Friday, October 25, 2013
MINISTRY OF LABOUR AND EMPLOYMENT NOTIFICATION New Delhi, the 11th September, 2012 *S.O. 2260(E).— In exercise of the powers conferred by sub-section (6) of Section 1 of Payment of Wages Act, 1936 (4 of 1936), the Central Government, on the basis of figures of the Consumer Expenditure Survey published by the National Sample Survey Organisation, hereby specifies Rupees eighteen thousand per month as the wages under said sub-section (6). [ F.No. S-31018/3/2007-WC] T.K. BASU, Dy. Director General ----------------------------------- *Published in the Gazette of India (extraordinary) Part-II, Section 3, Sub section (ii), vide No. S.O. 2260(E), dated 11th/20th September, 2012.
Monday, October 7, 2013
NO APPEAL AGAINST ORDER OF CONTROLLING AUTHORITY ON CONDONATION OF DELAY UNDER PAYMENT OF GRATUITY ACT,1972
Kerala High Court Indian Kanoon - http://indiankanoon.org/doc/1753195/ Kerala High Court Malabar Spinning And Weaving Mill vs Narayanan Nair on 27 October, 1988 Equivalent citations: 1989 (58) FLR 434, (1994) IIILLJ 323 Ker Author: Paripoornan Bench: Paripoornan JUDGMENT Paripoornan, J. 1. A common question is posed for consideration in both these Original Petitions. The petitioner is the same in both the cases. It is a Government of Kerala company incorporated under the Companies Act. The first respondent, in both these O.Ps. filed an applications before the second respondent, under the Payment of Gratuity Act, for payment of balance amounts due. The petitioner management contested the claim. Amongst others, it was contended that the second respondent has no jurisdiction to entertain the applications in question and that no sufficient cause was shown by the first respondent to condone the delay in filing the applications. By Ext. P-3, in both the cases, the second respondent-Controlling Authority under the Payment of Gratuity Act found that it has got jurisdiction to hear the applications. It also held that there was sufficient and reasonable cause for condoning the delay in filing the applications. The matter was posted for further evidence. The petitioner filed appeals before the third respondent-Appellate Authority under the Payment of Gratuity Act, and assailed Ext. P-3 order. The third respondent, by Ext. P-5 order in both the cases, dated 25-6-1988, held that the appeal filed against the preliminary order of the Controlling Authority is not maintainable. It was further held that an appeal will lie only against the final order of the Controlling Authority and since the Controlling Authority has not passed its final order, the appeals filed before it are incompetent. The appeals were dismissed in limine. In these Original petitions, the challenge is against Exts. P-5 and P-5 orders. 2. I heard counsel for the petitioner. The only point pressed, at the time of hearing, was that the third respondent erred in holding that the appeals filed before it are unsustainable or incompetent. It was argued that Section 7(7) of the Payment of Gratuity Act was misunderstood in holding that the appeals are incompetent. 3. Section 7(4) and Section 7(7) of the Payment of Gratuity Act, 1972 are relevant for deciding the point in controversy. The said sections provide as follows: "7(4)(a) : If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. (b) Where there is a dispute with regard to any matter or matters specified in Clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling" authority for deciding the dispute. (c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer. (d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto. (e) As soon as may be after a deposit is made under Clause (a) the controlling authority shall pay the amount of the deposit- (i) to the applicant where he is the employee; or (ii) where the applicant is not the employee, to the nominee or as the case may be, the guardian of such nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity. (7) Any person aggrieved by an order under Sub-section (4), may, within sixty days from the date of receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf: Provided that the appropriate Government or the appellate authority, as the case may be, may if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period of sixty days: Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under Sub-section (4), or deposits with the appellate authority such amount". 4. The third respondent-Appellate Authority held that Section 7(4)(c) of the Act provides that the controlling authority shall determine the matter or matters in dispute as specified in Sub-section (a) and if as a result of such enquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount. That is the only order contemplated under Sub-section (4) of Section 7. It can only be a final order and not an order deciding a preliminary issue. It was observed that the second proviso to Section 7(7) provides that no appeal by an employer shall be admitted unless at the time of preferring the appeal the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under Sub-section (4), or deposits with the appellate authority such amount. Such a deposit will arise only when a final order is passed under Section 7(4)(c) of the Act. 5. I am of the view that the third respondent was justified in holding that under Section 7(7) of the Act an appeal will lie only against the final order of the controlling authority. As stated by the third respondent, Section 7(4)(a) read with Section 7(4)(c) and the second proviso to Section 7(7) of the Act are pointers to show that an appeal is contemplated under Section 7(7) of the Act only against the final order of the controlling authority. 6. The petitioners' counsel contended that Ext. P-3 order, in both the cases, holding that the second respondent has jurisdiction to hear the applications is final, in that a decision regarding a fundamental matter affecting the jurisdiction of the Tribunal has been finally decided by the second respondent and so Ext. P-3 order, in both the cases, is a final order. I am unable to accept the said plea. All that was done by the second respondent was to hold that the petition is maintainable. The maintainability of the petition was raised as a preliminary issue. The said issue was decided against the petitioner. By holding that the petition is maintainable, the further adjudication is to continue and there is no final order adjudicating the rights and liabilities of the parties to the proceeding. The rights and liabilities of the parties are yet to be decided in the adjudication to be made. If, on the other hand, the second respondent had decided the preliminary issue in favour of the petitioner and held that the petition is unsustainable, thereby dismissing it, it would have been a final order, in that the petition would have been finally decided or closed. The observations of the Supreme Court in Bant Singh v. Shanti Devi AIR 1967 SC 1360 at page 1362, para 3, are apposite in this context. They are as follows: "....The principle was thus recognised that the word "order" used in such context is not wise enough to include every order, whatever be its nature, and particularly orders which only dispose of interlocutory matters. In the case before us also all that was done by the application presented by the appellant on the 13th March, 1961, was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of Section 50(2) of the Act of 1958. The Court went into that issue and decided it against the appellant. If the decision had been in favour of the appellant and the suit had been dismissed, no doubt there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ram Charan Das v. Hira Nand, AIR 1945 Lah. 298 (FB). On the other hand if as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the rights or liabilities of the parties to the suit. The rights and liabilities have yet to be decided after full trial has been gone through. The decision by the court is only in the nature of a finding on a preliminary issue on which would depend the maintainability of the suit. Such a finding cannot be held to be an order for purposes of Section 34 of the Act of 1952, and consequently no appeal against such an order would be maintainable. It was indicated by this Court in the case of the Central Bank of India Ltd., Civil Appeal No. 1339 of 1966 dated 12-9-1966 reported in AIR 1967 SC, 799 (supra) that, in such a case, it is open to the appellant to canvass the error, defect, or irregularity, if any, in the order in an appeal from the final order passed in the proceedings for eviction. In the present case also, therefore, it is clearly open to the appellant to raise this plea of abatement of the suit, if and when he files an appeal against a decree for eviction passed by the trial Court". 7. In the light of the above weighty observation of the Supreme Court and in view of Section 7(4)(a) read with Section 7(4)(c) and the second proviso to Section 7(7) of the Act, I hold that the appeals tiled by the petitioner before the third respondent were rightly held to be unsustainable in Ext. P-5 order in both the cases. No interference is called for with Ext. P-5. 8. No other point was argued, at the time of hearing of the Original Petitions. The O.Ps. are without merit. They are dismissed, in limine.
Thursday, August 8, 2013
PG ACT- ON CONTINUITY OF SERVICE-ON ADVERSE INFERENCE FOR NON PRODUCTION OF DOCUMENT,ONUS OF PROOF OF CONTINUOUS SERVICE- ELIGIBILITY OF CASUAL SERVICE FOR GRATUITY-DELAY NO MATTER IN GRATUITY
Madras High Court M.Vairamuthu vs Regional Labour Commissioner/ on 21 October, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/10/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.10377 of 2007 W.P.(MD)NO.1343 to 1346 of 2008 W.P.(MD)NO.2851 of 2008 W.P.(MD)NO.5084 to 5093 of 2008 W.P.(MD)NO.5426 of 2008 W.P.(MD)NO.9151 to 9153 of 2008 W.P.(MD)NO.12175 to 12177 of 2008 and W.P.(MD)NO.11358 to 11360 of 2008 and W.P.(MD)NO.46 to 48 of 2009 and M.P.(MD)NOS.1,1,1,1,1,1,1,1,1,1,1,1,1,1,1,2,2,2,2,2,2,2,2,2,2, 1,2,1,1,1,1,1,1,1,1,1,2,2 and 2 of 2008 and 1,1,1 of 2009 W.P.(MD)No.10377 of 2007 1.M.Vairamuthu 2.V.Ponnaiah 3.N.Harikrishnan .. Petitioners vs 1.Regional Labour Commissioner/ (Authority under Payment of Gratuity Act), No.22, Haddows Road, Shastri Bhavan, Chennai-6. 2.The Head, Indian Rare Earths Ltd., Manavalakurichy Plant, Manavalakurichy Post, Kanyakumari District-629 252. .. Respondents W.P.(MD)Nos.1343 to 1346, 12175 to 12177, 11358 to 11360 of 2008 and 46 to 48 of 2009 M/s.Indian Rare Earths Ltd., rep. By its Head S.Narayanankutty Manavalakurichi, Kanyakumari District-629 252. .. Petitioner in all writ petitions Vs 1.Regional Labour Commissioner (Central) (Appellate Authority), Under Payment of Gratuity Act, No.26, Haddows Road, Sastri Bhavan, Chennai-600 008. .. 1st respondent in all writ petitions 2.M.Ramaiah .. 2nd Respondent in WP(MD)No.1343 of 2008 J.Subbiah .. 2nd respondent in W.P.(MD)No.1344 of 2008 P.Pauliah .. 2nd respondent in W.P.(MD)No.1345 of 2008 V.Ramaiah .. 2nd respondent in W.P.(MD)No.1346 of 2008 D.Nesam .. 2nd respondent in W.P.(MD)No.12175 of 2008 P.Chellam .. 2nd respondent in W.P.(MD)No.12176 of 2008 S.Velappan .. 2nd respondent in W.P.(MD)No.12177 of 2008 T.Damodharan .. 2nd respondent in W.P.(MD)No.11358 of 2008 M.Muthian .. 2nd respondent in W.P.(MD)No.11359 of 2008 S.Dhasan .. 2nd respondent in W.P.(MD)No.11360 of 2008 S.Chellam .. 2nd respondent in W.P.(MD)No.46 of 2009 M.Varuvel .. 2nd respondent in W.P.(MD)No.47 of 2009 A.Paul Thangam .. 2nd respondent in W.P.(MD)No.48 of 2009 W.P.(MD)Nos.2851, 5084 to 5093, 5426, 9151 to 9153 of 2008 M/s.Indian Rare Earths Ltd., rep. By its Head, Manavalakurichi, Kanyakumari District-629 252. .. Petitioner in all writ petitions Vs 1.Assistant Labour Commissioner (Central), (Controlling Authority Under Payment of Gratuity Act), Lady Doak College Road, Chinnachokkikulam, Madurai-625 002. .. 1st respondent in all petitions 2.S.Muthuswamy .. 2nd Respondent in W.P.(MD)No.2851 of 2008 S.Chellappan .. 2nd respondent in W.P.(MD)No.5084 of 2008 P.Kasinadan .. 2nd respondent in W.P.(MD)No.5085 of 2008 S.Alankaram .. 2nd respondent in W.P.(MD)No.5086 of 2008 N.Kunjukrishna Pillai .. 2nd respondent in W.P.(MD)No.5087 of 2008 T.Bootham Pillai .. 2nd respondent in W.P.(MD)No.5088 of 2008 S.Padmanabha Pillai .. 2nd respondent in W.P.(MD)No.5089 of 2008 A.Leenammal .. 2nd respondent in W.P.(MD)No.5090 of 2008 L.Thankappan .. 2nd respondent in W.P.(MD)No.5091 of 2008 E.Subbian .. 2nd respondent in W.P.(MD)No.5092 of 2008 S.Pachammal .. 2nd respondent in W.P.(MD)No.5093 of 2008 P.Ayyapazham .. 2nd respondent in W.P.(MD)No.5426 of 2008 Mrs.Maria Sammanasu .. 2nd respondent in W.P.(MD)No.9151 of 2008 Ms.B.Sreekala .. 2nd respondent in W.P.(MD)No.9152 of 2008 Chenbagaraman .. 2nd respondent in W.P.(MD)No.9153 of 2008 W.P.(MD)No.10377 of 2007 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records in G.A.Nos.18 to 20/2005 common order dated 23.9.2005 passed by the first respondent and to quash the same in respect of the petitioners alone and consequently to direct the second respondent management to implement the orders dated 31.12.2004 passed by the Controlling Authority under the Payment of the Gratuity Act 1972 and Assistant Labour Commissioner (Central), Madurai in P.G.Nos.173/2004, 174/2004 and 175/2004 along with 12% interest from the date of retirement of petitioners. W.P.(MD)Nos.1343 to 1346, 12175 to 12177, 11358 to 11360 of 2008, 46 to 48 of 2009 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records connected with the order dated 28.12.2007 made in Gratuity Appeal Nos.276 and 277 of 2007, order dated 31.12.2007 in GA No.279 of 2007, order dated 28.12.2007 in GA No.275 of 2007 orders dated 28.11.2008 in GA Nos.4,3 and 8 of 2008, orders dated 18.11.2008 in G.A.Nos.5,1 and 6 of 2008, orders dated 12.12.2008 in G.A.Nos.85, 84 and 83 of 2008 passed by the first respondent respectively and to quash the same. W.P.(MD)Nos.2851, 5084 to 5093, 5426, 9151 to 9153 of 2008 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records connected with order in Gratuity Application No.111 of 2006, dated 21.1.2008, G.A.Nos.41 of 2006, dated 18.03.2008, G.A.Nos.27, 85 of 2006, dated 30.04.2008, GA.No.53 of 2006, dated 03.03.2008, G.A.No.89 of 2006, dated 30.04.2008, G.A.No.25 of 2006, dated 03.03.2008, G.A.No.30 of 2006, dated 18.03.2008, G.A.No.74 of 2006, dated 30.04.2008, G.A.No.58 of 2006, dated 30.04.2008 and G.A.No.16 of 2006, dated 03.03.2008, G.A.No.114 of 2006, dated 26.5.2008, G.A.No.12 of 2006, dated 25.08.2008, G.A.Nos.13 and 51 of 2006, dated 31.7.2008 respectively on the file of the first respondent and to quash the same. !For Petitioners ... Mr.T.Murugan in W.P.(MD)No.10377 of 2007 Mr.Sanjay Mohan for M/s.S.Ramasubramaniam Associates in other writ petitions ^For Respondents ... Mr.S.Meenakshi Sundaram (for official respondents) Mr.Sanjay Mohan for M/s.S.Ramasubramaniam Associates (for R2 in W.P.(MD)No.10377 of 2007) Mr.C.Muthusaravanan } Mr.D.Sureshkumar } Mr.R.Thangasamy } Mr.K.K.Senthilvelan } for private respondents Mr.S.Bharathy Kannan } Mr.P.Krishnasamy } Mr.D.Sivaraman } - - - - :COMMON ORDER M/s.Indian Rare Earths Ltd. (for short IRE Ltd.) which is a wholly owned Central Government Company is the petitioner in all writ petitions except in W.P.(MD)No.10377 of 2007. They have come forward to challenge the orders of the Appellate Authority under the Payment of Gratuity Act, 1972 (Regional Labour Commissioner (Central), Chennai) in W.P.(MD)Nos.1343 to 1346, 12175 to 12177, 11358 to 11360 of 2008, 46 to 48 of 2009. In W.P.(MD)Nos.2851, 5084 to 5093, 5426, 9151 to 9153 of 2008, they have challenged the orders of the Controlling Authority (Assistant Labour Commissioner (Central)) in granting gratuity for the period when the contesting respondents workmen were employed on casual or temporary basis before their spell of employment as permanent workers in the company. In W.P.(MD)No.10377 of 2007, three workers have filed a writ petition challenging the order of the appellate authority under the Payment of Gratuity Act in declining to grant any relief to them. I. History of the litigation : 2.The short facts leading to filing of the writ petitions are as follows: The IRE Ltd. started its mining operations at Manavalakurichi village, a remote non-discrept village in Kanyakumari District in the early 1960s. At that time, they were constructing the plant. Workers were employed for construction works and for early mining operations. The mining operations involved sand gathered by beach washing. After processing the same, they extract various rare minerals. The workers involved in the early construction works were subsequently retrenched for want of work. At that time, because of lack of Unionization and not being aware of various labour legislations, workers did not fight for any relief before the forums under the Industrial Disputes Act, 1947. Subsequently, when mining operations got expanded and there was need for more workers, the workers who were retrenched in the late 1960s and early 1970s, staked their claim for reemployment in terms of Section 25-H of the Industrial Disputes Act. There were disputes between the workers who had by then organised into trade unions and the management of IRE. This resulted in some of the workers who were originally employed either as casual or temporary, being taken back again as casual or temporary and subsequently made permanent. Some of the workers were also absorbed as permanent workers directly. 3.The workers who were either re-employed or recruited as permanent workers after their regular service got superannuation from the employment of IRE Ltd. At the time of superannuation (which were on different dates), the workers were paid their terminal benefits including gratuity. While calculating gratuity, the IRE Ltd. counted their regular service in the company and paid gratuity. The workmen long after their settlement of gratuity by the management, staked their claim for further gratuity for their first spell of employment in the IRE Limited in the 1960s and 1970s. Since the IRE Limited did not pay gratuity for that portion of their service, the workmen moved the Controlling Authority under the Payment of Gratuity Act, 1972, i.e. Assistant Labour Commissioner (Central). The said authority when held in their favour, the IRE Limited filed appeals before the appellate authority, i.e. Regional Labour Commissioner (Central). When that was also rejected, they have come forward with the first set of writ petitions as noted above. 4.In the meanwhile, being aware of such claims being made by other workmen, certain other workmen also moved the Controlling Authority and got computed the unpaid gratuity in favour of them. Instead of filing appeals under Section 7(7) of the Payment of Gratuity Act, the management has straightaway filed second set of writ petitions as noted above. It is only in the case of three workers, i.e. M.Vairamuthu, V.Ponnaiah and N.Harikrishnan, whose beneficial orders were reversed by the Appellate Authority, they have filed W.P.(MD)No.10377 of 2007, challenging the appellate authority's order. II. Floodgate theory not acceptable : 5.The claims made by the workmen are very insignificance. It was unnecessary for the public sector to have filed so many writ petitions challenging the orders passed by the authority constituted under the special enactment, especially in the light of the National Litigation Policy evolved by the Central Government. However, Mr.Sanjay Mohan, learned counsel submitted that once these petitions are decided in favour of the workmen, it will result in large number of cases filed, thereby opening the floodgates by the workmen who are waiting on the wings. 6.This court is not persuaded with the submission made by the learned counsel for the IRE. If workmen are entitled to get paid according to law, it is inconsequence as to the number of cases that may come to this court. While rejecting the floodgate theory, the Supreme Court in N. Kannadasan v. Ajoy Khose reported in (2009) 7 SCC 1 in paragraph 127 of its judgment observed as follows: "127. Mr Venugopal would submit that such an interpretation would open a floodgate. We do not think so. We even wish no occasion like the present one arises in future before the superior courts for their consideration. Even otherwise, the floodgate argument does not appeal to us. In Coal India Ltd. v. Saroj Kumar Mishra37 this Court held: (SCC p.632, para 19) "19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties. (See Zee Telefilms Ltd. v. Union of India38 and Guruvayoor Devaswom Managing Committee v. C.K. Rajan39.)" III. Priliminary objections overruled : 7.Though initially the IRE Limited wanted to contend delay and laches on the part of the workmen in moving the authority under the Payment of Gratuity Act, however, no serious submissions were made on that score. Hence it is unnecessary to deal with the issue elaborately except when dealing with W.P.(MD)No.10377 of 2007. Even otherwise, this court has already held that if there is unpaid gratuity, the workmen can move the authority and the prescription of limitation by rules is beyond the power conferred on the rule making authority. 8.The contesting respondents in W.P.(MD)Nos.5084 to 5093 of 2008 objected to the entertainment of writ petitions against the order of the Controlling Authority especially when there is valuable right of appeal under Section 7(7) of the Payment of Gratuity Act. Therefore, it was urged that the writ petitions are liable to be rejected on that score. However, this court is not persuaded to entertain the objection, since in the other set of writ petitions, the challenge is to the appellate authority's order. If any decision rendered in those writ petitions it will have an automatic bearing on the writ petitions filed against the order of the Controlling authority. Even assuming that the IRE Limited is directed to file appeals before the appellate authority, the appellate authority will be bound by the order passed by this court in the other batch of writ petition since common questions of law are involved in both set of writ petitions. Further, such directions to file appeals will become an empty formality. Therefore, the objection raised in this regard seeking for a direction to IRE Limited to file an appeal before the appellate authority is hereby overruled. IV. Core question raised : 9.In the light of the rival submissions, the only crucial question that arises for consideration is whether the employment rendered during the first spell which resulted in retrenchment and their subsequent re-employment either as permanent or temporary can be calculated as the length of service to enable the workmen to receive gratuity? 10.Incidentally, the management also raised a point of lack of proof of service of workmen for the period for which they have claimed differential gratuity. In case of N.Harikrishnan, one of the petitioner in W.P.(MD)No.10377 of 2007 and one T.Damodharan, the contesting respondent in W.P.(MD)No.11358 of 2008, it is also claimed that they have got maximum of Rs.1 lakh towards gratuity. Therefore, in view of the ceiling of gratuity at the relevant time, they are ineligible to get any further gratuity even though they might have made out a case for differential gratuity. V. Contentions by IRE Ltd. : 11.Mr.Sanjay Mohan for M/s.S.Ramasubramaniam Associates in assailing the order of gratuity authority contended that with reference to rendering service during the first spell of employment, it had come to an end due to retrenchment of workmen. Therefore, their subsequent re-employment being employed on direct recruitment cannot be tagged on because during the interregnum period, there was no master-servant relationship existed. When that employment was brought to an end, which terminated the earlier service, that cannot be counted as a service eligible for gratuity. 12.In this context, the learned counsel for the IRE Limited placed reliance upon the judgment of the Allahabad High Court in Hindalco Industries Ltd. Vs. Shiv Narayan Singh and others reported in 2007 (III) LLJ 897 (Allahabad) and placed reliance upon the following passage found in paragraphs 6 and 7 which are as follows: "6.The petitioner has filed Annexure 3-A which is a discharge notice dated August 6, 1977. Consequently, the petitioner having not worked between the period August 6, 1977 till the date of his re-employment w.e.f. July 9, 1979, the said period as well as the previous period of employment cannot be included while calculating the gratuity under Section 4 of the Gratuity Act, inasmuch as, the said period would not be treated to be in continuous service as contemplated under Section 2-A of the Gratuity Act. 7.In Dungerbha Meghabhai Vs. Shri Arbuda Mills Ltd. and another 1997-III-LLJ (Suppl) 1286 (Guj) the Gujarat High Court held that suspension from employment removes the master and servant relationship and that subsequent re-employment after two or three years would not entitle the workman from claiming service rendered prior to reemployment as continuous service rendered by the workman prior to July 9, 1979 cannot be taken into consideration while calculating the gratuity." 13.He further relied upon a judgment of the Bombay High Court in Maharashtra State Textile Corporation Limited. Vs. Gopal Balu Saikar (since deceased by his heirs Smt.Rukmini Gopal Saikar, Ravindra Gopal Saikar, Gajanan Gopal Saikar, Smt.Shalini Tukaram Kelaskar and Smt.Kalpana Manohar Khedekar) and K.M.Desai, Appellate Authority under the Payment of Gratuity Act, 1972 reported in 2003 (II) LLJ 313 (Bombay) and placed reliance upon the following passage found in paragraph 18 which is as follows: "18....The phrase "liability accruing or arising as a result of continuance of any employee in the service of the Corporation" certainly includes the liability as to pension, gratuity and other matters. It cannot be said that merely because the words pension, gratuity and other matters are absent in Sub-section (2), these are not liabilities as a result of continuance of an employee in the service of the Corporation, and therefore these liabilities became the liabilities of the Corporation from the appointed day. Such a construction would defeat the intention of the Legislature in enacting Sub-section (2) with a non- obstante clause, the intention being to fasten liability on the Corporation only for the period on and after the taking over of management. In the present case, it is not indispute that the taking over of the management took place under Section 18FA on 10th March, 1977. It is further not in dispute that the Petitioners have computed the Respondent's entitlement to gratuity from that date onwards and have paid gratuity to him accordingly." 14.He also relied upon a judgment of the Supreme Court in State of Tamil Nadu and others Vs. Nellai Cotton Mills Ltd. and others reported in 1991 (I) LLJ 35 (SC) = 1990 (2) SCC 518 and relied upon the following passage found in paragraph 9, which is 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 25-B 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." VI. Contentions by the workmen : 15.The counsel for the contesting respondents, per contra, relied upon a judgment of the Himachal Pradesh High Court in H.P.S.E.B. and another Vs. Balak Ram and another reported in 2008 (II) LLJ 8 (HP) and referred to the relevant passage found in paragraphs 22 and 23, which are as follows: "22.The workman had continuously worked with the petitioner-Board initially on daily wages and thereafter on regular basis and thus he always remained in continuous service of the petitioner-Board. 23.The upshot of the above discussion is that the order passed by the appellate authority dated November 16, 2002 cannot be faulted with. The entire period rendered by the workman with effect from 1983 to 1998 is to be counted for the purpose of determining the gratuity under the Payment of Gratuity Act, 1972. The workman is entitled to get the gratuity on the basis of last pay drawn by him I.e. Rs.4239/- at the time of superannuation. The order passed by the appellate authority allowing interest with effect from February 1, 1999 cannot be interfered in view of the law laid down by the Hon'ble Supreme Court as cited above." 16.Further reliance was placed upon a division bench judgment of the Calcutta High Court in Bharat Aluminium Company Ltd. And others Vs. Sukumar Mukherjee and others reported in 1999 (I) LLJ 828 (Calcutta). Reliance was placed upon the following passage found in paragraphs 10 and 13, which are as follows: "10.In view of the aforementioned decision, there cannot, therefore, be any doubt that the word 'continuous service' has to be interpreted liberally. The submission of Mr.Banerjee to the effect that as a lock-out had been declared, there was a cessation in the relationship of employer and employee, cannot be accepted. Not only by reason of a lock-out the relationship of employer and employee does not come to an end, but the same continues. Furthermore, as noticed hereinbefore, the very purpose of the Act was to take over the management at the first instance and to take over the assets of the said undertaking, read with Section 12 thereof clearly goes to show the intention of the Parliament that all those employees who had been working in the Aluminium Corporation, should continue to work in the Central Government and the appellant Company, as the case may be.... ...... 13.We, therefore, in agreement with the judgment and order passed by the learned Trial Judge hold that the writ petitioners would be deemed to be in continuous service, and would be entitled to payment of gratuity despite the fact that a part of service had been rendered by them in Aluminium Corporation of India, subject however, to the observations made hereinbefore. The appeal is, therefore, dismissed, but in the facts and circumstances of this case, there will be no order as to costs." 17.Reliance was also placed upon a judgment of the Bombay High Court in Ramachandra Ganpat Dalvi Vs. Phoenix Mills Ltd. and others reported in 1999 (III) LLJ (Supp) 848 (Bombay). The learned counsel also placed reliance upon a judgment of the Punjab and Haryana High Court in District Food & Supplies Controller, Ropar and another Vs. Prem Chand and another reported in 2010 (I) LLJ 735 (P&H). Reliance was placed upon the following passage found in paragraph 4 of the said judgment, which is as follows: "4.....It would make all the differences in this case, for the workman who had been terminated on February 26, 1983, was complaining that he had been wrongly terminated. The Labour Court had accepted such a premise and directed reinstatement as well as continuity of service. The provision for continuity of service in the award of the Labour Court could only be seen in the context of every other benefit which the workman would have been entitled to, other than the backwages, which, by express order, the Labour Court was disallowing in this particular case. If it had not been a case of reinstatement with continuity of service and merely an incident where a workman, who was badli worker, who on being regularized, could have been disentitled for reckoning the period when he was not actually employed for the purpose of computation of gratuity. This shall not be in a case where there is an intervention through an award of the Labour Court that provides for continuity in the service. The continuity in the sense employed by the Labour Court ought, in my view, to be applied also to the entitlement of gratuity." 18.In the light of these submissions, it has to be seen whether the contentions raised by the IRE Limited is legally valid? VII. Bird's eye of the legislature provisions : 19.It must be noted that the Parliament has amended the Payment of Gratuity Act and introduced Section 2A by amending Act 26/1984. The said section reads as follows: 2A.Continuous service.- For the purposes of this Act, - (1)an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay- off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;" Therefore, it is easily seen that the definition includes both continuous and discontinuous service. 20.The liability of the employer to pay gratuity is provided under Section 4, which reads as follows: "4.Payment of Gratuity.-(1)Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,- (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: 4.(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of [an employee who is employed in a seasonal establishment, and who is not so employed throughout the year] the employer shall pay the gratuity at the rate of seven days' wages for each season." VIII. Findings : 21.Therefore, when contingency under Section 4(1) takes place, the employer is liable to pay gratuity in terms of length of service of workman. It is not a case of the management that the workmen are not entitled for gratuity as contingency under Section 4 is not fulfilled. In the present case, the workmen are eligible to get gratuity even as per the admission of the management. They have also paid gratuity for the second spell of their employment. But the only question is whether the management has paid gratuity for full length of service of workmen though done on two spells of employment. If the contention of the IRE Limited is accepted, then it is easy for the employer to provide employment in different spells and deny gratuity to the workmen inspite of the fact the workmen might have put in sufficient length of service. Therefore, once the workmen become eligible to get gratuity, then the entire length of service must be counted including different spells under which they were employed by the same employer. Otherwise, it will defeat the very purpose of the enactment. 22.Before dealing with the specific contentions of the parties, it is necessary to deal with the object of the Act and the interpretation to be made while construing the provisions of the Act. The Supreme Court in Jeewanlal Ltd. v. Appellate Authority reported in (1984) 4 SCC 356 held in paragraphs 11, 13 and 16 as follows: 11. In construing a social welfare legislation, the court should adopt a beneficent rule of construction; and if a section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the language is plain and unambiguous, the Court must give effect to it whatever may be the consequence, for, in that case, the words of the statute speak the intention of the Legislature. When the language is explicit, its consequences are for the Legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficent purpose of legislation, the courts must not yield to the temptation of seeking ambiguity when there is none. ..... 13.The intention of the Legislature enacting sub-section (2) of Section 4 of the Act was not only to achieve uniformity and reasonable degree of certainty, but also to create and bring into force a self-contained, all-embracing, complete and comprehensive code relating to gratuity as a compulsory, retiral benefit. The quantum of gratuity payable under sub-section (2) of Section 4 of the Act has to be fifteen days' wages based on the rate of wages last drawn by the employee concerned for every completed year of service or more in excess of six months' subject to the maximum of 20 months' wages as provided by sub-section (3) thereof. The whole object is to ensure that the employee concerned must be paid gratuity at the rate of fifteen days' wages for 365 days in a year of service. The total amount of gratuity payable to such employee at that rate has to be multiplied by the number of years of his service subject to the ceiling imposed by sub-section (3) of Section 4 of the Act viz. that such amount shall not exceed 20 months' wages. The construction of sub-section (2) of Section 4 of the Act adopted by the learned Single Judge of the Andhra Pradesh High Court in Associated Cement Company case3 and later approved by a Division Bench of that Court in Swamy case4 would make it utterly unworkable. If the determination of the amount of gratuity payable under sub-section (2) of Section 4 depends on the number of calendar days in a month in which the services of the employee concerned terminates, the quantum of gratuity payable would necessarily vary between an employee and an employee, belonging to the same class, drawing the same scale of wages, with like service for the same number of years. Obviously, this could not have been the legislative intention. ..... 16.It has been our unfortunate experience that a beneficent measure like Payment of Gratuity Act, 1972 providing for a scheme of retrial benefit, has been beset with many difficulties in its application. It need not be over emphasised that a legislation of this kind must not suffer from any ambiguity. In the recent past, the Court in Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd.7 faced with the problem as to whether the expression "actually employed" in Explanation I to Section 2(c) of the Act must, in the context in which it appeared, meant "actually worked". The inclusive part of the definition of "continuous service" in Section 2(c) is to amplify the meaning of the expression by including interrupted service under certain contingencies which, but for such inclusion, would not fall within the ambit of the expression "continuous service". But the use of the words "actually employed" in Explanation I to Section 2(c) of the Act created a difficulty. The Court observed that it was not permissible to attribute redundancy to the words "actually employed" and, accordingly, held that the expression "actually employed" in Explanation I to Section 2(c) of the Act meant "actually worked". The law declared by this Court in Lalappa Lingappa case7 resulted in denial of gratuity to a large number of permanent employees, whose short term absence had remained unregularised, due to lack of appreciation of the significance for the purpose of working out their entitlement to gratuity. It is to be regretted that the Government waited for a period of three years before introducing the Payment of Gratuity (Amendment) Bill, 1984 to remove the lacuna in the definition of continuous service in Section 2(c) of the Act by specifically providing that a period of absence in respect of which no punishment or penalty has been imposed would not operate to interrupt the continuity of service for the purpose of payment of gratuity. It also amplified the definition of continuous service under Section 2(c) of the Act. Such a belated legislation must have worked great injustice to a large number of permanent employees." 23.The Supreme Court while considering the payment of closure compensation under Section 25-FFF of the Industrial Disputes Act had an occasion to deal with a similar contention of the employer in Standard Motor Products of India Ltd. v. A. Parthasarathy reported in (1985) 4 SCC 78. Section 25-FFF reads as follows: 25FFF. Compensation to workmen in case of closing down of undertaking.- (1)Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched :" When payment of closure compensation was sought to be denied on the ground that a year preceding the closure, there was no continuous service for one year and thereby the employer denied their statutory liability to pay gratuity, repelling the said contention, the Supreme Court in Standard Motor Products of India Ltd.'s case in paragraphs 1 and 2 held as follows: "The Standard Motor Products of India Limited closed down their factory on May 22, 1970. During the 12 months preceding the date of closure, the workmen were on strike from September 12, 1969 to November 6, 1969 and February 12, 1970 to February 26, 1970. The strike was illegal from September 19, 1969 to November 6, 1969 and from February 12, 1970 to February 26, 1970 as the Government of Tamil Nadu had made an order under Section 10(3) of the Industrial Disputes Act on September 19, 1969 prohibiting the strike. After the closure on May 22, 1970, there was a settlement between the management and the workmen on February 15, 1971. Under the terms of the settlement, it was agreed that the closure should be accepted as a fact, with the necessary legal consequences to follow. The factory resumed work as a new unit on January 22, 1971. The erstwhile employees were taken back as new employees, but it was agreed that their previous services were to be taken into account for the purpose of gratuity. Two hundred and seventeen workers filed petitions under Section 33-C(2) of the Industrial Disputes Act claiming closure compensation under Section 25-FFF. The petitions were dismissed by the Labour Court. Two writ petitions were filed before the High Court of Madras as test cases and both of them were allowed by the High Court. The Management of Standard Motor Products of India Limited has come up in appeal having obtained a certificate under Article 133(1)(a) of the Constitution. 2.Shri G.B. Pai, learned counsel for the appellant Management submitted that the workmen were not entitled to any closure compensation under Section 25-FFF 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 25-B(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 25-B(2) did not exist. Under Section 25-B(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 would 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. The further submission of Shri Pai that the number of days on which the workmen actually worked under the employer would be less than 240 days if Sundays and other holidays for which the workmen were paid wages were excluded has already been answered by us in the case of Workmen of American Express International Banking Corporation v. Management1 in which judgment has just been pronounced by us. In the circumstances, both the appeals are dismissed with costs." 24.The term "continuous service" defined under Section 25-B of the Industrial Disputes Act is more or less similar to the definition under Section 2-A of the Payment of Gratuity Act. Reliance placed upon Nellai Cotton Mills Ltd's case (cited supra) may not be appropriate, because that case arose on an interpretation of Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act 1981. There, the Supreme Court was concerned about the grant of permanent status to workmen. Therefore, it was held that the term "continuous service" will not include discontinuous service brought about by either termination or non employment. The idea there being to grant permanent status. The workmen who, by a deemed fiction provided under Section 3 of the Tamil Nadu Act 46 of 1981, is entitled to be made permanent. The circumstances under which that law was enacted was totally different from the aim and object of the Payment of Gratuity Act. The Payment of Gratuity Act is a welfare legislation which provides statutory terminal benefits for an employee on account of his long service rendered to his employer. 25.In this context it is necessary to refer to the judgment of the Supreme Court in Hathising Manufacturing Co. Ltd. v. Union of India reported in (1960) 3 SCR 528 and in paragraph 14, the Supreme Court held as follows: "14.Compensation related to the length of service of the employee is also not unreasonable. An employee remaining employed in an industry for an appreciable length of time acquires experience and some degree of aptitude in the branch in which he is employed and his experience in that branch qualifies him to promotion and to receive wages at a higher level. By his continued employment, he reaches seniority in the cadre of employment, with chances of promotion, the benefit of which he loses by sudden termination of employment. The workman, on termination of employment, may have to compete for employment at a lower level in branches to which he may be by experience or aptitude, not fitted, or to seek employment in a job similar to the one terminated at a lower level. If, in the light of these considerations, the legislature has related the compensation payable on termination of employment to the period of service of the employee, the provision cannot be regarded as unreasonable." 26.In fact, the Supreme Court vide its judgment in Jeewanlal (1929) Ltd., Calcutta Vs. Workmen reported in AIR 1961 SC 1567 found that there is distinction between closure compensation and gratuity and they are different concept. Thus saying, they had upheld the Award of an Industrial Tribunal granting gratuity. If the object was to provide gratuity on the basis of length of service, then certainly the employer cannot shirk their liability to pay gratuity on the basis of length of service when once the workmen become eligible to get gratuity in terms of Section 4(1) of the Payment of Gratuity act. 27.The judgment of the Allahabad High Court in Hindalco Industries Ltd.'s case (cited supra) drew inspiration from the Nellai Cotton Mills case (cited supra) which arose under a different enactment and that cannot be applied to the Payment of Gratuity Act. Hence this court respectfully disagree with the judgment of the Allahabad High Court. 28.The judgment of the Bombay High Court in Maharashtra State Textile Corporation Limited (cited supra) arose under the interpretation of the Industries (Development and Regulation) Act, 1951 by which sick textile mills were taken over and the Act itself fixed limited liability on the new employer. All that judgment said was the new employer need not pay gratuity for the service rendered in the erstwhile textile company. Hence their liability was limited. It does not mean that the workmen cannot claim gratuity from the erstwhile employer for that portion of his previous employment. 29.Likewise, the decisions cited by the contesting respondents cannot have much bearing on the present case. In the H.P.S.E.B.'s case (cited supra), the Court was concerned about the casual/temporary employment being continued with the permanent employment and total length must be counted. Similarly, the division bench judgment of the Calcutta High Court in Bharat Aluminium Company Ltd.'s case (cited supra) was a case relating to lockout where relationship of employer and employee subsists even during the period of lockout. 30.The judgment of the Punjab and Haryana case in District Food & Supplies Controller, Ropar and another's case (cited supra) rendered by K.Kannan, J is a case where the worker's non employment was set aside by the labour court and he was reinstated. Therefore, the interrupted service was considered to be deemed continuous service. But, as per the ratio laid by the Supreme Court in Standard Motor's case (cited supra), once a workman is entitled to get gratuity, then there is no reason to deny his earlier spells of employment. It is only by such interpretation the provisions of the Act can held to be meaningful. Thus the workers also will be rewarded for the length of service actually put in by them. 31.In view of the above, the objection raised by the management on the findings rendered by the appellate authority and the controlling authority for granting gratuity for the workmen towards their first spell of employment either temporary or casual basis has to be rejected. 32.The second contention that the workmen have failed to discharge their obligation in some of the cases and the authorities simply went by the sworn statement made by the workers and there is no evidence in this regard also cannot be accepted as rightly commented by the authority, the service records produced by the IRE Ltd. is delightfully vague. They have also failed to discharge their obligation under law. In the matter of discharging the obligation, it is not as if the employer do not have any obligation. 33.The Supreme Court in Director Vocational Education and Training and another Vs. Nashim Shaikh Chand reported in 2006 (10) SCC 301 in dealing with the question of burden of proof regarding the length of service, in paragraph 8 and 10 held as follows: "8.Learned counsel appearing on behalf of the respondent, however, has submitted that despite specific orders issued by the Labour Court the muster rolls for the period in question had not been produced by the appellant. This would have clearly shown whether the respondent was employed during the period in question with the appellant or not. The appellant having failed to produce the muster roll an adverse inference could be drawn under Section 114 of the Evidence Act. ..... 10.The muster roll is not the only basis for establishing the employment of an employee with the employer. The appellant in this case had produced other documents on the basis of which the Industrial Court came to the conclusion that the appellant's case must be accepted. These documents have neither been considered by the Labour Court nor by the High Court held to be uncreditworthy. They should have therefore been relied upon as genuinely reflecting the factual situation. Besides, the respondent has admitted that she had taken employment with the Boys' Town Public School. Her defence to the charge of taking up employment elsewhere was met by her statement that her daughter was employed in her place instead. The Labour Court accepted this as a "probable" situation without asking for any further corroborative evidence. As far as the oral evidence by the respondent is concerned, the High Court has not relied upon the evidence of such employee in reversing the finding of the Industrial Court. The Industrial Court as a Revisional Court had considered the evidence and came to its conclusion on the basis thereof. The Court under Article 226 in exercise of its jurisdiction should not have interfered with the order unless it was found that the Revisional Court had exercised its jurisdiction improperly...." 34.Further a division bench of this court headed by M.Srinivasan, J. (as he then was) in S.Ramaiah Mudaliar Brothers (represented by its Proprietor, S.Ramaiah Mudaliar), Sankarankoil and others Vs. Industrial Tribunal, Madras and another reported in 1991 (2) LLN 158 (Madras) in dealing with the appreciation of evidence under the provisions of the Industrial Disputes Act in terms of Rule 39 of the Tamil Nadu Industrial Disputes Rules, held that in good conscience, equity evidence can be accepted by a tribunal. If proof affidavits are filed and the workers are ready to get cross examined and still if there is no cross examination, then the contents of the affidavits can also be accepted as substantial evidence. The relevant passage found in paragraph 11 of the said judgment reads as follows: "11.... we would also hold that the writ petitioners have to blame themselves for not cross-examining the deponents of the affidavits and there was no error in the procedure adopted by the Tribunal. The Tribunal cannot be found fault with for not inviting the petitioners to cross-examine the deponents. There was no question of the petitioners being denied an opportunity or cross-examining the deponents. If the petitioners or the opposite party had stated that they would like to cross-examine the deponents, the latter would have presented themselves for cross-examination. The decisions relied on by learned counsel for the petitioners with regard to this aspect of the matter are not relevant as we have found that there is no question of any denial of opportunity to the writ- petitioners and there was no violation of the principles of natural justice. We do not find any error in the acceptance by the Tribunal of the affidavits filed by the workers." 35.In similar circumstances, the Bombay High Court in Ramachandra Ganpat Dalvi Vs. Phoenix Mills Ltd. and others reported in 1999 (III) LLJ (Supp) 848 (Bombay), in paragraph 5 held as follows: "5.The appellate authority also relied upon the circumstance against the employee that upto January 17, 1982 the first spell till he worked was paid gratuity in the year 1990 which was accepted by him. If in law the employee is entitled to gratuity on the basis that he was in continuous service till May 31, 1992, payment of gratuity in part and its acceptance by employee will not make any difference in the eye of law. I have already observed that the employer did not lead any evidence in support of its case that on March 3, 1985 the employee was re-employed without continuity of service. In the absence of any evidence of the employer if the controlling authority relied upon the evidence led by the employee in holding that the employee was in continuous service in view of the provisions contained in Section 2(a) of the Act of 1972, the finding recorded by the controlling authority was fully justified and the appellate authority erred in setting aside the said finding. 36.Therefore, this court do not find any fault with the steps taken by the workmen. The questions raised regarding lack of proof about employment is also rejected. Therefore, all writ petitions except W.P.(MD)No.10377 of 2007 are rejected. In W.P.(MD)No.11358 of 2008, a contention was raised that by grant of gratuity of Rs.23,189/-, the worker will be paid in excess of Rs.1 lakh which was the ceiling fixed at the relevant time as the worker was already paid Rs.82,817/-. Therefore, in that case, the management can pay the amount after adjusting the amount which will be in excess of Rs.1 lakh and it works out to Rs.6,006/-. IX. Case filed by the workmen : 37.In W.P.(MD)No.10377 of 2007, the three writ petitioners aggrieved by the order of the appellate authority, dated 23.09.2005 in reversing the order of the controlling authority, dated 31.12.2004. The Controlling Authority framed two issued which are as follows: "1.Whether the delay in filing the Claim Application before the Controlling Authority has to be condoned or not? 2.Whether the Applicant is eligible for Gratuity for the casual period of service or not?" 38.Answering these two issues, the Controlling Authority in its order stated as follows: "For the first question, the Payment of Gratuity, being a beneficial piece of legislation and as the delay in filing the Claim Application is not wilful and the limitation only applies to the civil or criminal court and not to Payment of Gratuity Act and the Act has vested an executive authority with judicial and quasi judicial powers [City College, Calcutta Vs. State of West Bengal, 1987 I LLJ 41 (Cal.BD)] and to give a liberal interpretation to the provisions of the Payment of Gratuity Act, the delay in filing of the Claim Application is condoned and the Claim Application is a fit claim for condoning the delay. To the second question, whether the Applicant is eligible for the Gratuity for the casual period of service, the Act does not pose any differentiation in the casual or regular period of service. It includes all types of services rendered to the Respondent and being a beneficial piece of legislation, the service of the Applicant employee was regularised from the service of the casual to a permanent service and the same is categorically proved during the evidences adduced and the endorsement made in the Service Record which proves the claim of the Applicant that a casual period of service existed and the Respondent Co., has not relied upon any documentary evidences which existed during the casual service of the Applicant to disprove the claim. Therefore the Applicant is eligible for the Gratuity for the casual service rendered to the Respondent." 39.But, however, the appellate authority by a common order, dated 23.09.2005 set aside the order of the controlling authority on the ground of delay. In paragraphs 4 and 5 of the order, which is impugned, it was observed as follows: "4.On the other hand, the Respondent has submitted that the order of the Controlling Authority be upheld other than the said submission, they have no other issues. 5.On a careful scrutiny of the above, the issues in question are: a)Whether the Appellant is liable to pay the gratuity amount as ordered by the Controlling Authority or not? From the material documents, it is evident that the Controlling Authority has failed to assess the material records available on record and to ascertain additional facts from the respondent regarding their casual employment. The Controlling Authority has also failed to ascertain reasons for each day's delay and a delay of 7 years has been condoned without assigning any reason. ORDER The Order of the Controlling Authority is reversed." 40.As already held by this court, the question of delay will not arise in moving the authority. The form prescribed by the Government under delegated power cannot be prescribed substantial power of litigation as noted already. Since similarly placed persons were getting benefits, these three petitioners cannot be denied the relief claimed. Hence the order of the controlling authority, dated 31.12.2004 will stand restored. But, in the case of Mr.V.Ponniah, one of the petitioner in this writ petition, it was stated that he had received Rs.1,05,098/- which is the maximum eligible payment at the relevant time. If that is so, he will not be eligible for any further payment. In respect of M.Vairamuthu and N.Harikrishnan, it is suffice that the management pays altogether Rs.1 lakh towards gratuity claim. After setting off the amount of Rs.96,540/- already paid in respect of M.Vairamuthu and in respect of N.Harikrishnan Rs.87,014/-, the management will have to pay the balance amounts to both of them. Hence W.P.(MD)No.10377 of 2007 will stand allowed to the extent indicated above. 41.In the light of the above, all writ petitions except W.P.(MD)No.10377 of 2007 will stand dismissed. W.P.(MD)No.10377 of 2007 will stand allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petitions stand closed. vvk To 1.Regional Labour Commissioner/ (Authority under Payment of Gratuity Act), No.22, Haddows Road, Shastri Bhavan, Chennai-6. 2.The Head, Indian Rare Earths Ltd., Manavalakurichy Plant, Manavalakurichy Post, Kanyakumari District-629 252. 3.Regional Labour Commissioner (Central) (Appellate Authority), Under Payment of Gratuity Act, No.26, Haddows Road, Sastri Bhavan, Chennai-600 008. 4.Assistant Labour Commissioner (Central), (Controlling Authority Under Payment of Gratuity Act), Lady Doak College Road, Chinnachokkikulam,
Monday, August 5, 2013
PERMANANCY- ON COMPLETION OF 480 DAYS IN 2 YEARS PERMANANCY IS AUTOMATIC-NO ORDER IS REQUESTED-MADRAS HC DIVISION BENCH
Madras High Court R. Lakshmi vs The Chief Engineer (Personnel) on 3 August, 2012 Dated: 03.08.2012 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.5980 of 2004 R. Lakshmi .. Petitioner vs. 1. The Chief Engineer (Personnel), Tamilnadu Electricity Board, 800, Anna Salai, Chennai 600 002. 2. Superintending Engineer, Erode Hydro Generation Circle, Tamilnadu Electricity Board, Erode. .. Respondents PRAYER: This writ petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, directing the Respondents to pay the Petitioner family pension, family benefit fund and other terminal benefits including gratuity and also to provide the Petitioner employment on compassionate ground, Award costs. For Petitioner : Mr. V. Ajoy Khose For Respondents : Mr. P.R.Dhilip Kumar ORDER M.VENUGOPAL,J. The Petitioner has focussed the present Writ of Mandamus praying originally before a Learned Single Judge of this Court for directing the Respondents to pay her family pension, family benefit fund and other terminal benefits including gratuity and also to provide employment to her on compassionate ground. 2. It is not in dispute that the Petitioner is the wife of the deceased Raju, who worked as a Contract Labour in the Civil Section of Power House at Mettur Dam under various Contractors from 01.12.1991 to 30.04.1999. Also that he worked as a Helper in Tamilnadu Electricity Board till his demise on 23.11.2003. The Tamilnadu Electricity Board had not passed orders to make the petitioner's husband as a permanent employee. Subsequently, the Petitioner projected a claim for the retirement benefits on the basis that her deceased husband Raju ought to be treated as a permanent employee of Tamilnadu Electricity Board and also made a claim for Compassionate Appointment to her daughter Valarmathi. 3. The Respondents/Tamilnadu Electricity Board resisted the claim of the Petitioner by contending that her husband Raju was not a permanent employee of the Tamilnadu Electricity Board and therefore the benefits of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 were not conferred. As such, the Petitioner is not entitled to claim the relief sought for in the Writ Petition. Furthermore, it is the stand of the Respondents/Tamilnadu Electricity Board that the deceased Raju had not satisfied the ingredients of the aforesaid Act in order to claim permanency. 4. When the Writ Petition was taken up for arguments on 08.02.2012, the Learned Single Judge during the course of arguments entertained a doubt about the correctness of the view taken by another Learned Single Judge of this Court in the decision of S.Vijayalakshmi Vs. Tamilnadu Water Supply and Drainage Board (represented by its managing Director, Chennai) reported in 2005(3) L.L.N.706 wherein in paragraphs 4 and 5, it is held as follows: A bare perusal of the aforesaid provision makes it clear that such provision casts an obligation on the employer to confer permanent status on an employee who has completed 480 days work in course of two years. It is of course true that during the life time of the husband of the Petitioner, no such permanent status was actually conferred by any order of the management. It is also true that jurisdiction has been conferred on the inspector to conduct enquiry if necessary to find out whether an employee has completed 480 days or not. However, when facts are not in dispute, merely because no such enquiry had been conducted by the inspector, the Petitioner's husband cannot be denied the benefits of the Act. In view of the mandatory nature of the provision, it shall be taken that an employee who had completed 480 days in a period of two years was permanent. This view receives considerable support from the decision reported in S.Gandhimathi V.Deputy Registrar of cooperative Society (MILK) Tirunelveli and others (2003(3) L.L.N.743) 5. Once it is held that the deceased employee was in law entitled to the benefit of acquisition of permanent status, any consequential benefit cannot be denied to the widow on death of such person or merely because during the life time of the employee no such permanency had been actually conferred . Therefore, the Learned Single Judge, during the course of hearing of the Writ Petition, opined that for considering the public importance involved, it would be better that the said question is to be examined by a Larger Bench and framed the following question for reference. Whether a workman, who has completed 480 days of continuous service in a period of 24 calendar months, would become automatically a permanent employee under the employer or he will become a permanent employee only on conferment of permanent status either by the employer on his own or on a direction given by a competent authority under the Act Accordingly, the Registry was directed to place the papers before the Hon'ble Chief Justice of this Court to consider the matter for constituting a larger Bench. 5. In pursuance of the directions issued by the Learned Single Judge in W.P.No.5980 of 2004 on 08.02.2012, the Registrar (Judicial) of this Court put up a Note before the Hon'ble Chief Justice as to constitution of the Hon'ble Division Bench and the Hon'ble Chief Justice on 28.02.2012 had accordingly constituted this Division Bench and the Writ Petition was posted before this Court. 6. The case of the Petitioner is that her husband Raju (since deceased) worked as a Contract Labour in the Civil Section of Power House at Mettur Dam under different contractors during the period from 01.12.1991 to 30.04.1999. He was absorbed by the Respondents in the Tamilnadu Electricity Board as a Helper from 01.05.1999. He died on 23.11.2003. The Tamilnadu Electricity Board employed thousands of workmen as Contractor Labourers. According to the Petitioner, her husband was directly employed by the Tamilnadu Electricity Board from 01.05.1999. 7. The Hon'ble Supreme Court appointed a commission headed by the Hon'ble Mr.Justice KHALID, (Retired Judge of Supreme Court) to look into the aspect of absorption of Contract Labourers and pursuant to the order of the said Commission, 14575 workmen were absorbed into the service of the Tamilnadu Electricity Board. 8. Subsequently, thousands of workmen were continued to be employed as Contract Labourers in the Tamilnadu Electricity Board. According to the petitioner, the Hon'ble Chief Minister of Tamilnadu Government announced in the Legislative Assembly that contract system would be abolished in the generation side of Tamilnadu Electricity Board and B.P.No.17 dated 29.04.1999 was issued absorbing contract labourers employed in all the thermal power stations who were on employment as on 05.01.1998. Similarly, B.P.22, dated 14.05.1999 was issued for absorption of contract workmen employed in Hydro Generation Stations. 9. The plea of the Petitioner is that by virtue of B.P.No.22 dated 14.05.1999 of the Tamilnadu Electricity Board, her husband Raju (Contract Labour later Deceased) became a direct Employee of the Tamilnadu Electricity Board from 01.05.1999 and he was identified as one of the Contract Labourers employed as on 01.05.1998 eligible to be absorbed from 01.05.1999 and the Selection Committee constituted pursuant to the B.P.22 dated 14.05.1999 directed the absorption of her husband as a Helper in the Tamilnadu Electricity Board. Unfortunately, the Petitioner's husband Raju committed suicide on 23.11.2003 (during his employment with the Tamilnadu Electricity Board from 01.05.1999.) He was directly employed by the Tamilnadu Electricity Board. The reason for her husband's suicide is due to elopement of her elder daughter with another person. He left behind him, his wife (the Petitioner), two daughters and his mother. The Petitioner's family had no source of livelihood except the income of her deceased husband. She requested the Respondents to pay her family pension and other terminal benefits including Gratuity and also requested to provide for a compassionate appointment. She submitted written representations dated 08.12.2003 and 08.01.2004 to the Respondents to pay her family pension and provide her the compassionate appointment. However, the Respondents had not sent any reply. Therefore, she was constrained to file the present Writ Petition. 10. The Respondents/Tamilnadu Electricity Board contend that till the death of Petitioner's husband, he was not included as a Permanent Employee of the Board to get the benefit of compassionate appointment and further the question providing compassionate appointment to the petitioner does not arise because her husband worked under contract basis. Moreover, without following the procedure prescribed relating to the employees of TANGEDCO, she could not be provided with an employment. That apart, her husband was not entitled to be absorbed in regular service. As such, the Petitioner's claim for compassionate appointment is not maintainable in law. 11. The Respondents / Tamilnadu Electricity Board pleaded that the scheme of employment assistance is available only for employees of the Board and as per B.P.Ms.(FB) No.46 (Adm.Branch) dated 13.10.1995, employment assistance would be provided to dependants of the deceased employee of the Tamilnadu Electricity Board who died in harness and this scheme is not available to the contract labourers, who are not the employees of the Board. In short , it is the stand of the Respondents that there is no provision in the Tamilnadu Electricity Board to consider the application of the Petitioner. 12. The Respondents, in their Additional Counter dated 23.04.2012, had averred that based on the demands from various Unions and Individuals, the Tamilnadu Electricity Board decided to identify the contract labourers engaged by the contractors to execute the Tamilnadu Electricity Board works in the Hydro and Gas Turbine generating stations fixing the base date as 05.01.1998. A list of 198 contract labourers were prepared as per the details furnished by the contractors, Contract Labourers and the Assistant Engineers/Junior Engineers and they were identified. 13. In the said list, the Petitioner's husband's name S. Raju S/o. Sundaram was in Sl. No. 15. Added further, as per Permanent B.P.(FB) No.22 (Secretariat Branch of the Tamilnadu Electricity Board) dated 14.05.1999, 198 number of contract labourers engaged in Erode Generation Circle was announced on 12.07.1999; a Committee comprising of Assistant Administration Officer, Executive Engineer / Power Houses / Mettur and the Superintending Engineer, Erode Generation Circle scrutinised the list of the aforesaid 198 contract labourers and arrived at the list of 185 contract labourers deleting 13 numbers of them as below: i. Those who had worked for less than 480 days : 11 nos ii. Involved in criminal case : 1 no iii. Not working as on 05.01.1998 : 1 no In the list of 185, the Petitioner's husband S. Raju was identified and he figured in Sl.No. 109. 14. Continuing further, in B.P.(ch) No. 161 (Adm Branch) dated 27.7.1998 of the Tamilnadu Electricity Board, orders were issued to pay daily wages at the PWD schedule of rates with effect from 01.07.1998 to the contract labourers. Since there were no official records to support the number of days worked by the contract labourers, because of representations and objections to the seniority of the list, the Tamilnadu Electricity Board decided to fix the seniority of the 198 contract labourers based on the actual number of days for which wages were paid by the Board relating to the period from 01.05.1999 to 31.12.2000. On that basis, the list of contract labourers, who had earned wages for more than 480 days, was prepared. The list for Erode Generation Circle consists of 163 contract labourers, in which, the Petitioner's husband name S. Raju was found at Sl.No.154. 15. By means of another proceedings in BP (FB) No. 3/ 29.01.2001, orders were issued to absorb 126 contract labourers of Erode Generation Circle as Helpers and the said orders issued, were upheld by the orders of the Division Bench of this Court in W.A.No.2647 of 2002 filed by the Tamilnadu Electricity Board. As per the seniority of the list of the above 163 contract labourers, the first 126 contract labourers of Erode Generation Circle were appointed as Helpers. However, the Petitioner's husband who was in Sl.No.154, had to wait for his turn. After this absorption, there were 65 contract labourers who were yet to complete 480 days out of the 198 and after deducting the discontinued persons, those involved in criminal case and bogus certificate cases. The petitioner's husband name S. Raju was at Sl.No.28 in the list. 16. The prime contention of the Respondents is that the Petitioner's husband S. Raju expired on 23.11.2003 and therefore, his name was not included in the final list of 61 contract labourers of Erode Generation Circle, who were absorbed as Helpers as per permanent B.P.No.14 (Adm.Br) 05.08.2005. 17. The Learned Counsel for the Petitioner contended that the Petitioner's husband, deceased S. Raju, worked for more than 480 days in the Respondent/Tamilnadu Electricity Board ever since 01.05.1999 and further, he was absorbed as Helper as per B.P.No. 22, dated 14.05.1999 and therefore, he is entitled to be given the permanent status as per the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981. 18. To lend support to the said contention, the learned counsel for the Petitioner cites the decision in Metal Powder Co.LTD., Tirumangalam and another VS. The State of Tamil nadu and another, [1985 (2) LLJ 376 at page 377] wherein the Division Bench of this Court has held that Permanent status is to be claimed only by a workman who has not only put in continuous service for a period of 480 days but also in service for 24 calendar months. 19. He also seeks in aid of the decision of the Hon ble Supreme Court in State of Tamil Nadu and others Vs. Nellai Cotton Mills Ltd and others, [1991 (1) LLJ 35 at page 38] wherein, in paragraph 9, it is laid down 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 an 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." 20. He invites the attention of this Court to the decision in J.K.Cotton Spg. & Wvg. Mills Co. Ltd. Kanpur and State of U.P. And others [1998 WLR 514 at page 515] wherein this Court has held thus: In the instant case, the second respondent after satisfying himself that the members of the petitioner union are entitled for the benefit of Section 3(1) of the Act, forwarded the representation of the members of the petitioner union for appropriate relief. Under such circumstances, if the first respondent Corporation failed to pass appropriate orders, giving benefits of conferring permanent status to the members of the petitioner union, certainly the first respondent shall face the consequences of prosecution provided under Section 6 of the Act. The respondents are directed to modify the proceedings dated 24.02.1989 to confer the permanent status to individual workmen from the day on which they satisfy the condition, namely completing the continuous service for period of 480 days in a period of 24 Calendar months in the respondent establishment. In those circumstances, further it is held that Section 3 (1), being a non-obstante provision, it prevails over any law for the time being in force which includes any service Rules, Government Orders or Government Instructions. Therefore, want of sanctioned posts as required under General Service Rules cannot take away the rights conferred under Section 3(1) of the Act. Similarly, Government Orders which require that the appointments should be made only through Employment Exchange also cannot be a ground to refuse the right provided under section 3(1) of the Act of the petitioners to they comply the requirements prescribed under Section 3(1). Therefore, it is not open for the respondent to take shelter under any other law in force, much less, any Government Orders, Government Instructions to deny the benefits conferred under Section 3(1) of the Act, to the petitioners if they satisfy the conditions prescribed therein, irrespective of the availability of sanctioned posts or sponsorship from Employment Exchange 21. The Learned counsel for the petitioner cites the decision of the Division Bench Judgement of this Court in Mamundiraj N. & Others Vs. Bharat Heavy Electricals Ltd., Trichy and Another [1999(1) LLJ 622 at page 623], wherein this Court has observed as follows:- For conferment of permanent status on a workman, he is required to work in an industrial establishment for a period of 480 days in the proceeding 24 calendar months. Interrupted period of service for no fault of workman cannot be unaccounted for the purpose of calculating 480 days of continuous service. Further, it is also, held that The Management cannot be permitted to dwell in unfair labour practices, which is a glaring case in hand especially when the workmen though named as casual labourers were continuously in service. The Order issued in 1987 was to the effect that the workman was employed at Rs.17/- per day to maintain the Service Department w.e.f. November 21, 1987 on purely temporary basis while they were simply relieved of their duties w.e.f. 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 3 months was given and reemployed. The methodology adopted by the Management depriving the workmen of conferment of permanent status as enjoined by the 1981 Act by bringing about the interruption of service while there was still work force required to continue the work uninterruptedly as has been demonstrated by the events of keeping the workmen in employment for 480 days in preceeding 24 calendar months. If it is not an unfair labour practice, it is difficult to assume what more can be the unfair labour practice. Moreover, in the said decision, it is also laid down by this Court as under: It is clear that the Management has made a crude attempt to deprive the workmen of the benefit which the Statute has specifically conferred on them. 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. What the Statute accepts is that the workmen should be in the employment of the employer for a period of 480 days in preceding 24 calendar 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. 22. Apart from the above, the Learned counsel for the petitioner relied on the following decisions:- a. In the decision of this Court in S. Gandhimathi Vs. The Deputy Registrar of Cooperative Society (Milk) Tirunelveli & 3 others [2003 WLR 479 at page 484], this Court has held that By applying the rule of fiction the deceased is deemed to have been regularised. In terms of The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act, the deceased ceased to be a casual and deemed to be a regular employee with permanent status on his completing 480 days and on the date of death he was a permanent employee and therefore his son for whose benefit the writ petition has been filed is entitled to be considered for appointment on compassionate ground. The contention that the deceased always remained a casual labourer as no orders have been passed even though proposal was sent for regularisation cannot be sustained. b. In the decision of Superintending Engineer, Vellore Electricity Distribution Circle, Vellore, and others Vs. Inspector of Labour, Perambalur and others [2004 (3) L.L.N at page 598 and at special page 599 and 560], this Court has held as under: The fact about the engagement of the services of the concerned workmen was never disputed by the Board. The only stand was that since they were all contract workmen, they were not entitled for any benefit to be conferred under the provisions of the Act. But even in respect of the said stand except the ipsi dixit of the stand taken in the counter nothing was placed before the Inspector of Labour. Even about the non-maintenance of the required forms under the provisions of the Act, the stand of the Board was that since they were all contract labourers, the question of maintaining those records did not arise. It is pertinent to note that while it was contended that the persons were employed as contract labourers under certain guidelines, nothing was placed before the Inspector of Labour in support of the said stand. It can be safely held that by virtue of S.5 read along with rule 6(4), the Inspector of Labour can pass positive orders conferring permanent status to the workmen concerned after examining the representation made before him and after holding an enquiry. The Divisoin Bench of this Court has also held so in the judgment in Metal Powder Company Ltd., case (1985 (2) L.L.N. 738). In spite of all these if it were to be held that irrespective of the said statutory stipulations the Inspector of Labour is not entitled to pass positive orders conferring permanent status, such powers vested with him under the provisions would only result in futility. It is true that under S.5 read with rule 6(4) of the Act, the Inspector of Labour can also direct in the event of any defects in the maintenance of registers to rectify such defects and give appropriate directions to that effect. But, the same did not mean that, that is the only power vested in the Inspector of Labour and nothing more. The well known canon of construction is that no provision in a statute can be held to be redundant and therefore, when under S.5 of the Act specific powers have been provided to the effect that the Inspector of Labour can enter at all reasonable times into any industrial establishments, make necessary examinations of the records and record necessary evidence of such persons as he may deem necessary for carrying out the purposes of the Act and when the said provisions read along with rule 6(4) which specifically provides that such exercise of powers provided under S.5 can be made while dealing with a representation and by passing a positive order conferring permanent status, it will have to be held that the Inspector of Labour would be fully competent to issue an order conferring permanent status to the workmen based on the evidence available before it based on the enquiry held by him, if it was brought out that such a benefit should necessarily be conferred on the concerned workmen. It can only be said that to hold otherwise would only defeat the whole purpose of the enactment, the object of which was that wherever workmen are being kept under temporary rolls, thereby denied of various statutory as well as non-statutory benefits, which are extended to the permanent workers and wages are paid on consolidated basis far below the occupational wages without the benefit of dearness alloowance, which is paid to the permanent employees, to defeat such deprivation and ensure that their real status is affirmed. While the exercise of powers vested with the Inspector under the provisions of the Act is summary in nature, the one under the provisions of the 1947 Act may be an elaborate one. Nevertheless the same does not mean that by exercising the power under the provisions of the Act, the Inspector of Labour would be trepassing into the adjudication process contemplated under the provisions of the 1947 Act. c. In the decision in S. Vijayalakshmi Vs. Tamil Nadu Water Supply and Drainage Board (represented by its Managing Director, Chennai [2005 (3) L.L.N. 706 at page 707], this Court has held as follows:- A bare perusal of the S.3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, casts an obligation on the employer to confer permanent status on an employee who has completed 480 days work in course of two years. During the life time of the husband of the petitioner, no such permanent status was actually conferred by any order of the management. It is true that jurisdiction has been conferred on the Inspector to conduct enquiry if necessary to find out whether an employee has completed 480 days or not. However, merely because no such enquiry had been conducted by the Inspector, the petitioner's husband cannot be denied the benefits of the Act. In view of the mandatory nature of the provision, it shall be taken that an employee who had completed 480 days in a period of two years was permanent. d. In the decision in Hindustan Petroleum Corporation, Ltd. (represented by its Chairman cum Managing Director), Mumbai and another Vs. Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, Chennai and another [2008 (4) L.L.N. at Page 254], this Court has held as under: Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days of service within a period of two calendar years then, such workmen getting permanent sttus cannot be questioned by any management. Such conferment of permanent status to the workmen cannot be labelled as violation of Arts. 14 and 16 of the Constitution. The effect of a local enactment conferring permanent status to workmen was never considered by any Court so far. e. The Leaned Counsel for the Petitioner cites the order dated 04.04.2003 in W.P.Nos.20911 to 20916 of 1998 passed by this Court [(CDJ) 2003 MHC at page 753 in paragraph 12], wherein it is held that The portion of the proceedings of the 2nd respondent in all these writ petitions holding that the workman is entitled for conferment of permanent status only from the date on which his proceedings are communicated is ordered to be deleted and this Court holds that each one of the workman for whose benefit the writ petition has been filed shall be deemed to have been conferred with permanent status from the date on which each employee completed 480 days of continuous service within a period of 25 calendar months. f. Also, he relies on the order dated 27.07.2007 in W.A.No. 411 of 1998 and 2410 of 1999 passed by the Division Bench of this Court between The Tamil Nadu Handicrafts Development Corporation Limited, rep. by its Secretary, No.759, Anna Salai, Madras 2 and another Vs. The Inspector of Factories, Range No.II, Madurai 2 and two others, wherein in paragraphs 7 and 8, it is laid down as follows:- 7. It is not in dispute that 23+1, i.e., all the 24 workmen have completed more than 480 days of service in 24 calendar months. Details have been shown in the impugned order dated 4th July, 1996 and 9th April, 1997 and the list attached thereto. In this background, the appellant cannot deny the benefit to which such workmen are entitled under the law. 8. The other ground taken by the appellant is that no proper opportunity was given by the first respondent to the appellant to defend its case, but such submission cannot be accepted in view of the communication between the parties and the counter affidavit filed by the frirst respondent. According to the first respondent, the appellant's factory is coming under the purview of the Factories Act and Rules and is an establishment as per Section 2(3) (a) of the Permanent Status Act, 1981. The first respondent has specifically stated that opportunity was given to the appellant to explain itself and inspection was made in the premises of the appellant on 30th May, 1996 and the appellant was called for an enquiry on 10th June, 1996 at 10.00 a.m and enquiry under Rule 6 (4) was conducted on 10th June, 1996 at 11.00 a.m. in their presence. After going through the records, including form 25-B issued by the appellant, the respondent, the respondent could gather the date of entry of the workman in the service and also verified attendance particulars of 1993, 1994 and 1995 as were available in the office of the appellant. Letter No.E/1755/96 dated 3rd June, 1996, shows that the Manager of the appellant's Corporation at Madurai was asked to produce the attendance register of the year 1993, 1994 and 1995 at 3.00 p.m. on 7th June, 1996. In respect of other 23 persons, a letter was issued to the Manager of the Corporation at Madurai vide No.NE/872/97 dated 17th March, 1997. The date was subsequently postponed to 7th April, 1997 at 11.00 a.m. And the appellant having been informed, its Superintendent, Pumpuhar Brass products, production Unit, Madurai, by his letter Na.Ka.No.178/Mahi/97 dated 5th April, 1997 requested to furnish letter dated 6th Feb., 1997, as was submitted by the General Secretary of the Workers' Union. Thus it will be evident that proper opportunity was given to the appellant and after detailed enquiry, the orders were passed by the first respondent, Inspector, who is the competent authority. g. The Learned Counsel for the Petitioner cites the Division Bench Judgment of this Court dated 16.03.2006 in W.A.No. 845 of 2000 between M/s Hindustan Photo Films Vs. The Deputy Chief Inspector of Factories & Others [(CDJ) 2006 MHC at page 935], wherein paragraph 6, it is observed and held as follows: 6. Even before us, the learned counsel for the appellant, by drawing our attention to the order of the Division Bench dated 2.9.2003 made in W.A.Nos.1117 to 1132 of 1998, submitted that the management has no objection to pass a similar order as made therein. However, the learned counsel appearing for the respondent -workmen has brought to our notice that the workmen in that case were trainees and ousted from service at the instance of the management. In such circumstances, the direction issued in respect of those persons cannot be applied to the respondents herein, who worked continuously for several years and after proper enquiry, their services were recognised by the competent authority and orders issued. In the light of the distinction and in view of the categorical finding by the authority, which was upheld by the learned single judge, we are unable to accept the only argument advanced by the learned counsel for the appellant. h. He also relies on the Division Bench Judgment of this Court dated 23.02.2007 in W.A.No. 1186 of 2006 between The Lakshmi Mills Company Ltd., Palladam Branch, Coimbatore Vs. The Deputy Chief Inspector of Factories, Tiruppur & Another (CDJ) 2007 MHC 1303, wherein at paragraph 6, it is held that :- 6. Regarding the second contention, it is clearly found that the appellant did not seriously dispute the length of service put in by the workmen, before the authority and the authority had sufficient evidence to come to the conclusion that the workmen had completed 480 days of service in 24 calender months. Once that factum is proved, Section 3 of the Tamil Nadu Act 42 of 1981 makes the permanency automatic without any scope for further enquiry. Besides this, the power vested on the first respondent is of summary nature and he is not required to conduct any elaborate enquiry. In the present case, the length of service of the workmen is not disputed. Therefore, there is no further enquiry contemplated in the Act. 23. We deem it appropriate to point out that a workman, who had rendered in a continuous service of 480 days in a period of 24 calendar months, should be conferred with the permanent status in an establishment. 24. It is to be pointed out that every employer is supposed to maintain in Tamil language or in English a register of workmen in Form 1 prescribed under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status To Workmen) Act, 1981 and also prepare and exhibit the list of workmen with sufficient details for perusal by the workmen. It may not be lost sight of that, such list ought to be sent to the Inspector within a fortnight from the close of each half-year with a declaration that it has been exhibited in the establishment for perusal by the workmen. The employer should send an half- yearly return in Form-2 at the end of each half-year. 25. If an employee who comes to know that his name has not been entered in the list or finds that the entries have not been made properly /correctly or if he finds that though entries regarding his service have been made correctly but he has not attested the entries in the register maintained by the employer, may make a representation to the Inspector concerned, who after examining the representation or after making enquiries, may issue suitable directions to the employer for the rectification of the register of workman or for the issue of orders conferring permanent status to the workman concerned. 26. Section 5 of the Act speaks of the Powers and Duties of Inspectors. Section 6 of the Act refers to Penalties . Rule 3 of The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Rules, 1981 deals with the powers of Inspector in addition to the powers conferred by virtue of Section 5 of the Act. Rule 4 contemplates that the employer of an industrial establishment shall furnish any information that an Inspector may require for the purpose of satisfying himself as to whether any provision of the Act or the rules made thereunder has been complied with or whether any order of Inspector has been duly carried out etc., Rule 6 (1) deals with the Maintenance of Registers by Employers. As per Rule 6, every employer of an industrial establishment shall maintain a registrar of workman in Form 1 and shall produce the register whenever it is required by the Inspector having jurisdiction over the industrial establishment etc., 27. Section 2(4) of The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 defines workman as follows: (4) workman means any person employed in any industrial establishment to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied (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 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. (Explanation.-- Badli workman means a workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment) 28. The essential test is to determine the existence of right in the matter to supervise and control a person as regards the work to be turned out by him. As a matter of fact, the definition ' Establishment ' is taken from the Tamilnadu Shops and Establishments Act, 1947 and the same has found a place in Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, and as such, even if no order of regularisation is passed, a person is deemed to have been regularised as per Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 after completing 480 days of work in a period of 24 calender months. Even in a case, a person / employee has worked for more than 240 days in a year and if the Employer / Management fails to produce proper documentary evidence like voucher, record, etc., an adverse inference can be drawn to the effect that the plea projected by the said person is a trustworthy and a fruitful one. 29. As far as the present case is concerned, it is an admitted fact that the Petitioner s husband Raju was a contract labour with the Tamilnadu Electricity Board from 01.05.1999 and that he was absorbed as per B.P.(FB).22 of the Tamil nadu Electricity Board dated 14.05.1999 as Helper. Unfortunately, he committed suicide on 23.11.2003. His death certificate was issued by the Mettur Municipality on 12.12.2003. Even the certificate dated 01.06.1999 issued by Assistant Executive Engineer, Civil Maintenance, Power Houses, Mettur dam, to the petitioner s husband S. Raju showed that he worked as a contract labour in Civil Section, Power Houses, Mettur Dam under Various Contractors, for the period from 30.09.1998 to 30.04.1999 without break in service. 30. A reading of the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 unerringly points out that it is the duty of an employer to confer permanent status on a workman/employee who had completed 480 days of work in a period of 24 calender months. 31. As per B.P.No.14 (Adm.Br) dated 05.08.2005, the Petitioner s husband name S. Raju could not find a place in the final list of 61 contract labourers of Erode Generation Circle, who were absorbed as Helpers. The Respondents/Electricity Board contend that at that time the petitioner s husband name S.Raju S/o. Sundaram was in Sl.No.154 and therefore, he had to wait for his turn. 32. The seniority list of 163 contract labourers was prepared as per the Judgment passed in W.A.No.2647 of 2002 filed by the Tamilnadu Electricity Board. Therefore, earlier B.P.(FB) No.3 dated 29.01.2001 was issued to absorb 126 contract labourers of Erode Generation Circle as Helpers. 33. Admittedly, because of the tragic demise of the Petitioner s husband on 23.11.2003, his name could not find a place, in the final list of 61 contract labourers of Erode Generation Circle who were absorbed as Helpers as per B.P.no.14 (Adm.Br) dated 05.08.2005. Had he been alive, then certainly, the Respondents would have showered him with the benefit of conferment of permanent status. During the life time of the Petitioner s husband, he was not conferred with permanent status, which was not disputed on both sides. 34. On going through the ingredients of Section 3(1) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, we are of the considered view that the Petitioner s husband, completed 480 days of work in a period of 24 calender months (during his lifetime), and would become automatically a permanent employee under the Respondents/Tamilnadu Electricity Board, because of the simple fact that the Section mandates the Respondents to confer permanent status on the Petitioner s husband S.Raju and the conferment of permanent status to the Petitioner s husband S. Raju / Employee / Workman would not depend upon his employer on his own or on a direction given by the competent authority under the Act. 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. 37. Also, on the basis of Equity, Fair play, Good Conscience and even a matter of prudence, we direct the Respondents/Tamil nadu Electricity Board Authorities to issue appropriate proceedings in making the petitioner's deceased husband Raju as a permanent employee of the Board and to pay the petitioner family pension, family benefit and other terminal benefits including Gratuity as per Rules and regulations from time to time in force. The Respondents are further directed to consider and dispose of the representation of the Petitioner s dated 08.12.2003 and 08.01.2004 wherein she had prayed for Compassionate Appointment being provided to her daughter Valarmathi as per Rules and in accordance with law within a period of four weeks from the date of receipt of copy this order, (if not already considered and disposed of.) 38. The Respondents are directed to pay the Petitioner s family pension and other terminal benefits including gratuity etc., due to be paid to the petitioner s deceased husband within a period of eight weeks from the date of receipt of copy of this order. As such, the writ petition is allowed in above terms. No costs. (E.D.R.J.) (M.V.J.) 03. 08.2012 Index :Yes/No Internet :Yes/No sms To 1. The Chief Engineer (Personnel), Tamilnadu Electricity Board, 800, Anna Salai, Chennai 600 002. 2. Superintending Engineer, Erode Hydro Generation Circle, Tamilnadu Electricity Board, Erode. ELIPE DHARMA RAO,J. AND M.VENUGOPAL,J. sms PRE DELIVERY ORDER IN W.P.No.5980 of 2004