whether the Industrial Tribunal was justified in directing regularisation notwithstanding the judgment in Umadevi. In our view, the contention of the learned counsel for the Appellant that the judgment in Umadevi does not denude industrial and labour courts of their statutory power under labour legislations is well founded. In this regard, we respectfully concur with and follow the judgment of the Hon’ble Supreme Court in MSRTC.
12. As a consequence of the above conclusion, the factual and legal basis of the Award of the Industrial Tribunal should be examined for purposes of adjudicating this dispute. As stated earlier, the workmen’s union adduced evidence through the Appellant herein and exhibited six documents. These documents were filed to establish that the services of the Appellant were availed of by the first Respondent from the year 1985. For this purpose, the requisition for extension of the validity of the photo pass from 1985 to 1991 was marked as Ex.W1. A similar application for the period 2004 to 2006 was marked as Ex.W2. The entry permit for the period 2003 and 2004 was marked as Ex.W4. The Industrial Tribunal considered the above evidence and that of the management witness, M.W.1. The evidence of the management witness is to the effect that the Appellant was employed by M/s. Blessing Constructions. It is not in dispute that the formal employment order was issued by M/s. Blessing Constructions and that payment was routed to the Appellant through Blessing Constructions. The Industrial Tribunal noted that the management witness admitted that she did not know as to whether any person from Blessing Constructions came to the Airport or not. The Industrial Tribunal also noted that the management witness admitted that she did not know personally the plumbing work done by the Appellant in the premises of the first Respondent. She also admitted that the plumbing work was done by only one plumber although the contract was given to various contractors. On the basis of the aforesaid evidence, the Industrial Tribunal concluded that the contractor was engaged only as an intermediary for the payment of salary, whereas the control and supervision of the employee concerned was with the first Respondent. In addition, it was concluded that the plumbing work was only done by the Appellant herein. Based on such appraisal of evidence, the Industrial Tribunal concluded that this is a fit case for regularization of services of the Appellant. We examined the evidence recorded in this case and the findings of the Industrial Tribunal on the basis of such evidence for the limited purposes of assessing whether a case is made out for interference. In the exercise of supervisory jurisdiction under Article 226, this Court does not, ordinarily, re-appraise evidence and interferes only if there is perversity in the appraisal of evidence, i.e. if the conclusions are not based on any evidence or on the basis of completely irrelevant evidence or if vital evidence was disregarded. In this case, we find that the findings of the Industrial Tribunal are certainly not vitiated by perversity as regards the conclusion that the Appellant’s services had been utilized for a long period and that the contractor was engaged only as an intermediary. Although it is contended by the first Respondent that the services of another plumber named S.Raghu was availed of between 1995 to September 2003, such evidence was not adduced before the Industrial Tribunal. Consequently, such evidence cannot be considered at this juncture.
13. Nevertheless, the legal basis of the Award remains to be considered and, for such purpose, the judgment of this Court in Elayaperumal should be examined closely. In that case, employees of the State Bank of India applied for the conferment of permanent status under Section 3 of the TN Permanent Status Act. Therefore, the Court examined the definition of “industrial establishment” in Section 2(3) of the TN Permanent Status Act. Clause (e) thereof includes an “establishment”, as defined in Section 2(6) of the TN Shops and Establishments Act, within the meaning of the expression “industrial establishment”. On that basis, it was concluded in Elayaperumal that the definition of “establishment” in Section 2(6) of the TN Shops and Establishments Act is incorporated by reference in the TN Permanent Status Act. By proceeding further, the Court found that the definition of “establishment” in Section 2(6) of the TN Shops and Establishments Act includes a “commercial establishment” and that the expression “commercial establishment” is defined in Section 2(3) thereof as including a bank and that, therefore, it would apply to the State Bank of India. Section 2(6) is as under:
“(6) “establishment” means a shop, commercial establishment, restaurant, eating house, residential hotel, theatre or any place of public amusement or entertainment and includes such establishment as the State Government may, by notification, declare to be an establishment for the purpose of this Act.
From the above definition, it is clear that, inter alia, all shops, commercial establishments and establishments notified by the State Government are within the scope of the expression “establishment”. The expression “shop” is defined as under in Section 2(16) of the TN Shops and Establishments Act:
“(16) “shop” means any premises where any trade or business is carried on or where services are rendered to customers and includes offices, store-rooms, godowns and warehouses, whether in the same premises or otherwise, used in connection with such business but does not include a restaurant, eating-house or commercial establishment”.
14. In our view, the premises of the first Respondent would qualify as shops inasmuch as they are, undoubtedly, places where business is carried on and services are rendered to customers. Our conclusion is reinforced by the fact that the above definition includes offices. In Elayaperumal, the question as to whether the TN Permanent Status Act applies to a nationalised bank, such as the State Bank of India, was considered expressly. Section 4(1)(c) of the TN Shops and Establishments Act makes the said enactment inapplicable to establishments under the Central and State Governments. On that basis, the learned single judge therein had concluded that the TN Permanent Status Act did not apply to the State Bank of India, which is a nationalised bank that is majority owned and controlled by the Central Go
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vernment. The Division Bench, however, reversed by holding as under: “17. In the instant case, the definition of establishment is virtually lifted from Shops Act and has been incorporated in the Permanent Status Act. Therefore, the provisions of Cl.(c) of Sub-sec.(1) of S.4 of the Shops Act which exempt the establishments under the Central Government is of no consequence and the Permanent Status Act would continue to apply for such establishments unless and until exemption has been obtained from the State Government under S.9 of the Permanent Status Act. In C.V. Raman v. Bank of India [1998 (2) L.L.N.156] (vide supra), which was referred to by the learned Single Judge, the Court was concerned with the question as to whether the provisions of the Shops Act would be applicable to the nationalised bank in view of exemption granted under S.4(1)(c). Therefore, the above decision has no relevance for the determination of the issue involved in the present case. Consequently, we hold that the provisions of the Permanent Status Act will apply to the banks including nationalised banks.” In effect, in Elayaperumal, the Court concluded that the definition of “establishment” in S.2(6) of the TN Shops and Establishments Act is incorporated by reference in the TN Permanent Status Act but not S.4 of the TN Shops and Establishments Act, which contains the exemption in respect of Central and State Government establishments. We respectfully concur. Air India Limited, the first Respondent herein, is also an entity that is majority owned and controlled by the Central Government. Therefore, the TN Permanent Status Act applies unless an exemption is obtained under Section 9 thereof. The admitted position is that no such exemption was granted. Hence, the Industrial Tribunal was justified in directing regularization. Thus, we conclude that the learned Single Judge was not justified in setting aside the Award of the Tribunal by largely relying upon the judgment in Umadevi. Consequently, the impugned order of the Writ Court is set aside and the Award of the Industrial Tribunal is restored. 15. In the result, we hold as under: (i) The Writ Appeal is allowed by setting aside the impugned order dated 14.10.2019 in W.P. No.11684 of 2009 and consequently restoring the Award dated 10.07.2008 in I.D. No.121 of 2005 of the Industrial Tribunal, Chennai. (ii) The parties shall bear their respective costs and all other miscellaneous petitions, if any, are closed.