@JUDGMENTTAG-ORDER
Manmohan Singh Liberhan, C.J.@mdashThe appellants were sponsored by the Trade Apprenticeship, completed it with the respondents and they passed the examination. In 1983 they were interviewed and absorbed in the post of Artisan Grade IV skilled workers as Non-muster Employees. Later in 1985, they were designated or termed as Casual labourers, the Deputy Chief Inspector of Factories vide his order dated December 22, 1993, held the appellants to be entitled to be declared as permanent employees as envisaged by Tamil Nadu Industrial Establishment (Conferment of Permanent Status of Workmen) Act, 1981, hereinafter referred to as 1981 Act).
2. The employer impugned the order in W.P. No. 1843 of 1994 on the grounds that the order was non-speaking order. It did not consider the sine quo non for conferring the status of permanent employees as the workmen did not work for a continuous period of 480 days during the preceding 24 calender months. As the interrupted periods of employment were wrongly directed to be counted, the long interruption would not come within the purview of authorised interruption.
3. The appellants refuted the averments and averred that questions raised in the writ petition were not raised before the authorities. A workman would be deemed to be in continuous service in terms of Sec. 3(2) of 1981 Act for the purpose of conferring the permanent status during the period of discharge or non-employment in as much as the cessation of work, if any, was not due to the fault of the workman and break in work brought about was an unfair labour practice to prevent the claim of the workman for regularisation. Thus, break in service, if any, cannot be taken note of.
4. The Hon''ble Single Judge, on perusal of the impugned order, documents placed on record and after noticing the sequence of events, the facts and circumstances of the case found, that the impugned order conferring the status of a regular workman in terms of 1981 Act cannot be termed as non-speaking order. During the period between 1983 and 1992 when the claim for conferring the status of regular workman was made they were stopped from work with effect from March 31, 1992. It was observed that unless the relationship of master and servant subsist, any interruption cannot be taken into account. The deeming provisions for continuous service i.e., cessation of work which is not due to any fault on the part of the workman is equivalent to Sec. 25-B of the Industrial Disputes Act. Consequently, as the Hon''ble Supreme Court, while dealing with the concept of non-employment under Sec. 25-B of the I.D. Act observed, it would include retrenchment as well as a person whose service has been terminated or dicharged albeit illegal cannot at all be said to be a person in service, much less in continuous service. The Hon''ble single Judge observed that the concept of continuous service envisages a workman being in employment of 24 calender months; continuous service of 480 days; subsisting contract when it refers to service and non snapping of ties between employer and employee and employee. Thus in view of the observation made above, the Hon''ble single Judge found that as no finding has been given with respect to (i) whether the breaks in service, which are admittely seen in the statement of particulars produced, would amount to cessation of work during employment; (ii) whether the relationship of master and servant continued for the entire period, remanded the case to the authorities for proper consideration and to decide in the light of the observations made.
5. Learned counsel for the appellants contended that on facts and circumstances no issue, as pointed out by the Hon''ble single Judge, arises for determination. It is exuberated in labour jurisprudence; in industrial law and in the Industrial field as understood by the establishments and the workmen that the concept of subsistence of relationship of master and servant while conferring a right of being a regular or permanent workman does not arise especially when the legislature, in its wisdom, does not provide for it rather provides a deeming provisions by defining continuous service. Sec. 3 of the 1981 Act was relied on, which runs thus :
(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 the interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lockout or on account of non-employment or discharge of such workman for a period which does not exceed three months and during which period substitute has been employed in his place by the employer, or a cessation of work which is not due to any fault on the part of the workman.
Reliance was placed on
6. Learned counsel for the respondent contended that though the chart produced with respect to the workers working on the days is not in dispute, yet the only contention raised was master and servant came to an end when the workmen ceased to work as they were casual labourers, consquently the workmen would not be deemed to be in continuous service for 480 days in the preceding 24 calender months as envisaged by the 1981 Act. The workmen had no right for conferment of status of deemed permanent employees.
7. The settled principles emerged from the respondence of the decided case relied on by the learned counsel for the appellants are :-
(1) The perception of continuous service by the deeming definitions of Sec. 25-B of the I.D. Act, Sec. 2(c) of the Payment of Gratuity Act and Sec. 49 of the Factories Act are in pari-materia with the provisions of Sec. 3 of the 1981 Act.
(2) For counting the continuous service, the period of interruption has to be counted as provided by the deeming provisions of the respective Act for conferring the benefits provided by the respective Act.
(3) The non-employment or break in service while in employment must be considered as some act on the part of the employee which has the effect of terminating the contract i.e. if there arises a non-employment for the justifiable termination could be treated as break in service.
(4) Conferment of a permanent status on an employee or a workman is intended to bring about an improvement in the conditions of the labourer/workman thus fulfilling the constitutional mandate of providing justice to poor oppressed class of society apart from meeting the requirements of the interest of the general public to maintain tranquility an peace in the industrial world besides the development of the industry.
(5) The legislations while conferring the permanent status on a workman has taken note of all the malpractices prevalent in the industrial establishments to the effect that the workmen though in employment for long period of time are deprived of the benefits which a permanent workman gets, as they are treated not permanent or are treated as temporary labourers by using the terminology of temporary or casual labourers, depriving the workmen of the monetary benefits which are incidental to the status of a permanent workman. The legislations had attempted to fulfil the mandate of Art. 46 of the Constitution of India and taken a step forward that the same is not frustrated.
(6) It was observed that though the workmen used to be in the service of the employer for a specific period provided by the statute, yet the employer, with an ulterior motive, or with malice and with an intention to deprive the workmen of their monetary benefits practices or uses a particular terminology ''employment'' for escaping from the statutory duty case to them.
(7) Rendering of continuous service, the relationship of master and servant the contract of employment are not synonymous. They are different concepts. It is the nature of employment which is relevant consideration for conferment of permanent status on an employee. Specific reference was made to 1985 II LLJ 252.
(8) The statute has provided statutory period of the deemed period of employment for conferment of the status of permanent employees with an object and intention to cover the malpractices referred to above or where the employer deliberately discharges the workman in order to effect a break in service and again re-employ him as a fresh workman without continuity of service. The conferment of permanent status by operation of law is to undo the malpractices prevalent in the industrial field.
(9) The period of non-employment or the period of discharge cannot be counted for the purpose of giving the benefit of continuity of service unless the workman is reinstated by a process known to law by which the workman automatically gets the continuity of service.
(10) It is only the period provided by the legislature by enacting the deeming provision for counting the days towards the continuous service for which the workman has not actually worked could be counter for the purpose of continuous service.
(11) It was specifically observed in S. B. L. Madras v. Central Govt. S. B. I. Emp. Union while giving meaning to the expression ''Continuous service'' :
"The arguments of Sri Narayanaswami that there should have been a subsisting contract of employment during the entire period of 12 months for calculating 240 working days may have reference to Sec. 25-P(1) but is not supported by the plain phraseology of Sec. 25-P(1) but is not supported by the plain phraseology of Sec. 25-B(2)(a)(ii) of the Act (supra). It appears to us that the thrust of the above provisions is the existence of the relationship of master and servant for the period during which a workman has actually worked during the preceding 12 months from the relevant date and not the existence of a contract of employment during the entire period of 12 months. To hold otherwise would amount to making Secs. 25-B(2)(a)(i) and 25B-(2)(a)(ii) of the Act redundant and defeating the intention of the Legislature. The deeming provisions in Sec. 25-B(2) of the Act by fictionally treating interrupting service under certain circumstances also as continuous service was introduced by the Legislature apparently to mitigate the hardships of a workman who is made to actually serve him for a period of not less than 240 days in the preceding 12 months from the date his services are terminated."
There is no gainsaysing that a workman or a labourer in an industry constitutes a weaker section of the society. He is unable to put his terms for an employment for the reasons of his economic conditions and has to meet the demand of hunger for his employment. Fairness and protection of the workmen/labourers, who constitute the weaker section of the society is the avowed object of our Constitution. The Legislature in order to meet its obligation under Art. 46 of the Constitution and to undo the injustice or atleast to place the weaker sections of society at an equal pedestal provided statutory social welfare legislation conferring the benefit of permanent status on a workman and such legislations can safely be termed as social welfare legislations for protecting the weaker sections of the society.
9. It is well-settled that a social welfare legislation has to be liberally and broadly construed. Though a Judge must not alter the material of which the Act is woven, but he can and should, iron out the creases by construing the statute so that the intention of the Legislature may not be treated in vain or left to operate in air though a word of caution has been that a statute cannot be extended to improve a case for which no provisions have clearly and, undoubtedly been made. Hyper-technical analysis cannot be pushed to the point of defeating justice. Law has to be interpreted to meet different situtations and facts keeping in view that the enactments are not drafted by divine, procedure and with perfect clarity as it is not possible to foresee various controversies and the legislature does not deal with specific controversies and the treacherous human ingenutiy to break the law for greed.
10. There is no gainsaying that when confliciting interest arises or defect appears from the language of the statute, the Court by consideration of the Legislative intent must supplement the written words with force and life in order to satisfy the real protection granted to workmen without giving the hyper-technical or literal construction and by construing the provisions meaningfully. Giving wider meaning and broader concept should be preferred than a narrow tailored meaning, by understanding the spirit and text and not be bound by the letter. All constructions resulting in productive injustice, arbitrariness, undersirable, consequences or leading to a draconian rule should be avoided. It is well-known dictum "Fiat justitia, Ruat Cualwn" i.e. Let right be done, though the heavens fall.
11. Precedently and jurisprudentially it is well established that what is directly or impliedly forbidden by the legislation cannot be allowed to be indirectly achieved. Courts should not permit or allow the acts to be done which cannot be permitted directly by allowing it to be done indirectly by articulating phraseology. Matters have to be judged according to the prevalent situations of which judicial notice can be taken and not as if one is deciding the question in a cool and detached atmosphere of Court room removed in time from situation. A word, as said by Homes, is not crystal transparent and unchanged. It is not crystal transparent and unchanged. It is a skin of living thought and may vary greatly in colour and content according to the circumstances and the time it is used and the context in which it is used.
12. The principles of fairness as imbided in our Constitution is fundamental to the Rule of law. It ensures the Rule of Law is observed and not abused. The authority is used for proper and not for improper purpose. It further ensures that the authority is not misguided by extraneous or irrelevant considerations. "That justice should not only be done but seem to be done" is the essence of the fairness. Rule of fairness has no set form or procedure. It depends on the facts and circumstances, expects a standard of conduct from the exploited to the exploitee. Rule of fairness eliminates the arbitrariness.
13. In K. C. Co-operative Bank Ltd. v. Presiding Officer, Labour Court, Jullander and others, 1984 Lab IC 974 while referring to Sections 25-B and 25-F of the I.D. Act, it was observed that "where the services of the workmen were terminated on their rendering 240 days service with notional breaks, when the work of the workmen was satisfactory and others had been recruited in their place, it was an instance of unfair labour practice". It was further observed that "the inbuilt policy in the, Act for drawing the dividing line at 240 days of service is that if a workman had satisfactorily continued for a period of 240 days of service as envisaged in those provisions, he is as good as having been accepted permanently (though this term does not figure in the Act) in the employment". Now the employer thwarting that process, on no fault of the employee, would be an unfair labour practice and obviously on that ground the termination of service of the a Labour Court to find its justification. Industrial peace is what the country requires and the provisions of the Act are nothing but a measure to further that object. Prevention undoubtedly, is better than cure. An innocent workman at the verge of completing 240 days of service is asked to quit for no fault of his would go with rancour, ill-feeling, frustration and utter disgust, especially when the Management has nothing against him with regard to his work or conduct.
14. In pith and substance by reading Section 3 of the 1981 Act, it emerges that irrespective of anything contained in any other law, a workman in continuous service for a period of 480 days during a period of 24 calender months in an industrial establishment would be conferred the status of permanent employee. For counting the period or continuous service, the period of interrupted service of specified nature mentioned in the deeming definition, should be included in the service. In other words, Section 3 envisages concomitant (sic) for conferring the permanent status on a workman (i) who is in a continuous service for a period of 480 days (ii) within a period of 24 calender months in an industrial establishment, (iii) period interrupted on account of (a) sickness, (b) authorised leave, (c) accident (d) strike, which is not illegal (e) lock-out and (f) cessation of work, which is not due to any fault on the part of the workman, has been, by deeming provision, included in the continuous service, the explanation further deemed continuous service during laid off period under an agreement or as permitted by the Standing Orders or under any other law applicable to the Industrial Establishment or one has been on leave with full wages, earned in the previous year, or has been absent due to temporary disablement caused by accident arising out of and in the course of employment or in the case of a female, she has been on maternity leave.
15. The Hon''ble Supreme Court in S. K. Verma v. The Central Government Industrial Tribunal cum Labour Court, New Delhi 1981 II LLJ 386, while dealing with a badli worker observed that "contract of master and servant is not the same thing as rendering continuous service and the two are not synonymous". There is no gainsaying with regard to the propostion of law laid down by the Hon''ble Supreme Court while considering the case of a badli worker. It is in the context of the nature of the duties which a badli worker performs it was observed that "service rendered by him cannot be treated as continuous service and the contract of employment for conferment of permanent status." The observations have been made in the text and context of the case while interpretations made therein are not attracted by the facts and circumstances of the case in hand either on law laid down or on the facts. Continuous service postulates differently in the context of each statute.
16. The Hon''ble Supreme Court while elaborating the principles of purposive interpretation observed :
"Principles of statutory construction are well settled. Words occuring 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 constructing 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 Wilbertforce''s opinion in Prenn v. Simmonds). In the same opinion Lord Wilbertforce 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 consideration. In one of the cases cited before us, i.e. S. K. 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" statute. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kind of mischief, the Court is not to make inroads by making etymological excursions."
It was further observed that, "Francis Bennion in his Statutory Interpretation, 2nd Edition, has dealt with the Functional Construction Rule in Part (sic) of his book. The nature of purposive construction is dealt with in part XX at page 659 thus :
"A purposive construction of an enactment is one which gives effect to the legislative purpose by :
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this code called a purposive an literal construction) or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." At page, 661 of the same book, the author has considered the topic of purposive construction in contrast with literal construction. The learned author has observed as under :
"Contrast with literal construction". Although the term purposive construction'' is not new, its entry into fashion betokens a swing by the appellate Courts away from literal construction. Lord Diplock said in 1975 : If one looks back to the actual decisions of the (House of Lords) on questions of salutatory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the Purposive construction of statutory provision. The matter was summed up by Lord Diplock in this way :-
"I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act which are not expressly included in it."
It was observed that interpretation of Item I of Schedule IV of the Maharashtra Act as canvassed by the learned counsel for the appellant and the intervenors would frustrate the very scope and ambit of the Act in effectuating the prevention of the alleged unfair labour practice, while on the other hand, if a wider interpretation is placed on the relevant provisions apart from not straining the language which even may become permissible on the rule of purposive construction, the said construction would fructify the very purpose for which the Act was enacted.
17. The Hon''ble Supreme Court relying on the observations of Lord Denning observed in
"When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the construction task of finding the intention of parliament and then he must supplement the written words so as to give ''force and life'' to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they would have straightened it out ? A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
It was further observed :
"We sit here to find out the intention of parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."
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 establishment for a period of 480 day 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 much less in case of an unfair labour practice.
19. As one can see in the admitted facts of the present case that human ingenuity is limitless though it has yet not devised a system by which rights can be protected except through intervention of the Courts of law especially when Indian Courts are not Courts of law alone but also justice. There can be no gainsaying under Scheme of 1981 Act and the public purpose declared for conferment of the permanent status on the workmen, the respondent employer by its ingenuity and articulative words by adhering to unfair labour practice termed the appellants as casual labourers. It would be reasonable to inform in the facts and circumstances of the case that the workmen have satisfied both the quint essential for conferment of permanent status i.e., when one completed a service of 480 days in preceding 24 calender months. To demonstrate the admitted factual aspect, the chart of service with respect to Arokia Arun, Staff No. 27275 is taken from which it emerges that the workman was employed by the respondent as an NMR, in February 1983, giving breaks here and there, he was nomenclatured as casual employee on February 14, 1987 when he rendered a service of 142 days and he rendered a service of 223 days from January 1, 1988 to December 31, 1988. 279 days from January 1, 1989 to December 31, 1989; 234 days from January 1, 1990 to September 28, 1991 and in 1992 he was still in service when on his demand for conferment of permanent status, services were terminated. Similarly is the situation in the case of Loganathan.
20. From the reading of the chart, which is not disputed, it emerges that the respondent, who is none else but State owned institution or in this era discharging the State''s function by diversification management of the State''s affairs, the object of the Corporation cannot be merely production of goods. It being a State institution has a further duty to provide employment and act fairly. The respondent cannot be permitted to dwell in unfair labour practices, which is a glaring case in hand especially when the workmen though named as service especially when the office order issued in 1987 was to the effect that the workman was employed at Rs. 17/- per day to maintain the service department with effect from November 21, 1987 on purely temporary basis while they were simply relieved of their duties with effect from July 23, 1988 and to ritually observe the statutory period of break in service required for depriving the workmen from conferment of permanent status for a cooling period of three months was given and re-employed almost in pari-materia language in which he was employed at the first instance. We may hasten to add the methodology adopted by the respondent depriving the workmen of conferment of status the, 1981 Act by bringing about the interruption on of service while there was still workforce required to continue the work uninterruptedly as has been demonstrated by the events of keeping the workmen in employment for 480 days in preceding 24 calender months. If it is not an unfair labour practice it is difficult to assume what more can be the unfair labour practice. From the facts and circumstances referred to above the evincing intention of the respondent is categorical and a crude attempt to deprive the workmen of the benefits which the statute has specifically conferred on them.
21. In our considered view, the contention of to be subsistence of relationship of master and servant during the period of 24 calender months preceding which days has to be calculated would be reading the words in the sections which the legislature has either expressly or impliedly omitted. Reading to hold that there has to be relationship of master and servant during the entire period of 24 calender months would render apart from the very provisions of the statute but would render the very object of the Act to be nugatory or otiose also. It would frustrate the legislature''s attempt in protecting the workmen. The criteria prescribed for conferment of permanent status, in pith and substance, by the statute, is to the effect that the workmen should have actually physically including the period in which he is deemed to be in actual work of 480 days to be accounted, in the preceding 24 calendar months on the date on which it is stopped.
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.
25. As observed in the earlier part of our Judgment that breaks in service, if any, brought out in the chart of the days the appellants have worked, it can be reasonably inferred that the respondent has resorted to unfair labour practice and the discharge of the appellants for cease of relationship of master and servant even if assumed to be quint-essential suffers from the vires of malice apart from being in violation of the State''s policy, if I may say so it would be void order. The workman would be deemed to be in service when the cessation of work has been brought about by the employer for extraneous consideration, as in the case in hand.
26. In view of the observations made above, what is required to be determined by the authorities is not the question what Hon''ble single Judge with respect posed but the following questions :
(i) Whether the appellants have worked for 480 days in preceding 24 calender months :
(ii) Whether the interrupted period of service, if any or cessation of work if any, about is an unfair labour practice. Keeping in view the observations made in the earlier part of the Judgement, if the answer is in affirmative, the worker would be entitled to the conferment of the status of permanent employee with effect from the date of termination of service with all other consequential reliefs following from such a declaration. The second respondent is directed to determine the above referred questions within three months, from the date of receipt of a copy of this Judgment, after affording an opportunity of being heard to both the parties.
27. In the light of the above modification in the order of the learned single Judge, the writ appeals are disposed of with no order as to costs.
28. Since the points raised in W.P. Nos. 1834 of 1994, 1999 of 1984 and 3351 of 1992 are common and are in pari-materia on facts, all the three petitions are disposed of by this common Judgment.
