IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:12-4-2010 CORAM: THE HONBLE MR.JUSTICE P.JYOTHIMANI W.P.No.9927 of 2005 G.Daniel Petitioner Vs. The Management of MOH Leathers 12 Longs Garden Road Pudupet, Chennai 600 002. Respondent Writ petition filed under Article 226 of the Constitution of India for the issue of writ of Certiorarified Mandamus as stated therein. For petitioner: Mr. S.Ayyathurai For respondent: Mr. S.Ravindran For Mr.K.R.Hariharan ----- ORDER
The writ petition is directed against the award of the Labour Court dated 5.11.2004 passed in I.D.No.2119 of 1992. As per the award, the Labour Court, while dismissing the petition filed by the petitioner/workman under section 2A(2) of the Industrial Disputes Act,1947 seeking reinstatement, held that the non-employment of the petitioner is justified and the petitioner is not entitled for any relief.
2. The petitioner is stated to have entered in the service of the respondent management on 1.2.1986 as a Tailor and the management has engaged nearly 700 workers. It is stated that the petitioner has attempted to start a trade Union, which has resulted in the termination of the petitioner by the management on 28.7.1992. It is stated that the management was involved in some untoward incident and police complaint was given.
a) It is stated that the petitioner was paid a sum of Rs.4500/- per month as salary and the termination was oral and no show-cause notice was given for retrenchment and no provisions of the Industrial Disputes Act were followed. In those circumstances, the petitioner filed an application raising industrial dispute stating that the management had taken a stand that the petitioner was only an employee on contract basis.
b) It is the case of the petitioner that he has filed I.A.No.162 of 1996 for production of several registers and in the order dated 28.10.1996, the Labour Court directed to produce the documents, however, the management has not produced the documents. Subsequently, the Labour Court set the respondent/management ex parte on 21.4.1997, on the strength of which the petitioner filed C.P.No.1210 of 1997 and there also, the management was set ex parte and order was passed on 30.11.1998.
c) The petitioner then filed an application under section 33(1) of the Industrial Disputes Act before the Government of Tamil Nadu for the recovery of amount and the Government in turn issued G.O.(D)No.334 dated 29.04.1999, for recovery of the amount through Collector from the Management. It is, as against the recovery order, the management filed W.P.No.15276 of 1999 and in the said writ petition, by order dated 21.12.1999, this Court remanded the matter back to the Labour Court in I.D.No.2119 of 1992 with a direction to the respondent/management to deposit an amount of Rs.1 lakh, permitting the petitioner to withdraw the interest that accrued.
d) It is stated that based on the remand order passed by this Court, in the Labour Court, evidence were recorded by both side and on behalf of the petitioner and management, Exs.W-1 to W-5 and Exs.M.1 to M.5 were marked respectively. Since there was no Presiding Officer in the Second Additional Labour Court, the matter was transferred to the Principal Labour Court and the impugned award came to be passed by the Labour Court on 5.11.2004, which is now assailed by the petitioner on various grounds including that the Labour Court has not appreciated the evidence properly and it ought to have rejected the management witnesses, that there is absolutely nothing to show that the petitioner was an independent contractor, that the Labour Court has failed to consider the provident fund records marked as Ex.W1 showing that the management accepted the petitioner as a workman, that the management has also failed to consider the legal position regarding the piece-rate workers under the Industrial Disputes Act, that the petitioner has worked continuously for more than five years in the management and that the same has not been taken note of by the Labour Court, apart form raising many other grounds.
3. It is the case of the respondent-management in the counter affidavit that the petitioner was employed in the respondent company which is a leather garments firm, only as a contractor to do piece-rate job work on contract basis and received payments and that there was no relationship of employer-employee in the sense that the petitioner was not required to report for duty regularly and there was no prescribed working hours. It is stated that the petitioner was offered various assistants and additional hands for executing certain types of job works on temporary basis. It is denied that the petitioner was entered in the services of the respondent on 01.02.1986 as Tailor and that he was terminated from the service on 28.7.1992 by the respondent management. It is also denied that the petitioner was paid salary at the rate of Rs.4500/- per month.
a) It is stated that the petitioner has not even produced a single document to substantiate his claim that he was working as a Tailor in the company from 1.02.1986 and he is a worker under the provisions of the Industrial Disputes Act and on the other hand, the Labour Court has considered the evidence given on the side of the management and the documents produced by the management by which it is established that the petitioner was working as a piece-rate contract worker under the respondent.
b) It was, only after a thorough enquiry, after considering the evidence on record, the Labour Court has come to the correct conclusion and dismissed the application filed by the petitioner. It is stated that the partnership firm in the name of M/s.MOH Leathers stood dissolved in August, 1991 and its liabilities were taken over by M/s.MOH Leathers Private Limited as evident by documents marked through M.W.1 in his chief-examination.
c) It is stated that the company which had taken over the partnership firm that is, M/s.MOH Leathers was also closed as early as 1997 due to heavy recession in the leather industries. It is also stated that even otherwise the industrial dispute raised by the petitioner cannot stand as it is not maintainable.
4. It is the contention of Mr.S.Ayyadurai, learned counsel appearing for the petitioner that the petitioner had entered into service as a Tailor under the respondent on 1.2.1986 and was orally terminated on 28.7.1992 without following the provisions of the Industrial Disputes Act. It is also his contention that even assuming that the petitioner was a piece-rate employee, it does not mean that the petitioner has lost his right as workman. It is his submission that under Ex.W-1 provident fund number was assigned to the petitioner, which shows the relationship of employee-employer between the petitioner and the respondent. It is his submission that Exs.W-1 and W-3 should have been construed by the Labour Court in proper perspective. He would rely upon the judgment in Silver Jubilee Tailoring House and others vs. Chief Inspector of Shops and Establishments and another [(1973) II LLJ 495].
5. On the other hand, it is the contention of Mr.S.Ravindran, learned counsel for the respondent that there was no employer-employee relationship and the petitioner was doing only the contract service in the place of the management which had provided all amenities and therefore, as piece-rate worker, the petitioner is not entitled for any benefit and for that, he would rely upon the judgment in Silver Jubilee Tailoring House and others vs. Chief Inspector of Shops and Establishments and another [(1973) II LLJ 495] apart from the judgment in Workmen of Nilgiri Co.operative Market Society Ltd., vs. State of Tamil Nadu and others [(2004) 3 SCC 514].
a) It is his submission that there was no control over the petitioner by the management in the sense that there was no time for the work and there were no other benefits like, leave, etc. It is submitted that it is a case of detachment and the employer cannot compel the worker to do the work as per its wish even though the petitioner as a piece-rate worker has to conform to the standard of the product to be maintained since it is the respondent management which is to market the same. It is therefore his contention that there was no control or supervision over the petitioners work.
b) It is submitted that even otherwise the petitioner has worked only for five years and as per the direction of the Court an amount of Rs.1 lakh is lying in the deposit of the Labour Court. It is submitted that Ex.W2 has no legal sanction since it does not contain any authentic information and even as per the evidence of M.W.1, the said Ex.W-2 relates to one Dasaradhan and not the petitioner and therefore, in the absence of any evidence to show that the petitioner is a workman under the respondent, the award of the Labour Court is perfectly in order.
6. Considering the contentions raised by the respective counsel, this Court called for the original records from the Labour Court and perused the same.
7. In the petition filed by the petitioner before the Labour Court under section 2A(2) of the Industrial Disputes Act, it was the case of the petitioner that he entered into the service in the respondent management as a tailor on 1.2.1986 and he was terminated from service orally on and from 28.7.1992 and he was paid the salary at the rate of Rs.4000/- to Rs.4500/- per month. It is also stated in the petition that the production given by the petitioner would be entered in the production register and the amount would be calculated accordingly. In the counter affidavit filed before the Labour Court it is the specific case of the respondent management that the petitioner was only working on contract basis and he was not a regular worker and he was not required to work regularly and there was no prescribed working hours for him and there was no holidays and other facilities for him. According to the respondent, the petitioner had never come to the job regularly and he was a self-employed person. It is denied by the respondent that the petitioner entered into service on 1.2.1986 and terminated on 28.7.1992. It is also denied by the respondent that an ill-will has been developed against the petitioner. Before the Labour Court, the petitioner was examined as WW.1 while the management witness was examined MW.1 and five documents were marked on the side of the workman as Exs.W1 to W5 and five documents were marked on the side of the management as Exs.M1 to M5.
8. As contended by the learned counsel for the petitioner, it is true that the finding of the Labour Court proceeds as if the petitioner has not spoken anything about the industrial dispute before the Labour Court which may not be correct. However, that itself may not be sufficient for the purpose of deciding that there has been non-application of mind. It is true that the Labour Court in I.A.No.162 of 1996 in I.D.No.2119 of 1992 in the order dated 28.10.1996, which is marked as Ex.W3, held that on the facts of the said case, it is proper to direct the management to produce the records for the period between 1.2.1986 and 28.7.1992 that is, the production register, salary distribution register and other registers relating to the contract labourers and piece-rate workers. A reference to the contents of Ex.W-3 as seen in the records shows the order passed by the Labour Court in I.A.No.162 of 1996 as follows:
gpur;rid:- ,e;j kDtpy; cs;s vjph;kDjhuh;. kDjhuh; nfhhpa[s;s Mtz’;fs; j’;fsplk; ,Ue;jhy; M$h; bra;tjhf Twpa[s;shh;/ me;j Mtz’;fs; ,y;iybad;W Twtpy;iy/ vdnt. kDjhuh; nfhhpa[s;s 1/2/1986 Kjy; 28/7/1992 tiuapyhd cw;gj;jp gjpntL. rk;gsg;gl;Lthlh gjpntL kw;Wk; xg;ge;j bjhHpyhsp my;yJ ,ju bjhHpyhspf;F gP!; nul; mog;gilapy; rk;gsk; tH’;Fk; gjpntL Mfpatw;iw M$h; bra;a cj;jutpLtJ ,e;j kD r’;fj’;fisg; bghWj;j kl;oy; rhpahdJ vd;W gpur;ridf;F Kot[f;F tUfpnwd;/
9. It is relevant to point out that in the order the management has admitted to produce the records if they are available and it is also true that the said records have not been produced by the management before the Labour Court. The fact remains that the petitioner who has come forward to file a petition under section 2A(2) of the Industrial Disputes Act with a specific plea that he was appointed on 1.2.1986 as tailor under the respondent, has not produced any such letter of appointment. The management has in fact produced the E.S.I. contribution and Provident Fund Contribution registers marked as Exs.M3 and M4. Ex.M3 is a register relating to E.S.I. contribution and a reference to the names of various employees contained therein shows that the petitioners name does not find a place. A reference to Ex.M4 which is the Provident Fund Contribution Register for the period between 1987 and 1992 and its original which reached this Court from the Labour Court, does not contain the name of the petitioner, and the Labour Court has also recorded such a finding after verification of Exs.W3 and W4.
10. The petitioner has heavily relied upon Ex.W2 which is stated to be the provident fund card and it is the case of the petitioner that as it is seen in the said card Ex.W2, his provident fund account number is TN-22201, while the registration number is 179. But a reference to the said number which is quoted in Ex.W2 along with the list found in the provident fund contribution register maintained by the respondent for the period from October, 1987 to September, 1992 shows that not only the name of the petitioner has not mentioned anywhere in the register, but the account No.179 is also found to be belonging to one Dasaradhan, as it is seen in page No.52 of Ex.M4. The same is also evident from page No.54 of Ex.M4. But, it is seen at page No.84 of Ex.W4 that the name of the petitioner G.Daniel is found stated with registration No.22201/179 in respect of contribution of Rs.300/- for the month of March, 1988, however, against the name of the petitioner with registration No.22201/179 there was no contribution for the months of October and November, 1989 and there has also been no contribution for the subsequent months.
11. It is true that the petitioner has used different words for termination. In one place, he has called it as termination and in another place, he has called it as retrenchment, which, in my considered view, will not stand in the way of the petitioner, if the petitioner is otherwise entitled to, since, for the reason of technically not quoting the proper word, the right, if any, that would be conferred on the workman cannot be denied to him. It remains the fact, as I have stated above and it is also found by the Labour Court that the petitioner being a workman who has come forward with a case to the Labour Court stating that he was appointed on a particular date and terminated subsequently, has not chosen to produce any records to show such appointment by the respondent management.
12. For the purpose of establishing the relationship of employer-employee, the Supreme Court has explained the relevant factors to be proved in Workmen on Nilgiri Co.operative Market Society Ltd., vs. State of Tamil Nadu [(2004) 3 SCC 514] in the following words:
37. The control test and the organization test, therefore, are not the only factors which can be said to be decisive. With a view to elicit the answer, the court is required to consider several factors which would have a bearing on the result:(a) who is appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject.
38. With a view to find out reasonable solution in a problematic case of this nature, what is needed is an integrated approach meaning thereby integration of the relevant tests wherefor it may be necessary to examine as to whether the workmen concerned was fully integrated into the employers concern meaning thereby independent of the concern although attached therewith to some extent.
13. While dealing with the burden of proof regarding the relationship of employer-employee, it was held in that case that the burden is on the person who set up the plea of existence of the relationship and the relevant portion of the judgment is as follows:
47. It is well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.
48. In N.C.John v. Secy.Thodupuzha Taluk Shop and Commercial Establishment Workers Union (1973 Lab IC 398, the Kerala High Court held (LAB IC p.402, para 9)
The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship.
49. In Swapan Das Gupta v. First Labour Court of W.B.(1976 Lab IC 202 (Cal)) it has been held (LAB IC para 10)
Where a person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person.
50. The question whether the relationship between the parties is one of employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse.
14. By quoting an earlier judgment of the Supreme Court reported in Puri Urban Co.operative Bank v. Madhusudan Sahu [(1992) 3 SCC 323] regarding the said relationship and the nature or extent of control which is requisite to establish the relationship of employer and employee, it was held as follows:
90. In Puri Urban Co.op.Bank v. Madhusudan Sahu (1992) 3 SCC 323 this Court observed(SCC p.325 para 5)
It stands established that industrial law revolves on the axis of master and servant relationship and by a catena of precedents it stands established that the prima facie test of relationship of master and servant is the existence of the right in the master to supervise and control the work done by the servant (the measure of supervision and control apart) not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.
99. For the purpose of earning livelihood, a person has to involve himself into certain kinds of activities wherefor, he must subject himself to some sort of discipline or control, which is even otherwise implicit.
15. The Supreme Court in Silver Jubilee Tailoring House and others vs. Chief Inspector of Shops and Establishments and another[(1973) II LLJ 495], while explaining the following factors about the nature of control, viz.,
6. The following facts appear from the finding of the learned single Judge. All the workers are paid on piece-rate basis. The workers generally attend the shops every day if there is work. The rate of wages paid to the workers is not uniform. The rate depends upon the skill of the worker and the nature of the work. When cloth is given for stitching to a worker after it has been cut, the worker is told how he should stitch it. If he does not stitch it according to the instruction, the employer rejects the work and he generally asks the worker to restitch the same. When the work is not done by a worker according to the instructions, generally no further work would be given to him. If a worker does not want to go for work to the shop on a day, he does not make any application for leave, nor is there any obligation on his part to inform the employer that he will not attend for work on that day. If there is no work the employee is free to leave the shop before the shop closes. Almost all the workers work in the shop. Some workers are allowed to take cloth for stitching to their homes on certain days. But this is done always with the permission of the proprietor of the shop. The machines installed in the shop belong to the proprietor of the shop and the premises and the shop in which the work is carried on also belong to him,
after referring to Lord Justice Sommerwell in Cassidy v. Ministry of Health (1951 (1) All ER 574) wherein it was held that in many cases of contract of service, the master may not be controlling the manner in which the work has to be done, like a captain of a ship, has held as follows:
24. It is in its application to skilled and particularly professional work that control test in its traditional form has really broken down. It has been said that in interpreting control as meaning the power to direct how the servant should do his work, the Court has been applying a concept suited to a past age.
This distinction (viz., between telling a servant what to do and telling him how to do it) was based upon the social conditions of an earlier age; it assumed that the employer of labour was able to direct and instruct the labourer as to the technical methods he should use in performing his work. In a mainly Agricultural Society and even in the earlier stages of the Industrial Revolution the master could be expected to be superior to the servant in the knowledge, skill and experience which had to be brought to bear upon the choice and handling of the tools. The control test was well suited to govern, relationships like those between a farmer and an agricultural labourer, (prior to aricultural mechanization) a craftsman and a journeyman, a householder and a doemestic servant, and even a factory owner and an unskilled hand. It reflects a state of society in which the ownership of the means of production coincided with the profession of technical knowledge and skill in which that knowledge and skill was largely acquired by being handed down from one generation to the next by oral tradition and not by being systematically imparted in institutions of learning from universities down to technical schools. The control test postulates a combination of managerial and technical functions in the persons of the employer, i.e., what to modern eyes appears as an imperfect division of labour. See Prof.Kahn Freund in (1951) 14 Modern Law Review at p.505.
It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test.
25. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that no magic formula can be propounded which factors should in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighting up the factors which point in one direction and balancing them against those pointing in the opposite direction: See P.S.Atiyah, Vicarious Liability in the Law of Torts, pp.37,38.
16. The Labour Court found that the petitioner was a piece-rate worker. On a perusal of the evidence of the management, it is also clear that the petitioner was engaged not regularly by the management and there was no control by the respondent as is exercisable by an employer except the control relating to the manner in which the quality of the product is to be maintained. In such circumstances, I do not see any reason to interfere with the finding of the Labour Court. Further, on the fact that the name of the petitioner is found in the provident fund register at least for few months in the year 1988 and also on the basis of the evidence of M.W.1 that as a piece-rate worker, the petitioner was engaged, in my considered view, no useful purpose would be served in remanding the matter once again to the Labour Court to decide on this issue after a passage of time of nearly 18 years.
17. It is also not in dispute that as per the earlier direction, the management has deposited a sum of Rs.1 lakh, and taking note of the fact that there was a change in the management of the respondent company that is, the partnership firm was taken over by a private limited company in the year 1991 and the said company also subsequently came to be closed in the year 1997 as evident from M.W.1, and in order to put an end to the entire issue, I am of the view that the amount of Rs.1 lakh, which was earlier directed to be deposited by the management in the Labour Court, in respect of which the petitioner was directed to receive the accrued interest, should be directed to be paid to the petitioner in full and final settlement.
19. In such view of the matter, while holding that this Court does not think it necessary to interfere with the award of the Labour Court and at the same time, taking note of the fact that there is some discrepancies in Ex.M4, the writ petition stands dismissed, however, with a direction that the amount of Rs.1 lakh which is lying to the credit of the above said I.D. viz., I.D.No.2119 of 1992 on the file of the Principal Labour Court, Chennai, shall be paid to the petitioner/workman with interest if any, accrued as on date in full and final settlement of the entire dispute. No costs.
Index: Yes/No
Internet: Yes/No
Kh. 12-4-2010
P.JYOTHIMANI,J.
kh
To
The Prl. Labour Court
Chennai.
P.D.Order in
W.P.No.9927 of 2005
12-4-2010