BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06/06/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
Writ Petition (MD).No.7991 of 2005
and
W.P.M.P.No.8638 of 2005
The Management,
Tamil Nadu Civil Supply Corporation Ltd.,
Madurai Region,
Kurivikaran Salai,
Madurai. .. Petitioner
Vs.
1.The Presiding Officer,
Labour Court, Madurai.
2.Songammal .. Respondents
Prayer
Writ petition is filed under Article 226 of the Constitution of India
to issue a writ of Certiorari calling for the entire records relating to the
award, dated 19.11.2004 in I.D.No.255/1994 on the file of the first respondent
herein and quash the same.
!For Petitioner ...Mr.K.Jayaraman
^For Respondents...Mr.R.Saravanan for R2
:ORDER
The second respondent was employed as a Sweeper in the godown of the
petitioner corporation from 1982. According to the second respondent, she was
orally terminated from 07.07.1992 without any reason. She took up the matter of
non-employment before the first respondent in I.D.No.255 of 1994, since the
conciliatory efforts failed. The petitioner took up the plea before the Labour
Court that the second respondent was not their employee and she was a contract
labour. On the other hand, the plea of the second respondent was that she was
directly employed by the writ petitioner. On the side of the second respondent,
three witnesses were examined and four documents were marked as Ex.W1 to Ex.W4.
On the side of the writ petitioner one witness was examined and three documents
were marked as Ex.M1 to Ex.M3. The labour Court held that the writ petitioner
was the employer and the second respondent was directly employed by the writ
petitioner in the godown. Based on such a factual finding, the first respondent,
the Labour Court, passed an Award dated 19.11.2004 in I.D.No.225 of 1994 holding
that non-employment was not justified and directed the writ petitioner to
reinstate the second respondent with continuity of services and backwages. The
writ petitioner has now sought to challenge the afore-said award.
2. The learned counsel for the petitioner submits that the Labour Court
committed an error in holding that the second respondent was employed by the
writ petitioner based on the evidence of WW2 and the document Ex.W4. The learned
counsel further submits that the Award has to be set aside.
3. On the other hand, the learned counsel for the second respondent
submits that the Labour Court has rendered a factual finding based on the
evidence and documents produced by the second respondent and therefore this
Court may not interfere on the factual findings.
4. Both the learned counsels relied on paragraphs 22 and 24 of the Award.
5. I have considered the submissions made on either side. The second
witness (WW2) examined by the second respondent before the Labour Court is a
Maistry working in the writ petitioner corporation. He deposed in favour of the
second respondent and a document Ex.W4 was also marked through WW2. Ex.W4 is the
certificate issued by the Assistant Manager of respondent corporation.
Paragraphs 22 and 24 of the Award are extracted hereunder:-
“22.WW2 is one of the Maistry working in the respondent corporation
deposed evidence. The employment of the petitioner continuously for 4 years for
the month of 1988 onwards. He has further deposed categorically and specifically
that the petitioner was not working under the contractor. The further specific
evidence deposed by WW2 is that the petitioner received salary from the
respondent corporation. These are the clinching evidence supporting the
contention of the petitioner along with the document marked through him under
Ex.W4. The particulars available in the document runs:
“jpUkjp BrhA;fk;khs; vd;gth; fle;j 1988 Mk;tUlk; Kjy; fpl;lA;fpapy; Tl;o
Rj;jk; bra;gtuhf gzpg[hpe;J te;jjhf Bk!;jphp g.uh$` TWfpd;whh;. cWg;gpdh; re;jh
urPJ vz; fhz;gpf;fg;gltpy;iy. jw;BghJ bjhlh;e;J gzpg[hpe;J tUfpd;whh;”
The certificate issued on 30.06.1992 by one Assistant Manager, Tamil Nadu Civil
Supply Corporation Limited Cap Storage, kappalur Madurai District. The said
Maistry Rajue has been examined as WW2. The said Raju has informed to the
respondent corporation office that one Songammal was working in the go-down for
the purpose of cleaning from 1988 onwards..
24. The reliability of this document could not be on cent percentage. It
is a document marked on objection lacking the particulars of ingredients or
documents. It is no doubt the xerox copies are filed and received on secondary
evidence since, the trial conducted before this Court is a summary trial nature.
The evidence act can not be strictly followed in a summary trial procedure.
Strictly speaking the legal ingredients of marking a document as Ex.W4 are not
fully available. But at the same time the fact available in that document
“namely the petitioner is an employee as stated by Raju” is a clinching fact on
the relevancy of fact to decide the point of issue. It can not be said at this
stage that the content available in Ex.W4 is very relevant and most relevant.”
6. According to the learned counsel for the petitioner, the Labour Court
has erred in accepting Ex.W4 when a xerox copy was filed. I am not agreeable to
the submission made by the learned counsel for the petitioner. WW2 is a
permanent employee of the petitioner corporation and that is not in dispute. He
deposed that the second respondent was continuously employed as Sweeper in the
godown. Apart from that, Ex.W4 certificate was given by the Corporation. In
paragraph 22 of the Award, a portion of the certificate was extracted. I am
extracting here Ex.W4 fully:
jkpH; ehL Efh; bghUs; thdpgf; fHfk; ypl;,
kJiu khtl;lk;
Rik J]f;FBthh; gw;wpa g[s;sp tpguk;
1.bgah; . . Mrs.BrhA;fk;khs;
2.fzth; bgah; . . S.jh;kuh$;;
3.taJ . . 40
4.tPl;L tpyhrk; . . 2tJ thh;L, Bjhg;g{h; (po)
kJiu
5.$hjp . . ne;J, gpukiyf; fs;sh;
6.Btiyf;Fr; Brh;e;j Bjjp . . 1988
7.bkhj;jk; Btiy ghh;j;j tUlk; . . 1 tUlk;
8.jw;BghJ gzpg[hpa[k; nlk; . . jpwe;j btspBrkpg;g[,
fg;gY]h;
9.jw;BghJ ve;j rA;fj;jpy;
cWg;gpduhf cs;shh; . .
10.rA;f bkk;gh; vz;. . . cWg;gpdh; ny;iy
ifbaGj;J
Bkw;fz;l tpguA;fs; vy;yhk; ehd; cz;ik vd;W cWjp TWfpBwd;.
bgUtpuy; Buif gjpt[.
Bk!;jphp bgah;
ifbaGj;J
jpUkjp BrhA;fk;khs; vd;gth; fle;j 1988 Mk;tUlk; Kjy; fpl;lA;fpapy; Tl;o Rj;jk;
bra;gtuhf gzpg[hpe;J te;jjhf Bk!;jphp g.uh$` TWfpd;whh;. cWg;gpdh; re;jh urPJ
vz; fhz;gpf;fg;gltpy;iy. jw;BghJ bjhlh;e;J gzpg[hpe;J tUfpd;whh;
7. Based on the evidence of WW2 and document Ex.W4, the Labour Court
recorded a factual finding. In my view, the conclusion arrived at by the Labour
Court cannot be characterised as a perverse one. In this regard it is useful to
refer to Rule 39 of the Tamilnadu Industrial Disputes Rules, 1958 which is
extracted hereunder:-
“Evidence – A Conciliation Officer, Board, Court, Labour Court or Tribunal
or an Arbitrator may call for, admit or accept any evidence at any stage and in
any manner, which in equity and good conscience he thinks fit.”
Thus, the submissions made by the learned counsel for petitioner regarding Ex.W4
deserves to be rejected. Further, this Court while exercising its jurisdiction
under Article 226 of the Constitution of India, would not incline to interfere
with such factual finding.
8. Therefore, I do not find any infirmity in the Award. Hence, the writ
petition is dismissed and the writ petitioner is directed to comply with the
Award within a period of 8 weeks from the date of receipt of the copy of this
Order. Consequently, connected miscellaneous petition is closed. No costs.
jikr
To
1.The Presiding Officer,
Labour Court, Madurai.