JUDGMENT
Y. Venkatachalam, J.
1. Invoking Article 226 of the Constitution of India, the petitioner herein, has filed the present writ petition seeking for a writ of certiorari to call for the records connected with the award of the first respondent, dated March 11, 1993, in I.D. No. 56 of 1992 and to quash the same.
2. In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this Court to allow the writ petition as prayed for. Per contra, on behalf of the second respondent, a counter-affidavit has been filed rebutting all the material allegations levelled against them one after the other and ultimately they have requested this Court to dismiss the writ petition for want of merits.
3. Heard the arguments advanced by the learned counsel appearing for the respective parties. I have perused the contents of the affidavit and the counter-affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by the learned counsel appearing for the respective parties during the course of their arguments.
4. In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to allow this writ petition or not.
5. The brief facts of the case of the petitioner as seen from the affidavit are as follows: The petitioner herein is a Government of Tamil Nadu undertaking and engaged in the business of operating the buses to meet the needs of the transporting public. One of its depots is at Vellore from where about 100 buses are being operated. The petitioner apart from employing its regular employees, employs certain persons on a casual basis and such casual appointments are made depending upon the exigencies of work and are usually of a very short duration and as and when the exigencies cease to exist such casual appointments are terminated. Therefore there is no permanent master and servant relationship as between the petitioner and such casual appointees. The petitioner is under no obligation to offer work at any regularity to the casual labourers nor do they in turn oblige to report for work. According to the petitioner herein the second respondent herein was one such casual employee in the petitioner-Corporation, that the second respondent had been engaged on a casual basis intermittently between January 1986 and June 1986 and that the said second respondent was engaged purely depending upon the exigencies of work and that too only until June 1986. It was under such circumstances that the second respondent herein filed a petition under Section 2-A of the Industrial Disputes Act before the Government Conciliation Officer alleging termination of his services and claiming reinstatement with back wages. The contention of the second respondent therein was that he was a workman of the petitioner-Corporation and that he had suffered certain injuries on account of an accident on June 11, 1986 and alleging he had been in employment for more than 240 days, on a monthly salary of Rs. 190. The second respondent challenged his termination. The petitioner-Corporation filed its counter in the conciliation bringing to the notice of the Conciliation Officer the above facts. The conciliation ended in failure following which the second respondent herein raised an industrial dispute before the second Additional Labour Court, Madras numbered as ID. No. 186 of 1991. The same was subsequently transferred to Vellore and renumbered as I.D. No. 56 of 1992. The respondent also entered appearance and filed his counter and contested the matter. After detailed enquiry and elaborate arguments, the first respondent Labour Court passed the impugned order holding the second respondent to be a workman of the petitioner-Corporation and directing the reinstatement of the second respondent with back wages and continuity of services on the ground that his termination was illegal. Aggrieved by the said award, the present writ petition has been filed.
6. Challenging the impugned award, it is contended by the petitioner herein that the award of the Labour Court suffers from errors apparent on the face of the record, is illegal and liable to be quashed, that the first respondent committed a grave error in relying upon the order of the Commissioner under the Workmen’s Compensation Act in the application for compensation preferred by the second respondent for the purpose of arriving at a conclusion that the second respondent had put in a continuous service of more than 240 days and therefore the alleged termination not being in compliance of Section 25-F of the Industrial Disputes Act was illegal and this erroneous approach has resulted in a casual employee being vested with the right of reinstatement. The impugned award is therefore vitiated and deserves to be set aside. It is their case that the first respondent ought to have seen that the findings of the Commissioner under the Workmen’s Compensation Act is not binding upon the first respondent. Labour Court. At any rate, the first respondent ought to have seen that the context of the proceedings before the Commissioner under the Workmen’s Compensation Act and the proceedings impugned were totally different. The findings of the Commissioner under the Workmen’s Compensation Act had absolutely no relevance in so far as the. proceedings deciding an industrial dispute under Section 2-A of the Industrial Disputes Act pending before the Labour Court is concerned. Further according to the petitioner the first respondent ought to have seen that the definition of “workman” under the Workmen’s Compensation Act was wider in the sense that it includes casuals also who were employed for the purposes of the employer’s trade or business. The findings of the Commissioner was only under the said context, which at any rate, has been challenged before this Court by way of a CMA No. 1119 of 1990 and where the order of the Commissioner has also been stayed. It is also argued on behalf of the petitioner that the first respondent ought to have seen that inasmuch as the issue in question before it was concerned, the very fact that the second respondent was only a casual employee, would itself not vest in him any right of reinstatement. Even assuming he was eligible for any relief, the utmost that the second respondent could claim was some sort of a compensation in tandem with the services he has put in as a casual employee, and he certainly was not entitled to reinstatement. Inter alia it is also contended by the petitioner that the first respondent committed a grave error in basing his award on very many assumptions instead of proceeding to decide the issues in question on the materials before him, and also that the first respondent erred in laying undue emphasis on the non-production of the documents called for by the second respondent herein and consequently holding that inasmuch as the petitioner had failed to produce documents an adverse inference is drawn in favour of the second respondent. Therefore it is the case that in this regard, the first respondent ought to have seen that inasmuch as the facts remain that the second respondent was employed only on a casual basis for a very short duration and intermittently between January 1986 and June 1986, the petitioner could not have any records in which the name of the second respondent could be found. Further more the first respondent failed to take into consideration a very vital fact that if at all the second respondent was indeed a workman of the petitioner-corporation, then, the mere production of the appointment order would itself have clinched the issue in favour of the second respondent. Thus it is the grievance of the petitioner herein that on the contrary, the Labour Court seems to have taken of any tangent and have argued the case of the second respondent on a very sympathetic basis. It is also their case that the first respondent further erred by unduly
relying upon the evidence of certain persons before the Commissioner under the Workmen’s Compensation Act in the W.C. case filed by the second respondent to hold that the petitioner worked in Bus No. TML 3199 on June 11, 1986 and had suffered injury, and such adoption of the evidence in a proceeding which is not binding on the Labour Court has caused injustice to the petitioner and hence the award deserves to be set aside.
7. Per contra, in the counter-affidavit filed by the respondent, justifying the impugned award it is contended by them that the Labour Court found that he had worked continuously and that the accident took place in the course of his employment and that his termination was contrary to the provisions of the Industrial Disputes Act and inasmuch as the writ-petitioner-Corporation had violated Section 25-F the Industrial Disputes Act he was directed to be reinstated in service together with back wages and continuity of service. It is his case that there is no substance in the writ petition and it is only an attempt to delay and defeat his claim and that a public sector management like the writ-petitioner-Corporation should not be allowed to fritter away the public money by indulging in such frivolous litigation. Hence the writ petition is liable to be dismissed.
8. Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter claims made by the rival parties the following are the admitted facts in this case. The second respondent herein worked as a mechanic in the petitioner-Corporation at their Krishna Nagar depot and he had worked for more than 18 months continuously. While he was deputed to repair a vehicle he suffered a grevious injury and he suffered a fracture of both ulna and radius. After treatment he reported for duty on July 12, 1986 but he was not allowed to join duty and since he was denied employment he raised an industrial dispute and ultimately it ended in the award passed in I.D. No. 56 of 1992, dated March 11, 1993, directing his reinstatement with back wages and continuity of service. Aggrieved by the said award the present writ petition has been filed contending that the second respondent herein had been engaged only on a casual basis intermittently between January 1986 and June 1986 and that there existed no permanent master and servant relationship as between the petitioner and the second respondent. According to them the second respondent was engaged purely depending upon the exigencies of work and that too only until June, 1986. Thus in this case it is very clear that the main dispute between the parties is as to whether the employee in question is casual employee as contended by the management or a permanent worker as contended by the employee in question. That can be decided only after hearing the evidence both oral and documentary adduced by both the parties. But it is significant to note that in this case admittedly no witness on the side of the management has been examined and also no documents have been marked on their behalf. That being so, it is not possible to come to a definite conclusion in this regard without considering the evidence and the documents produced on the side of the management. Therefore in this case it is contended by the petitioner-management that the first respondent committed a grave error in basing his award on very many assumptions instead of proceeding to decide the issues in question on the material before him and that the Labour Court erred in laying undue emphasis on the non-production of the documents called for by the second respondent herein and consequently holding that inasmuch as the petitioner had failed to produce documents an adverse inference is drawn in favour of the second respondent. According to the petitioner the first respondent failed to take into consideration a very vital fact that if at all the second respondent was indeed a workman of the petitioner-Corporation, then, the mere production of the appointment order would itself have clinched the issue in favour of the second respondent and to the contrary, the Labour Court seems to have taken off at a tangent and have argued the case of the second respondent on a very sympathetic basis. It is also their grievance that the first respondent also erred by unduly relying upon the evidence of certain persons before the proceedings under the Workmen’s Compensation Act. They also contended that thus in the case on hand the resultant award in the present writ petition has caused considerable damage, irrepressible in any way, considering that the award is thrust upon the petitioner, the impugned award deserves to be set aside. In the above facts and circumstances of the case, I see every force in the above contentions of the petitioner- management in challenging the impugned award. It is very difficult for the Labour Court to decide whether the employee in question is a casual employee or a permanent employee without considering the evidence and documents on both the sides. But in this case the same thing has happened and as rightly contended by the petitioner-management the award is thrust upon the petitioner without going into the documents or witnesses on the side of the management when it is the categoric stand of the management that the employee in question is only a casual employee there had been no master and servant relationship between them. Therefore in the above circumstances I am of the clear view that the matter has to be remanded to the Labour Court for fresh disposal after giving opportunity to the management to let in oral and documentary evidence in support of their case.
9. Therefore, for all the aforesaid reasons said in the facts and circumstances of the case and also in view of my above discussions with regard to the various aspects of the case I am of the clear view that the petitioner- Corporation herein has clearly made out a case in their favour that the impugned award suffers from error apparent on the face of the record and that therefore it has to be quashed. But at the same time I am also of the view that the matter has to be remanded to the Labour Court for fresh disposal with a direction to give opportunity to the Corporation to let in oral evidence together with documentary evidence in support of their case and then to decide the matter.
10. In the result, the impugned award is hereby quashed and the matter is remanded to the Labour Court for fresh disposal in accordance with law and after giving opportunity to the management to let in oral and documentary evidence in support of their case. The writ petition is ordered accordingly. No costs.