IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.2636 of 2001 The Tamil Nadu State Transport Corporation (Madurai Division -IV) Ltd., (formerly known as Rani Mangammal Transport Corporation Ltd.,) 141, Railway Station Road, Dindigul 624 003. ... Petitioner Vs 1.The Presiding Officer, Industrial Tribunal, Madras 104. 2.The Secretary, Rani Mangammal Pokkuvarathu Thozhilalar Sangam, 47-C, V.M.R.Street, Dindigul 624 001. ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records of the first respondent in I.D.No.69/91 dated 15.11.2000 quash the same. For Petitioner : Mr. P.Wilson Additional Advocate General for Mr.Rajnish Pathiyil For Respondents : Mr.K.Elango for R2 O R D E R
The petitioner is the State owned Transport Corporation, which was earlier known as Rani Mangammal Transport Corporation, having its headquarters at Dindigul. The petitioner Company has filed the present writ petition seeking to challenge the Award passed by the first respondent Industrial Tribunal in I.D.No.69/91 dated 15.11.2000. By the impugned Award, the Tribunal answered the reference in favour of the workmen represented by the second respondent Trade Union and directed their regularisation.
2. The writ petition was admitted on 12.02.2001. Pending the writ petition, an order of interim stay was granted. Subsequently, on 29.08.2003, the interim stay was made absolute.
3. Heard the arguments of Mr.P.Wilson, learned Additional Advocate General leading Mr.Rajnish Rajnish Pathiyil, counsel for the petitioner and Mr.K.Elango, learned counsel for the second respondent. The original records were also summoned from the Tribunal for perusal by this Court.
4. The second respondent Trade Union raised a dispute with reference to grant of permanent status to various Bus Body Cleaners and Sweepers engaged by the petitioner Corporation. Since the conciliation could not end in a settlement, a failure report was sent to the State Government. The Government of Tamil Nadu, Labour and Employment Department by their order in G.O.D.No.1068 dated 25.10.1991 referred the dispute relating to the Bus Body Cleaners represented by the second respondent Trade Union and the Management. By the order of reference,the State Government directed the first respondent Tribunal to find out whether the 116 workmen whose names were mentioned in the schedule were having any employer employee relationship with the petitioner Corporation. If so, whether they are entitled to get permanent status in the Corporation and further to answer the nature of relief to be granted to those workmen.
5. The first respondent Tribunal on receipt of the order of reference registered the same as I.D.No.69 of 1991 and issued notice to the parties. The second respondent Trade Union filed a claim statement dated 08.02.1992 by which it demanded regularisation to the Bus Body Cleaners and Sweepers engaged by them and also sought for fixation of time scale of pay for those workmen. The petitioner Corporation filed a counter statement dated 09.05.1992.
6. Before the Tribunal, on behalf of the second respondent Union one Arumugha Nainar was examined as W.W.1. On the side of the petitioner Corporation, M/s.P.Udaya Suriyan and P.Govindarajan were examined as M.W.1 and M.W.2. Two Court witnesses were also summoned viz., Sivasubramanian and A.Vincent and they were respectively examined as C.W.1 and C.W.2. On the side of the second respondent Union, 37 documents were filed and they were marked as Exs.W1 to W37. On the side of the petitioner Corporation, 9 documents were filed and they were marked as Exs.M1 to M9.
7. The Industrial Tribunal on the basis of the materials placed before it came to the conclusion that employer employee relationship did exist between the Bus Body Cleaners and Sweepers with the Corporation. It cannot be said that they were engaged by the Conductors and they were paid out of the daily collection amount gathered by them. For the purpose of arriving at such conclusion, the Tribunal applied various tests to determine whether there was any relationship of Master and servant existed between the workmen named in the order of reference and the petitioner Corporation. The Tribunal as a matter of fact found that the Management was maintaining some registers for marking their attendance. On certain occasions, the workers had been paid leave wages, ex-gratia and bonus. In certain occasions, some of the workers were dismissed and later were taken back and paid wages during the strike period. Though it was contended by the petitioner Corporation that there were no regular attendance maintained and no direct wages were paid, the Tribunal on the basis of materials placed before it in Exs.W30, W35 and W37 held that the work of the Bus Body Cleaners were perennial in nature and each day 700 buses will have to be cleaned before they are put on the road. It was found that without cleaning the buses, the buses cannot be put on the road. Though no documents were filed with reference to the various statutory registers, the Tribunal drew adverse inference on the non-production of various statutory registers and the fact that no worthwhile evidence was let in by the Corporation before the Tribunal. In that context, the Tribunal also placed reliance upon the evidence of two witnesses who were summoned through the Tribunal and examined as C.W.1 and C.W.2. Those two witnesses were not strangers to the Corporation and they were their own employees and who have had occasions to supervise the work of those workmen. Ex.W35 was the duty chart signed by one Sivasubramanian, C.W.1 and he vouchsafed the signature found on Ex.W35. C.W.2 Vincent also deposed that while he was working in the Corporation used to maintain attendance registers of the maintenance staff. The maintenance staff used to take token before going to work and on the basis of the token issued their attendance will be marked. The token notebook was maintained by the persons who were in charge of the stores.
8. The Tribunal also placed reliance upon Ex.W25, letter written by the Inspector of Factories dated 16.03.1990 stating that the department never permitted any contract workers in the Corporation for doing maintenance work including Bus Body Cleaning. It was also found that in Dindigul Unit No.II, Ottanchathiram and Palani branches attendance register were maintained for these workmen and there had no license for engagement of contract workers. The Tribunal also referred to the evidence of M.W.1 who was an officer of the Corporation and noted that the Bus Body Cleaners were paid Rs.2.50 per bus by the Conductor and no vouchers were obtained from them. No notice is put up in the Board with reference to number of buses to be cleaned by them. The Conductors themselves took care of cleaning of the buses by the Bus Body Cleaners and no separate staff were appointed to supervise their work. On the basis of these materials, the Tribunal held that the workmen were direct employees of the petitioner Corporation and by virtue of provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act, 1981, more particularly Section 3 by which, if any workmen are engaged beyond 480 days’ within 24 calendar months they are entitled to have the status of permanent workman. Accordingly these workmen who had satisfied the legal requirements were declared to be entitled to get permanent status including time scale of pay.
9. The petitioner Corporation in the affidavit filed in support of the writ petition raised several contentions. Though such a vague averment regarding the espousal of the dispute by workmen was made in the counter statement before the Tribunal, a perusal of the impugned Award showed no arguments on those issues were addressed before the Tribunal. Even otherwise if it is held that the workmen whose names are found in the order of reference are found to be the workmen of Corporation they themselves can constitute a substantial section of the workmen to maintain the reference. Even otherwise the Supreme Court vide its judgment in Tata Chemicals Limited v. Their Workmen reported in 1978 1 LLN 547 has held that rbrn a minority trade union can validly raise an industrial dispute under Section 2(k) of the Industrial Disputes Act.
10. It may not be out of place to note that in identical circumstances, this Court had upheld the various Awards passed by the Labour Court and Industrial Tribunal holding that the Bus Body cleaners engaged by various state owned Transport Corporations were employees of the Corporation. The fact that they were paid piece rate wage or there were no records maintained for their employment will not make them either independent contractors or non-workmen. The earlier Awards of the Labour Courts in this regard were confirmed and the Workmen were directed to be given the pay applicable to the last grade employees engaged by the Corporation.
11. Notwithstanding the same, the learned Additional Advocate General strenuously contended that in the present case that these 116 workmen whose names were found in the order of reference have not discharged their burden of proof about their employment including their tenure in the Corporation. Until and unless such burden is discharged, the Tribunal had erred in ordering their regularisation. The learned Additional Advocate General tried to place reliance upon the judgment of this Court in Cholan Roadways Corporation Ltd.,rep by its Managing Director v. The Presiding Officer reported in (2004) W.L.R. 122 to contend that there was no master and servant relationship between the Corporation and the Bus Body Cleaners. However, subsequent to the said judgment, much water has flown and there is a series of Division Bench Orders of this Court confirming the Awards of the Labour Court holding that the Bus Body cleaners are workmen of the Corporation notwithstanding the piece rate payment made to them through the agency of the conductors.
12. Infact very recently in identical circumstances, the Supreme Court has upheld the order made by the Industrial Court constituted under the Bombay Industrial Relations Act and the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act (MRTUPULP Act) vide its decision in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana,(2009) 8 SCC 556. In that case, the Supreme Court held that the Maharashtra State Road Transport Corporation engaging Bus Body Washers on contract basis of Rs.1.50 per bus for years together without any other service conditions extended to them was a clear act of “unfair labour practice” found under Section 30(1)(b) and 32 r/w Schedule IV Item 6 of the MRTUPULP Act. In that case, the Trade Union representing the Bus Body Washers approached the Industrial Court in Mumbai and sought for a suitable direction to prevent the Corporation from continuing to engage the Bus Body Washers on the basis of piece rate wages terming it as an act of unfair labour practice. The Industrial Court granted prohibitory orders against the Corporation and directed their regularisation. The challenge to the order passed by the Industrial Court was repelled by the Bombay High Court and on appeal, the Supreme Court held that the order of the Industrial Court was perfectly valid and that the Bus Body Washers though paid on piece rate basis were workmen of the Corporation. Their continued engagement on contract basis was a clear case of unfair labour practice prohibited by the Act.
13. An attempt was made by the Corporation to contend that the recruitment of these workmen were not on the basis of any recruitment rules and therefore the judgment of the Supreme Court in State of Karnataka v. Umadevi (3) reported in 2006 (4) SCC 1 will squarely apply. The Supreme Court held that the Umadevi’s case (cited supra) will have no relevance if the issue was governed by any local enactment. The Umadevi’s case will apply only to cases of demand for regularisation being considered in a petition under Article 32 and 226 of the Constitution and that the Umadevi’s case will not affect special statutes like the MRTUPULP Act. The said judgment of the Supreme Court will squarely apply to the facts of the case on hand.
14. It must be noted that the Industrial Disputes Act, 1947 had also defined the term ‘unfair labour practice’ under Section 2(ra) of the I.D.Act. The list of unfair labour practices are listed under the Vth Schedule to the Act which was introduced by the amending Act 46/82 with effect from 21.08.1984. In the Vth Schedule to the Industrial Disputes Act, Item 10 prohibits an employer from engaging the workmen as ‘badlis’, ‘casuals’ or ‘temporaries’ and to continue them as such for years together with the object of depriving them of the status and privileges of permanent workman. The said definition is pari materia Item 6 of Schedule IV of the MRTUPULP Act. Section 25-T of the I.D.Act prohibits commission of unfair labour practices by any employer and Section 25-U prescribes penalty for commission of any unfair labour practice by an employer. Therefore, the workmen in the present case are also covered by the dicta laid down by the Supreme Court in the case of Maharashtra SRTC (cited supra). The Award passed by the Tribunal is legally valid and does not call for any interference.
15. Mr.Wilson, learned Additional Advocate General, notwithstanding the authoritative pronouncement of the latest judgment of the Supreme Court tried to place reliance upon the following decisions:
i)Tamil Nadu Police Housing Corporation v. C.Dhanasekharan and Ors reported in (2009) 3 MLJ 552.
ii)Government of Andhra Pradesh and others v. K.Brahmanandam and others reported in (2008) 5 SCC 241/
iii) Secretary, State of Karnataka and others v. Umadevi and Others reported in 2006(3) Supreme 415.
iv) Mahboob Deepak v. Nagar Panchayat Gajraula and another reported in (2008) 1 SCC 575.
The thrust of the argument was that the workmen were employed de hors any recruitment rules and therefore, there cannot be any direction to regularise their services. It is unnecessary to traverse into the decisions cited since the Supreme Court in Maharashtra SRTC (cited supra) had answered these points squarely and the law of the Supreme Court will also apply to the case of the workmen since similar provisions are also available prohibiting the commission of unfair labour practice under Schedule V prescribed under Section 2(ra) of the I.D.Act. Therefore, the challenge to the Award in this regard must necessarily be rejected.
16. The learned Addition Advocate General thereafter took another route for challenging the Award by contending that the workmen had not discharged their burden in satisfying the Tribunal regarding the number of days worked by them and unless and until the details of each workmen were forthcoming, the Tribunal by giving a blanket direction to the Corporation to regularise their service may not arise. In his opinion that the Corporation was not even aware of the existence of these workmen. For the purpose of establishing that the burden of proof in establishing the number of days worked by them heavily falls upon the workmen, the learned Additional Advocate General relied upon the following judgments.
i)Range Forest Officer v. S.T.Hadimani reported in (2002) 3 SCC 25.
ii) Manager, Reserve Bank of India, Bangalore v. S.Mani and others reported in (2005) 5 SCC 100.
iii) Surendranagar District Panchayat and another v. Jethabhal Pitamberbhai reported in 2006 (1) L.L.N. 104
iv) M.P.Electricity Board v. Hariram reported in (2004) 8 SCC 246.
There is no quarrel over the proposition of law laid down in the judgments referred to by the learned Additional Advocate General.
17. However in the present case, the stand of the petitioner Corporation was that they never employed these workmen and there are no records available about their employment. But so far as the second respondent Trade Union is concerned it had completely discharged its burden, first by examining a witness of their side namely W.W.1 and also marked available documents. They had also summoned C.W.1 and C.W.2 as Court witnesses. It was elicited from those witnesses that the registers were maintained in Dindigul Unit II, Ottanchathiram and Palani branches, the petitioner Corporation having held that they have no records now cannot turn back and state that the workmen have failed to prove through documents that they were employed by the petitioner Corporation. It is rather surprising that the State Owned Transport Corporation have come even after committing acts of unfair labour practice which were not only prohibited by the I.D.Act but penalties has been prescribed under law. The fact that there are 700 buses running and each bus has to be kept clean before it is put on road cannot be denied. Having taken a stand that the workmen whose names were found against the order of reference are not their workmen and that they have no records maintained, the only course open to the workmen is to assert on the basis of their claim statement, oral evidence as well as whatever documentary proof that they had in their possession filed before the Tribunal. It must be noted that the Industrial Tribunal is not trapped by the provisions of the Evidence Act and under Rule 39 of the Tamil Nadu Industrial Disputes Rules, 1958, the Tribunal can call for admit or accept any evidence which in equity and good conscience if it is deem fit. Even if it is held that principles underlined in the Indian Evidence Act 1872 will apply, a reference can be made to Section 106 wherein it is clearly stated that it a fact is especially within the knowledge of any person the burden of proving that fact is upon him. In this case the workmen have discharged their burden and it is the petitioner who had not co-operated in the effort to unravel the truth and are attempting to take advantage of the adversarial nature of the litigation.
18. In the present case, the workmen have discharged their obligation in bringing whatever within their knowledge to the notice of the Tribunal and it was the petitioner Corporation which had been stonewalling any admission with reference to the employment of the workmen and also denying the existence of documents which were found to be false as per the evidence of C.W.1 and C.W.2 cannot now come forward to contend that the workmen have not discharged their burden of proof.
19. In the light of the above and in view of the fact that similar Awards were passed in respect of the very same Corporation were upheld by this Court, this Court is not inclined to interfere with the impugned Award. Hence the writ petition stands dismissed. No costs.
08.06.2010
Index: Yes/No
Internet :Yes/No
svki
To
1.The Presiding Officer,
Industrial Tribunal,
Madras 104.
2.The Secretary,
Rani Mangammal Pokkuvarathu
Thozhilalar Sangam,
47-C, V.M.R.Street,
Dindigul 624 001.
K.CHANDRU,J.
Svki
Pre-Delivery order in
W.P.No.2636 of 2001
08.06.2010