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TMI Blog2024 (6) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... t March, 2001 of the Inspector of Labour, Circle-III, Chennai Hereinafter 'Inspector of Labour', by which the claim of 53 workmen to be conferred permanent status in the Corporation was accepted, while the claim of 42 others was rejected. 4. W.P. No.15241 of 2009 was filed by 22 out of the said 53 workmen seeking a writ of mandamus to be granted employment in the Corporation as per the order of the Inspector of Labour. QUESTIONS BEFORE THIS COURT 5. The questions that this Court is to consider are - (i) Whether the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 would apply to the parties? (ii) Whether by way of the impugned judgment, the suggestion to institute an 'Industrial Disputes Claim' questioning non-employment was sustainable, given that the Inspector of Labour had already passed orders in that regard? FACTS IN BRIEF 6. The Corporation was incorporated under the Indian Companies Act, 1956 on 1st July, 1994. Its management is under the State of Tamil Nadu. It has employed various workmen in different capacities, including the appellants in the appeal arising out of SLP(C)No.2649 of 2020. Such employees had sought regular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, eventually came to be passed. An appeal assailing the order dated 21st July, 2000 and, an independent writ petition was filed against the order dated 31st March, 2001 of the Inspector of Labour, and Division Bench vide order dated 10th December 2009 page 205 of paper book in such proceedings, confirmed both these orders and the Corporation was directed to provide employment to the Respondents, such as those who were before the Court as petitioners (original writ petitioners) in those proceedings. Against such confirmation of the order of the Inspector of Labour, Civil Appeal Nos. 6567 and 6568 of 2012 were preferred. 11. Hence, this Court on 29th March 2010 while issuing notice, stayed the operation of the impugned judgment. Subsequently, on 10th March, 2016, while allowing the appeal, this Court remanded the matter to the High Court, thus- "3. It has been submitted that while deciding the writ petitions and the connected matters, the High Court did not consider the fact whether the aforesaid Act is applicable to the members of the respondent-Union and the said submission appears to be correct. 4. In the afore-stated circumstances, the impugned judgment is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant that the Act as also the Tamil Nadu Shops and Establishments Act, 1947 Hereinafter 1947 Act would not be applicable to the appellant. However, the same was not considered by the High Court. The only manner in which the said Act could be applicable was that the Corporation would fall under the definition of 'commercial establishment' under Section 2(3) of the 1947 Act. b) That the impugned judgment did not analyze whether any of the activities of the Corporation fell under Section 2(3) of the 1947 Act. Section 7 of the Act exempts such of those industrial establishments, that are engaged in construction activities and since some of the activities of the Corporation, include construction, the Corporation would be exempt. c) That most of the 53 employees who are appellants in Appeal arising out of SLP(C)No.2649 of 2020, who were directed to be given permanent status by the Inspector of Labour, have obtained other profitable employment and the Corporation cannot be forced to grant permanent status. 15. The respondent-Union has submitted - (a) That the Corporation is attempting to distinguish the status of the respondents by applying the ratio of State of Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and includes a badli workman, but does not include any such person,- (a) who is employed in the police service or as an officer or, other employee of a prison; or (b) who is employed mainly in a managerial or administrative capacity; or (c) who, being employed in a supervisory capacity, [draws wages exceeding three thousand and five hundred rupees per mensem] or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. X x x x 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 [xxx], or a cessation of work which is not due to any fault on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, broker's office or exchange and includes such other establishments as the State Government may by notification declare to be a commercial establishment for the purposes of this Act." 20. The affidavit dated 16th September, 2009 filed by the Corporation before the High Court records that the actual turnover for the year 2007-2008 is Rs.27.5 crores, vis-à-vis, the value of drugs distributed being at Rs.186.60 crores. The order of the Inspector of Labour records as under - "Further the respondent advanced the arguments that the Tamil Nadu Medical Services Corporation is not functioning with any profit motive, that quality argues are being obtained from quality manufacturing and supplied the same to the consumers without obtaining any service charges and therefore, the respondent's establishment is not attending to any commercial duty and while perusing all the aforesaid factors and also the audited balance sheets of the respondents filed on behalf of the petitioner i.e. for the years 1994-95, 1995- 96 and 1996-97 it is seen that for the year 1994-95 the profit to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - fittings including, hospital furniture and also to undertake civil and other general maintenance of hospitals. (v) To establish research and development centres and institutes for medical and para-medical personnel for imparting training in various Techno- Managerial fields." (Emphasis supplied) 38. It is also seen that TNMSC Management has warehouses in channel and in all. The District Headquarters. These warehouses are used for storing of medicines and drugs. It has been specifically held as a fact by the Inspector of Labour in the order dated 31.03.2001, that TNMSC Management had earned profit of Rs.6.95 lakhs in the year 1994-95, Rs.8.44 lakhs in the year 1995-96 mnd As.1.84 lakhs in the year 1996-97. Consequently, any contention raised that it is run on a "no profit basis" has to rejected." 23. It was argued that the Corporation's activities included construction and therefore it would be exempt from the application of the Act. Section 7 reads thus- "7. Act not to apply to workmen employed in certain industrial establishment. - Nothing contained in this Act shall apply to workmen employed in an industrial establishment engaged in the construction of building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployee having uninterruptedly continued in service for 480 days or more for 24 months, having been met we have no hesitation in holding that the Act would apply to the parties to the present dispute. 28. The next question to be considered is whether the High Court on remand, could have ignored the order of the Inspector of Labour and suggested that the employees raise an industrial dispute questioning their non-employment. The reason for remand, as is seen from the judgment dated 10th March, 2016, was that the High Court had not considered that the Act would be applicable to the parties, which were the very same as the parties before us. In other words, the scope of remand was limited. The order of the Inspector of Labour was passed under the Act. Since the High Court concluded that the Act would apply, there was no reason for it to disturb the finding of the Inspector of Labour and, therefore, it ought to have simply ordered that the order of Inspector of Labour which concluded that the members of the respondent-Union be given permanent employment, be complied with. When an issue stands already decided and such decision does not suffer from any vice of authority or jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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