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Judgment
M. Venugopal, J.—The petitioner/Mills has filed this Writ of certiorari praying for issuance of a direction from this Court, to call for the
records of the first respondent in R.O.C. No. A1/11732/2001, dated October 21, 2002 and quash the same.
The second respondent/Employee has filed a petition in R.O.C. No. A1/11732/2001 before the first respondent/Deputy Chief Inspector of
Factories, Tirunelveli, claiming permanent status in the petitioner''s Mills. The first respondent/authority has allowed this petition filed by the second
respondent/employee on October 21, 2002 and has further directed that the second respondent/employee should be made permanent by the
petitioner/Mills with effect from December 3, 1985 in the petitioner''s Mills and added further has also issued a direction to the petitioner''s Mills as
per the Rule 4 of the Tamilnadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, to comply with the order
immediately and to report compliance of the same to him within J seven days from the date of receipt of a copy of this order.
The learned Senior Counsel for the petitioner/Mills submits that first and foremost, the first respondent/authority has not taken into consideration
of the fact that as per Section 36(A) of the Industrial Disputes Act, the application seeking for certain clarifications in regard to the Award passed
by the Labour Court, Tirunelveli in I.D. No. 420/1992, dated September 1, 1994, is pending before the State Government and in the meanwhile,
the second respondent/employee has projected a petition in R.O.C. No. A1/11732/2001 before the first respondent, claiming permanent status in
the mills and erroneously, the first respondent/authority has relied on the Award passed by the Labour Court in I.D. No. 420/1992, dated
September 1, 1994 and resultantly, allowed the petition filed by the Employee and the second respondent/ employee cannot take a stand that the
Award passed in I.D. No. 420/1992 conferred in the permanent status when the petitioner/Mills denied the same and moreover, the first
respondent/authority was misguided to the effect that the second respondent/employee should be given protection under the Tamilnadu Industrial
Establishment (Conferment of Permanent Status to Workmen) Act, 1981 and only on the basis of documentary or oral evidence such as Pay Slips,
Attendance register or other relevant documents of the Mills, the first respondent/authority should have based his conclusion while passing the
impugned orders in R.O.C. No. A1/11732/2001, dated October 21, 2002 and unfortunately in the instant case on hand, such a procedure was
not resorted to by the first respondent/authority and therefore prays for allowing this writ petition in the interest of Justice.
It is to be noted that in I.D. No. 420/1992 filed by the second respondent/employee an Award dated September 1, 1994 has been passed by
the Labour Court, Tirunelveli to the effect that the second respondent/employee is entitled to the relief of reinstatement with back wages with
continuity of service and other attendant benefits. Significantly, in paragraph 10 of its Award, the Labour Court has among other things made the
following observation;
...Therefore, the petitioner is entitled to seek the protection of Section 3 of the Tamilnadu Industrial Establishments (Conferment of Permanent
Status to Workmen) Act, 1981. This petitioner has been denied job as we have seen (sic) already. Before the denial of job, admittedly no enquiry
was conducted. In these circumstances, the petitioner is entitled not only for reinstatement but also with back wages with continuity of service and
other attendant benefits. Hence, the points are answered in favour of the petitioners and against the respondent.
Before the first respondent/competent authority, the second respondent/employee has. enclosed an Annexure wherein for the period from
March 1984 to February 1986 he has given details of the number of days during which he has worked and also he has given reference to the
seven days National Festival Holidays, during 1985, during 2 days local holidays and leave with wages for 12 days and aggregating in all the total
number of days during which he has worked comes to around 518 days. He has also pointed out that the date of completion of 480, days is
December 2, 1985 and the date on which'' he is to be made permanent is also on December 3, 1985.
At this stage, a perusal of the order dated October 21, 2002 passed by the first'' respondent/authority shows that the authority has come to the
resultant conclusion that the second respondent/employee has worked for more than 480 days in a continuous period of 24 calendar months and
completed 480 days on-December 2, 1985.
It is apt for this Court to point out that Section 36(A) of the Industrial Disputes Act speaks of the power of the appropriate; Government to
remove difficulties viz., in'' difficult or doubt which arise as to the interpretation of any provision of a Award or Settlement, then it can refer the
issue to such Labour Court, Tribunal or National Tribunal as it deems fit and proper is based on the facts and circumstances of the case. Even
though a plea is taken on behalf of the petitioner/Mills that clarifications as per the Section 36(A) of the Industrial Disputes Act is pending before
the. Government in regard to the interpretation of Award passed by the Labour Court, Tirunelveli in I.D. No. 420/1992, dated September 1,
1994, this Court is of the considered view that there is no embargo on the part of the first respondent to proceed further in the matter in regard to
the petition filed by the first respondent/employee praying for an issuance of an order conferring him the permanent status and in fact the first
respondent has rightly proceeded with the hearing of the petition in R.O.C. No. A1/11732/2001.
It is to be borne in mind that a workman/employee who has to be in a continuous service of 480 days in 24 calendar months must be conferred
with the permanent status in an establishment as per the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act,
1981. In fact, a power is conferred on the State Government to apply the provision of this Act, by means of an appropriate notification to any
industrial establishment employee such a number of workmen less than 20 as may be (specified in the notification. Also, the Inspectors appointed
in the Act do have necessary powers to require any employer to supply or send any return or true copy of any document or information pertaining
to the provisions of the Act. Furthermore, every employer is also required to maintain in Tamil or in English a register of workman in Form-I
prescribed under the rules and also compiled and exhibit the list of workmen with relevant) details for perusal of the workman. Also, such list will
have to be sent by the Inspector within a fortnight from each of year with a declaration, it has been exhibited in the examination of the perusal of the
workman and the mills who sent half yearly return in Form-II at the end of each of the year.
As far as the present case is concerned, it is the specific case of the second respondent/employee that he has worked for total number of 518
days in the petitioner/Mills and therefore, he should be conferred with the permanent status of a workman in the petitioner''s Mills. Though in the
Annexure to the petition filed before the first respondent authority, the second respondent/employee has given the details of a number of days he
has worked month-war of respective years like 1984 and 1985, the same has not been repudiated by the Management/Mills. However, on perusal
of the files produced by the first respondent/authority, it is clear that the written arguments have been filed on the side of the petitioner''s Mills
before the authority wherein at paragraph 9 it is mentioned as follows;
Section 3 of the permanent status Act provides for the authority under the said Act to confer the permanent status to workman as provided u/s 5
after making such examination of the records, taking evidence.
In law, the initial onus of establishing a fact by a party cannot be shifted, though the burden of proving facts and circumstances lying within the
knowledge of a party rests on that party. Also, the facts especially within the knowledge of any person means such knowledge must be in the
nature of something strange. The term ''Especially'' denotes facts that are pre-eminently within one''s knowledge as opined by this Court. Suffice it,
for this Court to point out that when a fact to be proved (whether affirmative or negative) is peculiarly within the knowledge of the party, it must be
proved by the party. In the present case on hand, -the second respondent/employee has categorically stated that he has worked in all for 518 days
as mentioned by him in the Annexure to the petition filed before the first respondent/authority and therefore only after i rebutting the same, the
burden shifts on to the side of the petitioner. Merely contending that the first respondent/authority should have taken evidence of the parties
concerned in regard to the number of days worked or the authority i should have summoned relevant records from the mills to satisfy itself as to the
correctness or otherwise to the claim made by the employee are not accepted by this Court because of the simple fact that this Court is of the
considered 4 view that even otherwise of summoning the records or examining the parties by permitting to adduce evidence the authority can go
into the issue of conferment of permanent status to the second respondent/employee based on the details provided by him in the Annexure to the
petition which has not been repudiated/ displaced by the petitioner/Mills in any way to the satisfaction of this Court.
Continuing further, admittedly the petitioner/Mills has not been exempted by the Government from the provisions of the Factories Act, 1948.
When the second respondent/employee has categorically mentioned in his petition and that too in Annexure that he worked for 518 days from
March 1984 to February 1986 and all the more when he has satisfied the authority that he has worked in the petitioner''s Mills from March 1984
to December 1985 and rendered a continuous service of 480 days, then he is entitled to seek the remedy under the Act and accordingly, he has
filed a petition before the first respondent/authority and rightly the first respondent/authority has come to an inevitable conclusion that the second
respondent/ employee is entitled to get the benefits of conferment status as per the provisions of the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workmen) Act, 1981 and looking at in from any angle, this writ petition is devoid of merits and the same fails.
In the result, this writ petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed by the first
respondent/authority in R.O.C. No. A1/11732/2001, dated October 21, 2002 is affirmed by this Court for the reasons assigned in this writ
petition. Consequently, the connected W.P.M.P. No. 43617/2003 is closed.