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TMI Blog2024 (6) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... g some monetary gain. Commercial in the most rudimentary sense means buying or selling of goods in exchange of money - this act shall not apply to those workmen who are engaged in the construction of buildings and the like or other construction work be it structural, mechanical, or electrical. Therefore, those establishments and their workmen shall be exempt, who are engaged exclusively, in the work of construction. Both requirements, of the establishment being covered under the definition of industrial establishment as provided and that of the employee having uninterruptedly continued in service for 480 days or more for 24 months, having been met there are no hesitation in holding that the Act would apply to the parties to the present dispute. Whether the High Court on remand, could have ignored the order of the Inspector of Labour and suggested that the employees raise an industrial dispute questioning their non-employment? - HELD THAT:- Since the High Court concluded that the Act would apply, there was no reason for it to disturb the finding of the Inspector of Labour and, therefore, it ought to have simply ordered that the order of Inspector of Labour which concluded that the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 Hereinafter the Act . Such representations being unsuccessful, two Writ Petitions bearing Nos.17263 and 17147 of 1998 were preferred before the learned Single Judge of the High Court. 7. The learned Single Judge Annexure P1, pg 61 , vide judgment and order dated 21st July, 2000 passed the following directions: 19 . 1. The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu Act 46 of 1981) is applicable to the second respondent corporation. 2. The Inspector having jurisdiction over the second respondent is directed to inspect and verify the records of the second respondent corporation and pass appropriated orders under Sec.3 of the said Act with regard to the claim made by the members of the petitioner Union; 3. The Inspector is also directed to consider the claim made by the petitioner Union regarding employment on Saturdays to the members of the petitioner Union; 4. The Inspector is further directed to determine the above referred questions within three months from the date of a copy of this order after affording an opportunity of being heard to both pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. We are sure that the High Court will hear the matters afresh and decide the same in accordance with law. 5. Interim order dated 29th March, 2010 granted by this Court shall continue till the High Court modifies the same after hearing the concerned parties THE IMPUGNED JUDGMENT At this juncture, it is worth clarifying that the dismissal of the Writ Appeal Nos.1430 1431 of 2000 was not challenged before this Court and what was challenged was the dismissal of W.P.No.17133/2001 and the directions in W.P.No.15241/2009, which took on Civil Appeal Nos.6567 and 6568 of 2012, wherein the Court remanded the matter. 12. Pursuant to the above order of remand, The High Court in its judgment, recorded its agreement with the judgment of the learned Single Judge, reproduced supra. It was observed that the learned Single Judge had extensively examined the constitution of the management of the Corporation, the nature of activities conducted by it, et cetera and then concluded that the Act would apply on the ground that it was an industrial establishment under Section 2(3)(e) of the Act, and that they (the learned Division Bench) concur with the same. 13. It was further observed that since no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashtra State Road Transport Corporation v. Casteribe Rajya Parivahan Karmachari Sanghathana (2009) 8 SCC 556 and particularly, paragraphs 32 to 36 thereof. (b) Relying on U.P. Power Corporation Limited Anr. v. Bijli Mazdoor Sangh Ors. (2007) 5 SCC 755 , it is submitted that the industrial adjudicator, although can vary terms of employment, but cannot do anything violative of Article 14 and if the case at hand is covered by the concept of regularization, the same Rule applies. (c) Relying on ONGC Limited v. Petroleum Coal Labour Union Ors. (2015) 6 SCC 494 and Ajay Pal Singh v. Haryana Warehousing Corporation (2015) 6 SCC 321 , it is urged that the powers of Industrial and Labour Courts were not in consideration in Uma Devi (supra). (d) A tabular chart has been provided in respect of the 12 appellants in the Appeal arising out of SLP(C)No.2649 of 2020 and it is submitted that since the Inspector of Labour vide its order has declared the eligibility of the said workmen for grant of permanent status, there falls no requirement to raise an industrial dispute questioning the non-employment. Such of those respondents who have reached the age of superannuation would be entitled to compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act XX of 1946) or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the course of this employment; and (iv) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks. [Explanation II. - For the purpose of this section, Law' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act.] ( Emphasis supplied ) 17. The core issue here is the application of the Act to the Corporation qua the employees and their Union. In order to examine the same, what is to be considered is as to whether the Corporation can be termed as an industrial establishment as per the provisions reproduced supra and whether the members of the Union would qualify as workmen and therefore would be eligible for permanent status under Section 3 of the Act. 18. The High Court considered this question in line with Section 2(3)(e), as above, i.e., the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished that the activities undertaken by it are for making some monetary gain. Commercial in the most rudimentary sense means buying or selling of goods in exchange of money. As the above reproduced, uncontroverted paragraph (also recorded by the High Court) establishes, the commercial element was not absent. 22. Further, it was submitted that the activities conducted by the Corporation did not fall under those mentioned under Section 2(3) of the 1947 Act. This submission too, is difficult to accept. The construction work, which the Corporation, by its own admission, carries out, is also for non-governmental bodies such as firms, companies, and individuals. It would be apposite to refer to the observations of the High Court in this regard, in particular, paragraphs 37 and 38 of the impugned decision, which, for ease of reference are reproduced below : 37. TNMSC Management is a company registered under the Indian Companies Act, 1956 which iv wholly owned by the Government of Tamil Nadu. The objects of the company as seen from the memorandvm of articles of association are as follows : (1) To buy or otherwise acquire all kinds and varieties of generic and patent medicines, drugs, mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose establishments and their workmen shall be exempt, who are engaged exclusively, in the work of construction. The objectives of the Corporation, which have been reproduced Page 137 of the paperbook in SLP (c) 2649 of 2020 in the affidavit of the Union before the High Court, state:- x x x iii) To undertake the designing and construction of hospitals and other buildings for the Government, or any other person including local authorities, corporations, societies, trusts, companies firms and individuals. 24. This, however, in our view would not allow the Corporation to wash its hands off the responsibilities or obligations under the Act, since the construction to be undertaken by the Corporation, is only one of the many activities to be undertaken by it. To take all the workers out of the purview of the Act, especially, when the said workers, like the members of the respondent union, were not the ones undertaking construction is unwarranted. 25. It was further argued that many of the persons directed to be granted permanent employment by the order of the Inspector of Labour have found profitable employment elsewhere, and as such the SLP on their behalf should be dismissed. We cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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