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The Factories Act, 1948
Section 4 in The Factories Act, 1948
The Information Technology Act, 2000
The Freedom of Information Act, 2002
Section 12 in The Factories Act, 1948

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Madras High Court
Hindustan Unilever Employees ... vs The Inspector Of Factories on 8 June, 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.06.2010

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.NO.20876 of 2009

and

M.P.NO.1 OF 2009

Hindustan Unilever Employees Union,

Regd. No.1534/RTU/08,

represented by its General Secretary,

R.T.Shakar,

No.306, V.O.C. Street,

Sudhana Nagar Extn-II,

Nainarmandabam,

Pondicherry-605 004. .. Petitioner

Vs.

1.The Inspector of Factories,

Office of the Chief Inspector of Factories,

Vazuthavur Road,

Gandhi Nagar,

Pondicherry-605 009.

2.The Management of Hindustan

Unilever Ltd.,

Detergents Factory,

Off.NH-45A, Vadamangalam,

Pondicherry-605 102. .. Respondents

This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent Inspector of Factories to consider the petitioner's complaint, dated 20.2.2009 and to take necessary action against the 2nd respondent for removing "Optional lock system" in the computerised attendance system maintained in the second respondent factory gate and consequently direct the second respondent to maintain all statutory records in the manual form.

For Petitioner : Mr.P.R.Thiruneelakandan

For Respondents : Ms.Mala, AGP (Pondy) for R1

Mr.S.Ravindran

for M/s.T.S.Gopalan & Co. for R2

- - - -

ORDER

The petitioner is the trade union with registration No.1534/RTU/08 functioning in the second respondent factory. The petitioner union has come forward to file the present writ petition seeking for a direction to the first respondent Inspector of Factories to consider the complaint, dated 20.2.2009 sent by the union and to take action against the second respondent for removing "Optional Lock System" in the computerised attendance system maintained in the second respondent factory and for a consequential direction to the second respondent to keep all statutory records and registers prescribed under the provisions of the Factories Act, 1948 and Rules made thereunder.

2.When the matter came up on 28.10.2009, Ms.Mala, the learned Additional Government Pleader (Puducherry) took notice. Subsequently, on behalf of the first respondent, a counter affidavit, dated 12.2.2009 was filed. Thereafter, the second respondent entered appearance and they have also filed counter affidavit, dated 26.1.2010. Pending the writ petition, no interim relief was granted in favour of the petitioner union.

3.In their complaint, dated 20.2.2009, apart from several other issues, it was stated that for computerising the Time Attendance System (TAS), permission will have to be required from the Inspector of Factories and pursuant to the said permission, the computerised system was introduced from the year 2003-2004. In the software utilised by the second respondent, whenever the workmen registered their names, it was programmed in such way that registration will be directly rejected. Utilising the said programme and with a view to victimise the workers, the registration was locked. Therefore, the petitioner union stated that such procedure was illegal and they should discontinue the TAS computerised system and that the original card system should be introduced. The Software used by the second respondent should be completely investigated and the Optional Lock System which is for their whims and fancies must be removed. After sending representation, the petitioner union also invoked the provisions of the Right to Information Act (RTI Act) and sought for certain information from the first respondent. Pursuant to the query made by the union, the first respondent informed them that their complaint is under process. They have not sought for any reply from the second respondent.

4.In the affidavit filed in support of the writ petition, it was further contended that when earlier the petitioner union complained, at the intervention of the first respondent, the Optional Lock System was removed from the computerised TAS. It was further claimed that as per the provisions of the Factories Act, the second respondent ought to maintain Muster Rolls of the workmen, Over Time Register, Register of National and Festival Holidays, Registrar of Compensatory holidays, Register of Adult workers and Register of Leave with wage register in the manual form. But, however, the second respondent has not maintained those registers and that they are using computerised software. It was also claimed that any complaint made by the worker will have to be enquired by the Inspector of Factories and therefore, since there has been no such enquiry, the present writ petition has been filed.

5.The counsel for the petitioner union also listed out various contraventions with regard to the maintenance of registers under the Puducherry Factory Rules by the second respondent management.

6.In respect to these allegations, the first respondent had stated that in terms of Section 4 of the Information Technology Act, 2000, the Chief Inspector of Factories and Boilers, Puducherry had given permission to the second respondent to maintain the following registers in a soft copy by letter dated 23.9.2000. i)Muster Roll - Form No.23

ii)OVer Time Register  Form No.10,

iii)Register of National and Festival Holidays - Form No.6

iv)Register of Compensatory Holidays - Form No.9

v)Register of adult workers - Form No.12

vi)Register of leave with wages - Form No.15

7.Since there is provision under the Information Technology Act, 2000 to maintain records in electronic format, such permission was granted with a direction that they should take out print out of all soft copies and should be preserved as required under the Puducherry Factories Rules, 1964 and must be presented to the first respondent during their inspection. It was also stated that the other disputes between the petitioner and the second respondent are covered by the Industrial Disputes Act, 1947 and that the petitioner union must seek remedy under the said Act.

8.In the counter affidavit filed by the second respondent, it was stated that in the second respondent factory at Vadamangalam, Puducherry, there are about 520 workmen. During the year 2002, a long term settlement under Section 12(3) of the ID Act was reached between the three unions. By that time next settlement was due during May, 2007, all the three unions got merged and came to be known as the Hindustan Lever WELS Union. In the earlier settlement, dated 12.12.2002, the workmen had agreed for the introduction of TAS system or access control system or any such system as may be laid down by the management for recording the incoming and outgoing attendant on duty hours. Till the year 2002, attendance of the workers were done by manually with the registers prescribed under the Factories Act. The mechanised attendance system was introduced in the year 2002 after installing a machine known as Bartronics to the computer. After introduction of machine, the workmen were required to punch their attendance and from the attendance card, they will carry out to the attendance register, which will become the basis for preparing wage rolls.

9.It was further stated that in the year 2005, the second respondent added a software to meet the new requirement. By this method, every workman was given electronic ID card and he can swipe it in the machine for recording his attendance. The new software included recording of information like late coming and also canteen choice. The workman has to press a button for his preference in the matter of availing canteen facility. The machine will also record automatically the late attendance. Whenever the workman is absent from the work continuously without leave application or prior intimation, the unauthorised absenteeism will come to the notice of the Human Resource Department. Only after the entire records of the workman are analysed, there will be cancellation or corrective action will be taken. The software available can also make the machine to lock the card of any employee, who absented himself without applying leave or intimation for specified number of days. So that, the said workman cannot automatically record his attendance. The system introduced will also display a small message intimating the workman to meet the Human Resource Department. The workman who absented himself will have to report the HRD and after explaining his absence, will be allowed to enter the factory for performing his duties and this will not cause any prejudice.

10.It was further stated that the management also obtained permission to computerise the registers. It was also stated that between the period from 2005 and December, 2009, only on one occasion, a workman was asked to produce his sickness certificate when he had come for work after being absence for more than 20 days. The workmen had accepted the new procedure. Only some of the workers, who were not happy with the merger of three union, have revived the present union in the year 2008. It was also stated that the introduction of TAS had not changed the service condition of the workmen and the necessity to issue notice under Section 9A of the ID Act did not arise. Even when the the first respondent visited the factory, the system was shown to him and it was explained to his satisfaction.

11.In the light of the above, it has to be seen whether the grievance projected by the petitioner can be countenanced by this court.

12.It must be noted that in the settlement signed under Section 12(3), dated 12.12.2002, the workmen have agreed for the introduction of TAS system of attendance. Therefore, such introduction does not invite introduction of Section 9A of the ID Act. Further, maintenance of registers in the soft copy was also permitted by the Joint Chief Inspector of Factories, vide communication, dated 23.9.2004 and a copy of which has been produced in the typed set. The said permission is also not under challenge. Though the counsel for the petitioner contended that under the Act, there is no power to grant exemption from these provisions and even otherwise, for the Joint Chief Inspector of Factories, there is no power to grant exemption, but as noted already, the petitioner wanted only the consideration of his representation. Even after being informed that there was a valid exemption under the Act, the petitioner has not chosen to question the same.

13.As contended by the respondents, the union have agreed for the introduction of TAS system of attendance by a settlement. Therefore, it is too late for the petitioner to question the same. Even otherwise, under Rule 104, the Chief Inspector of Factories can grant exemption in respect of any of the provisions contained under Rules 97 to 102 in respect of any factories subject to such conditions. These rules relate to the right of workman to have leave with wages. Apart from this, Section 4 of the Information Technologies Act, 2000 grants legal recognition of electronic records. Section 4 reads as follows: "4.Legal recognition of electronic records.- Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is- (a)rendered or made available in an electronic form; and

(b)accessible so as to be usable for a subsequent reference."

14.Therefore, it cannot be said that the action of the second respondent is illegal and without the authority of law. Even otherwise, under Section 111A of the Factories Act, 1948, every workman employed in the factory is entitled to obtain from the occupier the information relating to workers' health and safety at work. As per Section 111A(iii), he can also represent to the Inspector directly or through his representative the matter of inadequate provision for protection of his health and safety in the factory. Therefore, in case of violation of any of the provisions of the Factories Act or Rules made thereunder, it was always open to the workmen or through their representative to complain to the appropriate authority and seek redressal.

15.In the light of the stand taken by the respondents, it is unnecessary to entertain the writ petition with the limited prayer sought for by the petitioner union. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.

vvk

To

1.The Inspector of Factories,

Office of the Chief Inspector of Factories,

Vazuthavur Road,

Gandhi Nagar,

Pondicherry-605 009.

2.The Management of Hindustan

Unilever Ltd.,

Detergents Factory,

Off.NH-45A, Vadamangalam,

Pondicherry 605 102