IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28-08-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.4944 of 2001 G.Sethuraman .. Petitioner. Versus 1.The Presiding Officer, Central Government Industrial Tribunal and Labour Court, Sasthri Bhavan, Chennai. 2. The Airport Director, Airport Authority of India, Chennai Airport, Meenambakkam, Chennai. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the concerned records from the 1st respondent, quash the order of the 1st respondent, date 22.2.2001, in I.A.No.15 of 2001, in I.D.No.56 of 2000, as illegal, arbitrary and contrary to the provisions of Industrial Disputes Act and Rules and consequently direct the 1st respondent to issue summons to the persons viz. Mr.L.Baskaran, Mr.K.Mohan and Mr.G.Dhanasekaran. For Petitioner : Mr.Balan Haridas For Respondents : Mr.R.Parthiban (R2) O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the second respondent.
2. The petitioner has stated that he had joined the service of the second respondent, on 20.2.1988, as a “Hand Receipt Employee”. Initially he was asked to do the work of a sweeper/attender. He was also discharging the duty of a chowkidar and he was also doing the work of taking duplicate copies, ammonia prints, xerox, etc in the new International Passenger Terminal and in the construction of remote parking bays and heavy shed in the cargo complex. Thus, the petitioner had gained sufficient work experience and as such he has been carrying on his duties to the satisfaction of his superiors. However, the second respondent has been keeping the petitioner only as a temporary employee, in spite of his continuous employment, since 20.2.88, without any break. The second respondent has been extracting all the works from the petitioner which were to be performed by temporary employees. While so, the second respondent had orally terminated the petitioner from service, on 31.1.98. In spite of the representations made by the petitioner to the second respondent, he had not received any reply from the second respondent or from any other authority. Since the petitioner had worked for more than 480 days, continuously, within a period of 24 calendar months, he is deemed to be a permanent employee, under Section 3 of the Tamilnadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981.
3. It has been further stated that though the termination of the petitioner amounts to retrenchment, the second respondent had not complied with the requirements of Section 25-F of the Industrial Disputes Act, 1947. Therefore, the termination of the service of the petitioner from 31.1.98, by the second respondent is illegal and void. In such circumstances, the petitioner had raised an industrial Dispute regarding his non-employment before the Assistant Labour Commissioner, (Central), Chennai. The conciliation talks had ended in failure and the matter had been referred by the Central Government to the first respondent Tribunal, for adjudication. The first respondent had taken the dispute on its file as I.D.No.56 of 2000. The petitioner had filed a claim statement before the first respondent and had also filed a reply statement to the counter filed by the second respondent management.
4. During the initial stages of the proceedings, the petitioner had filed an application in I.A.No.15 of 2001, before the first respondent Tribunal, to summon three co-employees, who were working at that time when the petitioner was in employment under the second respondent. Since the examination of the three co-employees, namely, L.Bhaskaran, K.Mohan and G.Dhanasekaran, as witnesses, would be crucial for deciding the dispute, the petitioner had filed I.A.No.15 of 2001, requesting the first respondent Tribunal to summon them as witnesses. However, the first respondent Tribunal had dismissed the application filed by the petitioner on the ground that both in his claim and in the re-joinder statement, he had not mentioned the names of the workers and that even in his evidence the petitioner has not mentioned their names. It had been further stated that for the first time, the petitioner had made such a plea to summon the three witnesses.
5. No counter affidavit has been filed on behalf of the respondents.
6. The learned counsel appearing on behalf of the petitioner had stated that the co-employees were sought to be summoned by the petitioner in the application filed by him, in I.A.No.15 of 2001, only for ascertaining the nature of the employment of the petitioner with the second respondent. Since all the three employees are employed under the second respondent, it would be proper for the first respondent Tribunal to issue necessary summons to them for their presence and for examining them as witnesses before the dispute is finally decided. No prejudice would be caused to the second respondent by summoning the three witnesses, named by the petitioner. Even though the petitioner had not mentioned about the co-workers, either in the claim statement or in the re-joinder statement, or while giving evidence, it cannot be said that the petitioner is not entitled to request the first respondent Tribunal to issue necessary summons to the three witnesses, as prayed for by him in I.A.No.15 of 2001.
7. The main contention of the learned counsel appearing on behalf of the second respondent authority is that the three witnesses named by the petitioner in his application, in I.A.No.15 of 2001 in I.D.No.56 of 2000, on the file of the first respondent Tribunal are the employees employed under the second respondent. Therefore, the petitioner has no right to request the first respondent Tribunal to issue summons to them, to be examined as witnesses on behalf of the petitioner.
8. The learned counsel appearing on behalf of the second respondent had also stated that the petitioner cannot challenge the impugned order of the first respondent Tribunal, dated 22.2.2001, made in I.A.No.15 of 2001, since it is a decision on a preliminary issue, as held by a Division Bench of this Court in Agro Cargo Transport, Ltd. and E.Murugan and another (1995-1-L.L.N.138).
9. He had also relied on a decision of the High Court of Kerala reported in Mary Francis and Kesavan (1992 II LLJ 1247) to show that there are no special reasons for the petitioner to summon the three witnesses named by him. Only if there are such special reasons it would be open to the petitioner to summon the witnesses, as held by the High Court of Kerala in the above decision.
10. The learned counsel had also relied on a decision of the Kerala High Court, reported in Syed Mohammed V. Aziz (1990 (2) KLT 952), wherein it has been held that a defendant cannot compel another defendant to appear before the Court as his witness. The practice of citing the opposite party as a witness has been condemned as an unapproved form of evidence. If such a practice is allowed, it would result in cross-examination by his own counsel. To illustrate, if the second defendant is examined by the first defendant’s counsel the former gets the opportunity to cross-examine his own client. This is an unwholesome practice. Indeed it will be a strange spectacle.
11. The learned counsel for the petitioner had stated that the decision of a Division Bench of this Court in Agro Cargo Transport, Ltd. and E.Murugan and another (1995-1-L.L.N.138), relied on by the learned counsel for the respondent would not apply to the present case. The request of the petitioner in I.A.No.15 of 2001, filed before the first respondent Tribunal, goes to the root of the matter and the prejudice that would be caused to the petitioner, by denying him the privilege of examining the three witnesses, named by him, would be grave in nature and the damage caused at the initial stage of the hearing of the matter by the first respondent Tribunal cannot be rectified at a later stage. The Division Bench of this Court while referring to the preliminary issues to be decided by the Labour Court, had in mind such issues which could be agitated at a later stage of the proceedings. However, in the present case, the issue of summoning of witnesses has to be decided at the initial stage itself unlike certain other issues which could be taken up for decision along with the main issues involved in the dispute.
12. The learned counsel for the petitioner had also submitted that the decision of the Kerala High Court referred to by the learned counsel for the second respondent relate to the summoning of the respondents witnesses by the petitioner and therefore, they are not relevant to the facts and circumstances of the present case. When the petitioner is seeking to summon common witnesses, they cannot be termed as the witnesses of the second respondent authority.
13. The learned counsel for the petitioner had also placed an order of this Court, dated 17.10.2001, made in W.P.No.2 of 2001, wherein it has been held as follows:
“8. On a perusal of the affidavit filed in support of the Interlocutory Application as well as the claim statement, when it was very much explicit, the documents referred to therein and the persons for whom the petitioner wanted to examine had every nexus to the case pleaded by the petitioner, it was incumbent upon the first respondent to have ordered the application for reopening the evidence and summoning of the concerned persons to be examined on the side of the petitioner. The failure of the first respondent in doing so, would cause failure of justice in the facts and circumstances of the case and therefore, while setting aside the order impugned in the writ petition, the Interlocutory Application preferred by the petitioner will stand allowed and the first respondent is directed to reopen the evidence of the petitioner and issue necessary summons for the examination of the witnesses sought to be examined by the petitioner and also permit the petitioner to mark the documents and also afford due opportunity to the second respondent, while permitting the petitioner for letting in additional evidence.”
14. In view of the submissions made by the learned counsels appearing on behalf of the petitioner as well as the second respondent, and on a perusal of the records available, this Court is of the view that it would be appropriate for this Court to set aside the impugned order, dated 22.02.2001, issued by the first respondent Tribunal in I.A.No.15 of 2001 in I.D.No.56 of 2000.
15. The petitioner has shown sufficient reasons for this Court to come to the conclusion that the first respondent Tribunal had erroneously placed reliance on two decisions of the Kerala High Court, reported in Narayana Pillai Vs. Kalliyani Ammal (1963 KLT 537) and Syed Mohammed V. Aziz (1990 (2) KLT 952), in arriving at its conclusion to dismiss the I.A.No.15 of 2001 filed by the petitioner. Both the said decisions of the Kerala High Court are in respect of the requests made by the respective applicants to summon witnesses of the respondents. Whereas, in the present case, the petitioner was seeking to summon three of his co-employees, who had worked with him under the second respondent authority in order to prove that the petitioner was in continuous service at the relevant point of time and in order prove the nature of work that the petitioner was doing during his employment under the second respondent authority.
16. Sufficient reasons have not been shown by the first respondent Tribunal to dismiss the application filed by the petitioner, in I.A.No.15 of 2001. The second respondent has not been in a position to show that the petitioner had filed the interim application, in I.A.No.15 of 2001, only to delay the process of adjudication of an industrial dispute raised by him, in I.D.No.56 of 2000, before the first respondent Tribunal. Further, nothing has been shown on behalf of the second respondent to support its claim that substantial prejudice would be caused to the second respondent authority if the application of the petitioner, for summoning the witnesses, is allowed by the first respondent Tribunal. Therefore, it is not proper for the second respondent authority to resist the application of the petitioner requesting the first respondent Tribunal to summon the three witnesses named by him. Therefore, this Court is of the view that the ends of justice would be better served if a direction is issued to the first respondent Tribunal to summon the three witnesses named in I.A.No.15 of 2001 and to permit the petitioner to examine them in accordance with law. Hence, the impugned order, dated 22.2.2001, made by the first respondent Tribunal, is set aside. The first respondent Tribunal is directed to issue summons to the witnesses named by the petitioner, in I.A.No.15 of 2001, by following the procedures established by law before proceeding with the adjudication of the industrial dispute in I.D.No.56 of 2000, pending on its file. Accordingly, the writ petition stands allowed. No costs.
1.The Presiding Officer,
Central Government Industrial
Tribunal and Labour Court,
Sasthri Bhavan, Chennai.
2. The Airport Director,
Airport Authority of India,