The Managing Director Vs A.M. Abdul Rahim

N. Paul Vasanthakumar, J.@mdashThe writ appeal is filed against the order dated 26.3.2012 made in W.P. No.32486 of 2006, wherein the first respondent has prayed for issuing a writ of Mandamus directing the appellant as well as the second respondent herein to confirm the first respondent in service with effect from 25.1.1981 with appropriate scale of pay and to pay the arrears of salary and other attendant benefits. The learned Single Judge having allowed the writ petition, the Managing Director, Tamil Nadu Fisheries Development Corporation Limited has filed this writ appeal.

2. The facts leading to the filing of the writ petition by the first respondent are as under:

(a) The first respondent joined in the service of the appellant on 25.1.1981 and he was directed to work as a Cook in the fish stalls of the appellant. The duty of the first respondent was to get fishes from the storage; cut them into pieces; fry them; sell them and remit the sale proceeds in the office of the appellant.

(b) According to the first respondent, he worked continuously in various fish stalls owned by the appellant. He was allowed to stay in the fish stall during night time. The first respondent was initially paid a sum of Rs. 10/- per day, which was increased to Rs. 12/- per day and subsequently to Rs. 15/- per day. In the year 1994, the first respondent was transferred to Pollachi, where he was permitted to work as Watchman for 24 hours and he worked as Watchman till the year 2005. Again the first respondent was transferred to Chennai and was directed to work as Cook and since then, he has been working as Cook and he was paid monthly wage at the rate of Rs. 112/- per day.

(c) It is the case of the first respondent that the appellant sent a recommendation to the second respondent herein for absorption of a list of candidates, who were daily paid employees, and the Government also granted approval on 20.10.1981. In the said list, the name of the first respondent was also included. However, the service of the first respondent was not regularised from the year 1981 and he was made permanent only on 19.7.2007. Hence, the first respondent filed the writ petition with the above said prayer.

3. Mr.K.R. Tamizhmani, learned counsel appearing for the appellant submitted that the list sent for ratification, which was approved by the Government vide G.O. Ms.No.1234, Forest and Fisheries Department, dated 20.10.1981, relates to daily wage employees, who were engaged without reference to the employment exchange and that has nothing to do with the absorption of the first respondent on permanent basis and, therefore, the learned Single Judge was not right in ordering regularization of the service of the first respondent from the date of his appointment, namely, 25.1.1981.

4. The learned counsel appearing for the appellant is justified in his submission that G.O. Ms.No.1234 Forest and Fisheries Department, dated 20.10.1981 was issued to ratify the appointment of the appellant as daily wage employee along with others without reference to Employment Exchange and the said Government Order is not for granting regularisation from the date of initial appointment. However, whether the first respondent is entitled to get regularisation/permanency under any other enactment is a legal issue. This Court sitting under Article 226 of the Constitution of India is not only concerned with answering the prayer projected in the writ petition, but also can go into the other legal rights, if any available to the writ petitioner to meet the ends of justice. The Hon''ble Supreme Court in the decision reported in Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., held that the primary concern of the Court is to do substantial justice.

5. It is also a well settled principle of law that when technicalities in law and justice are pitted against each other, technicalities will give way to render justice and in appropriate cases the Court are empowered to mould the relief to do substantial justice. In the decision reported in Secretary, Cannanore District Muslim Educational Association, Kanpur Vs. State of Kerala and Others, following the earlier decisions, the Hon''ble Supreme Court held that Article 226 confers wide power to the High Court to remove injustice, wherever it is found.

6. The Honourable Supreme Court, considered the issue of moulding the relief by exercise of equity jurisdiction in the decision reported in K. Madhava Reddy and Others Vs. Govt. of A.P. and Others, . In the said case having regard to the setting aside of the Rule providing interdepartmental transfer by promotion noticing the plight of the persons already promoted based on the Rule, who faced reversion directed the State of Andhra Pradesh to get instruction as to whether the State was ready to create supernumerary posts to accommodate the persons, who were facing reversion after rendering service in the promoted post of Assistant Labour Officers, subsequently promoted as Assistant Labour Commissioner or Deputy Labour Commissioners. The Government of Andhra Pradesh having refused to accept the suggestion, the Court ordered thus,

"22. Suffice it to say that the respondent-State has not expressed its willingness to create supernumerary positions. We have, therefore, no option but to examine the question of invoking the doctrine of prospective overruling on the merits of the case having regard to the facts and circumstances in which the question arises. While doing so we must at the threshold point out that the respondents are not correct in suggesting as though the petitioners had taken any deliberate or calculated risk by opting for promotion outside their cadres. The respondents have while making that assertion ignored the fact that promotions were ordered by the State and not snatched by the petitioners. That apart on the date the promotions were made there was no element of risk nor were the promotions made subject to the determination of any legal controversy as to the entitlement of the incumbents to such promotion. Not only that, the incumbents who had been sent out on promotion as Assistant Labour Officers had subsequently been promoted as Assistant Labour Commissioners or Deputy Labour Commissioners. Such being the position reverting these officers at this distant point of time, to the posts of Senior Stenographers in their parent cadre does not appear to us to be either just, fair or equitable especially when upon reversion the State does not propose to promote them to the higher positions within their zone/cadre because such higher posts are occupied by other officers, most if not all of whom are junior to the petitioners and who may have to be reverted to make room for the petitioners to hold those higher posts. Reversion of the petitioners to their parent cadre is therefore bound to have a cascading effect, prejudicing even those who are not parties before us."

(Emphasis Supplied)

The said judgment was rendered on the basis of the jurisdiction vested with the Honourable Supreme Court under Articles 136, 141 and 142 of the Constitution of India. The Hon''ble Supreme Court in the decision reported in Rajesh Kumar and Others etc. Vs. State of Bihar and Others etc., held thus,

16. ...The power of the court to mould the relief, according to the demands of the situation, was never the subject-matter of dispute in those cases. That power is well recognised and is available to a writ court to do complete justice between the parties....

The Full Bench decision of the Orissa High Court in AIR 1992 Orissa 261 (Krishna Chandra Pallai v. Union of India) held that the High Court being the Court of plenary jurisdiction, has inherent power to do complete justice between the parties, and the said decision was approved by the Hon''ble Supreme Court in the decision reported in B.C. Chaturvedi Vs. Union of India and others, .

7. Bearing the said principles in mind, this Court put a question to the learned counsel for the appellant as to whether the first respondent is entitled to get permanency in terms of the benevolent enactment viz., Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (for brevity, the Act) and this Court was willing to give time to the learned counsel to go through the above enactment and find out whether permanency can be ordered in terms of Section 3 of the said Act. The learned counsel for the appellant fairly submitted that he is aware of the said beneficial legislation and the first respondent, even though is eligible to claim permanency under the said Act, neither pleading was made in the writ petition nor argument was advanced. As already observed, this Court can go into the legal issues even if there is no pleading and if the facts are otherwise not in dispute.

8. The learned counsel further submitted that the first respondent has not approached the Inspector of Labour seeking permanency in terms of section 3 of the Act. Section 3 of the Act nowhere contemplates the workmen to approach the Inspector of Labour seeking permanency and a statutory duty is cast upon the establishment, coming within the meaning of "industrial establishment" under the Act, to grant permanency if a workman satisfies the requirement of continuous service of 480 days in 24 calendar months. No discretion is vested with the employer to deny the said benefit. The said issue as to whether demand has to be made by the workman seeking permanency was already considered by the Division Bench of this Court in the decision reported in R. Lakshmi Vs. Chief Engineer (Personnel), Tamilnadu Electricity Board, Chennai and Another, . In the said case the workman of the TNEB during his lifetime had not approached the Inspector of Labour for conferment of permanency and after serving for several years he passed away. His wife claimed compassionate appointment due to the death of her husband and the said request was rejected by the TNEB contending that the service of the husband of the petitioner therein was not regularised and therefore compassionate appointment cannot be granted. The Division Bench repelled the said contention and held that the workman need not approach the Inspector of Labour seeking conferment of permanency and as per Section 3, on completion of 480 days of continuous service in a period of two years, the workman covered under the said enactment will automatically get permanent status and ordered to give compassionate appointment to the widow of the deceased TNEB employee. In R.Lakshmi case, referred supra, in paragraphs 35 and 36, the Division Bench held as under:

35. The words ''employed'' in Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, are not directory in nature, in our considered opinion. Per contra, they are mandatory in character. In short, the deeming clause of Section 3(1) of the Act as aforesaid is explicit and admits of no exception as opined by this Court. Furthermore, the Petitioner''s husband late Raju satisfied the essential condition of, being a worker and the Tamil nadu Electricity Board being his master, so as to claim the permanent status. Thus, the logical conclusion that can be deduced in the present case is that even if no order of regularization was passed in respect of the petitioner''s husband Raju (since deceased), the statutory benefit of permanent status is to be necessarily granted to him by the Respondent/Tamil nadu Electricity Board.

36. We also hold that even in the absence of any enquiry conducted by the Inspector under the Act, the right conferred upon the Petitioner s husband to claim the benefit of permanent status could not be denied by any means because of the simple fact that Section 3(1) of the Act imposes an obligation upon the Respondents/Electricity Board Authorities to confer permanent status of the Petitioner s husband, who had rendered 480 days of work continuously in a period of 24 calender months and on that basis, we hold that the Petitioner s husband deceased S. Raju is entitled to be made permanent by the Respondents / Tamil nadu Electricity Board Authorities and once, in law, he was entitled to the benefit of conferment of permanent status, the resultant benefit could not be deprived to the Petitioner (wife) notwithstanding the fact that during his lifetime no such permanency was conferred on him. Viewed in that perspective, we hold that a workman, who had completed 480 days of continuous service in a period of 24 calender months, would become automatically a permanent employee under the employer, even if, an employer had not conferred him with the permanent status or even if, no direction was issued by the competent authority in this regard under the Act, 1981 or the Rules framed thereunder. Accordingly, we answer the Reference.

The said Division Bench judgment is answer to the submission made by the learned counsel appearing for the appellant herein. Applicability of the said act having not been disputed to the appellant, we are inclined to consider whether the first respondent is entitled to seek for permanency under the said Act.

9. The Tamil Nadu Fisheries Department Corporation Limited is coming within the meaning of industrial establishment, as defined under Section 2(3) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (for brevity, the Act) and the first respondent is a workman falling within the definition of workman, as defined under Section 2(4) of the Act.

10. Section 3(1) of the Act mandates that 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. Thus, it is evident that the first respondent, who was appointed as a daily paid workman on 25.1.1981 and worked without any break in service, is entitled to get permanency on completion of continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months. The four hundred and eight days has to be calculated from 25.1.1981. If there is any interruption of service on account of sickness or unauthorised 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, those days should be counted while calculating continuous service as per Section 3(2) of the Act. Therefore, the first respondent is entitled to get permanent status with time scale of pay in terms of Section 3(1) of the Act.

11. The learned Single Judge may not be justified in ordering regularization of the service of the first respondent from 25.1.1981. However, the relief can be moulded by giving direction to the appellant to give permanent status to the first respondent on his completion of continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months from 25.1.1981.

12. The learned counsel for the appellant submitted that the first respondent retired from service on 30.4.2014, on attaining the age of superannuation and pursuant to the interim order passed by this Court on 15.7.2014 in M.P. No.1 of 2014, the appellant paid a sum of Rs. 3,28,144/- (being the gratuity and leave salary amount) to the first respondent on 25.7.2014.

13. In such view of the matter, the appellant is directed to confer permanent status to the first respondent on his completion of continuous service for a period of four hundred and eighty days in twenty-four calendar months from 25.1.1981 and pay him the arrears of pay upto 30.4.2014, after adjusting the sum of Rs. 3,28,144/- already paid. The appellant is directed to complete the said exercise within a period of eight weeks from the date of receipt of a copy of this judgment.

This appeal is disposed of accordingly. No costs. Consequently, M.P. No.1 of 2012 is closed.