{"id":225904,"date":"2003-07-29T00:00:00","date_gmt":"2003-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-arumugam-vs-the-presiding-officer-on-29-july-2003"},"modified":"2015-08-09T10:40:38","modified_gmt":"2015-08-09T05:10:38","slug":"s-arumugam-vs-the-presiding-officer-on-29-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-arumugam-vs-the-presiding-officer-on-29-july-2003","title":{"rendered":"S. Arumugam vs The Presiding Officer on 29 July, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">S. Arumugam vs The Presiding Officer on 29 July, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 29\/07\/2003\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE P.K. MISRA\n\nWRIT PETITION.NO.6465 OF 1998\n\n1. S. Arumugam\n2. K. Dharmalingam\n3. P. Jayaraman\n4. R. Matheeswaran\n5. P. Alagarasan                        ..  Petitioners\n\n-Vs-\n\n1. The Presiding Officer,\n   Labour Court,\n   Salem.\n\n2. The Management of Institute\n     of Road and Transport Technology,\n   Erode.                               ..  Respondents\n\n        Petition filed under Article 226 of the Constitution of India for  the\nissuance of Writ of Certiorarified Mandamus as stated therein.\n\nFor Petitioner :  Mr.D.  Hari Paranthaman\n\nFor Respondent-2       :  Mr.  John for\n                        M\/s.  Ramasubramanian &amp;\n                        Associates\n\n\n:J U D G M E N T\n<\/pre>\n<p>                The present writ petition has been filed challenging the order<br \/>\npassed  by  the  Presiding  Officer,  Labour  Court and for a direction to the<br \/>\nrespondent No.2 to reinstate  the  petitioners  with  continuity  of  service,<br \/>\nbackwages and other attendant benefits.\n<\/p>\n<p>                2.   The respondent No.2 is an Engineering College established<br \/>\nby the Transport Corporations owned by the State Government.  According to the<br \/>\npetitioners, they along with several  others  had  been  engaged  as  security<br \/>\nguards.  Initially  they  were  being  paid  directly.   They had demanded for<br \/>\nregularisation and at this stage they were prevented  from  joining  the  duty<br \/>\nalleging that the workmen had been orally terminated without any notice or any<br \/>\ncompensation.  Industrial Disputes were raised by individual workmen.\n<\/p>\n<p>                3.   Before the Labour Court, counter had been filed on behalf<br \/>\nof the respondent No.2 refuting the contentions raised.  It  was  stated  that<br \/>\nthe  applicant was never employed directly in the Institute and he was workman<br \/>\nengaged through a security contractor.  In the alternative  it  was  submitted<br \/>\nthat  even if the applicant was considered to be a workman, his employment was<br \/>\nirregular as he had not been employed by  following  the  mandatory  procedure<br \/>\napplicable to the Institution.\n<\/p>\n<p>                4.   Before  the  Labour  Court,  all  similar  cases filed by<br \/>\nvarious workmen were heard together.  On behalf of the  workmen,  one  witness<br \/>\nwas  examined, whereas on behalf of the Management, two witnesses, namely, the<br \/>\ntwo successive Principals of the College were  examined.    Several  documents<br \/>\nhave also  been  produced  from  either  side.    The Labour Court came to the<br \/>\nconclusion that all the claimants had  worked  on  labour  contract  basis  by<br \/>\nentering  into  contract  with the management and after every month, they have<br \/>\nreceived the money through the contractor.  It was further found that<br \/>\n         .  .  .  no contractor was continuously entered into  contract  with<br \/>\nthe management.   Petitioner in I.D.172\/94 was involved in work only in May 93<br \/>\nas per contract.  Petitioner in I.D.70\/95 has worked only in  December  92  as<br \/>\ncontractor.   Petitioner  in  I.D.71\/95 has worked as contractor only for four<br \/>\nmonths, i.e.  August 92, April 93, August 93,  February  93.    Petitioner  in<br \/>\nI.D.72\/95 has  worked as contractor only for one month, August 93.  Petitioner<br \/>\nin I.D.73\/95 has worked for one month, August 92 as contractor.  Petitioner in<br \/>\nI.D.74\/95 has worked for 4 months i.e.  in August 90, November 90, January 91,<br \/>\nOctober 91 as Contractor.  Petitioner in I.D.75\/95 has  worked  for  4  months<br \/>\ni.e.   in  September  91,  March  92,  April  93  and  March 94 as contractor.<br \/>\nPetitioner in I.D.34\/96 has worked for 3 months i.e.  in June 91, July 91  and<br \/>\nDecember 91.<\/p>\n<p>                5.   Relying  upon a decision of the Supreme Court reported in<br \/>\n1995( II) LLN 59 <a href=\"\/doc\/366376\/\">(GUJARAT ELECTRICITY BOARD THERMAL POWER STATION, GUJARAT  v.<br \/>\nHIND  MAJDUR  SABHA  &amp;  OTHERS)<\/a>  it  was observed by the Labour Court that the<br \/>\nworkmen ought to have raised industrial dispute  under  Section  2(k)  of  the<br \/>\nIndustrial  Disputes  Act  and the Industrial Dispute raised by the individual<br \/>\npetitioners cannot be accepted.  Refuting the  contention  that  even  workman<br \/>\nhimself  can  enter into a contract of employment through him, it was observed<br \/>\nthat such question could not be decided as the dispute was at the instance  of<br \/>\nthe individual  persons and there was no reference by the State.  On the basis<br \/>\nof such conclusion, while dismissing the industrial disputes, a direction  was<br \/>\ngiven in each industrial dispute to pay a sum of Rs.5,000\/- as solatium to the<br \/>\nclaimant.\n<\/p>\n<p>                6.   The  claims  before  the  Labour  Court  were relating to<br \/>\nnonengagement of the applicants.  There was no prayer  for  regularisation  of<br \/>\nservice.   The observation of the Labour Court at various places to the effect<br \/>\nthat there was no reference by State and no  dispute  within  the  meaning  of<br \/>\nSection 2(k) of the Act is obviously based on misconception of facts placed by<br \/>\nvarious applicants.   Their grievance was regarding the alleged non-engagement<br \/>\nin violation of the provisions contained in Section  2A  of  the  Act.    Such<br \/>\nindividual  disputes  could  be  raised in view of the provisions contained in<br \/>\nSection 10A, as amended in Tamil Nadu.\n<\/p>\n<p>                7.  A careful perusal of the award of the Labour  Court  along<br \/>\nwith  the  materials  on  record  makes  it clear that the so called contracts<br \/>\nbetween the management and the  person  agreeing  to  supply  the  labour  had<br \/>\nfollowed a  peculiar  pattern.  The contracts were made in each month with one<br \/>\nor two persons agreeing to employ such person and calling upon such person  to<br \/>\nengage few others.  In the subsequent months, similar contracts in cyclostyled<br \/>\nform were executed between the management and some other person.  A perusal of<br \/>\nthe  materials  available  clearly  shows  that a person who was being engaged<br \/>\nthrough  so  called  contractor  for  a  few  months  would  suddenly  be  the<br \/>\ncontractor  for  the subsequent month, where he would be engaged as security<br \/>\nguard in his so called capacity as contractor and would agree to engage  few<br \/>\nothers as  security  guards.    It  is obvious that the very same persons were<br \/>\nbeing engaged as security guards and documents were being executed to  give  a<br \/>\ncolour as if the persons were being engaged through a contractor.  In a normal<br \/>\ncontract  for  employment  of  labour,  one  would have expected that the same<br \/>\ncontractor would continue for a considerable length of time, but the very fact<br \/>\nthat one or two persons were  being  contracted  to  supply  labour  including<br \/>\nthemselves  as  labourers  and  similar  arrangements would be made with other<br \/>\npersons, tells its own tale.  Coupled with the above, the documents on  record<br \/>\nas well as the evidence of the two management witnesses clearly indicates that<br \/>\nthe  directions  were  being  given through a Supervisor regarding the duty of<br \/>\nsuch persons and even on some occasions, those persons were being discontinued<br \/>\nfor a few days on the basis of  the  direction  of  the  authorities.    These<br \/>\naspects  clearly  indicate  that some amount of control was being exercised by<br \/>\nthe management.\n<\/p>\n<p>                8.  It is the  specific  case  of  the  applicants  that  such<br \/>\npractice was  suddenly introduced in 1991-92.  The materials on record clearly<br \/>\nsupport such a stand.  No contra materials have been produced on behalf of the<br \/>\nmanagement  to  indicate  the  position  that  was  obtaining  prior  to   the<br \/>\nintroduction of  such  system.    It is of course true that when the claimants<br \/>\nhave come to the court with the allegation that they have worked and they have<br \/>\nbeen disengaged, burden was on them to produce materials in support  of  their<br \/>\ncontention.   However,  the  basic principle that the parties must produce the<br \/>\nbest evidence and the duty on the respondents to bring all relevant  materials<br \/>\non record, cannot be lost sight of.\n<\/p>\n<p>                9.    Learned   counsel  appearing  for  the  respondents  has<br \/>\nvehemently contended that there is no specific allegation that  the  contracts<br \/>\nwere  sham  transactions  and  there  was  actual relationship of employer and<br \/>\nemployee between the  respondent  No.2  and  the  claimants.    In  the  claim<br \/>\npetitions,  it has been indicated that the claimants had been working directly<br \/>\nunder the respondent No.2 and they had been suddenly disengaged.    It  is  of<br \/>\ncourse true  that  nothing had been indicated about the contract.  However, it<br \/>\nhas to be remembered that the applications had not  been  drafted  by  lawyers<br \/>\nhaving  legal  knowledge,  but may be by the workman himself or some person in<br \/>\nthe Union.  The pleadings filed by such persons must be construed on par  with<br \/>\nmofussil  pleadings  and  it would not be proper to interpret such pleadings<br \/>\nstrictly.  The basic allegation that  the  claimants  were  directly  employed<br \/>\nunder the  respondent  No.2 was there in the pleading.  Even though it had not<br \/>\nbeen specifically stated in so many words that the contract was  sham,  it  is<br \/>\nquite evident that the clear case of the claimants was to the effect that they<br \/>\nwere workmen under the respondent No.2.\n<\/p>\n<p>                10.   Learned  counsel  appearing  for the respondent No.2 has<br \/>\nvehemently contended that since the question had not been thrashed out by  the<br \/>\nLabour  Court,  if there is any illegality in such order, the matter should be<br \/>\nremanded for fresh disposal.  Even though normally such  a  course  is  to  be<br \/>\nadopted,  I  find  that disputes have started about a decade back and it would<br \/>\nnot be in the interest of justice to remand the matter  at  this  stage  which<br \/>\nwould  be  prolonging  the  agonising  litigation  for  the  claimants  and an<br \/>\nuncertain litigation for the management.  With a view to bring  the  fruitless<br \/>\nlitigation  to  an end, it would be in the interest of justice to finalise the<br \/>\nmatter.\n<\/p>\n<p>                11.  The peculiar nature of various contracts has already been<br \/>\nnoticed.  The oral evidence indicates that some amount of  control  was  being<br \/>\nexercised over the security supervisor engaged by the management and sometimes<br \/>\nthe persons  were  asked  to  remain  absent.  The materials on record clearly<br \/>\nindicate  that  the  persons  had  been  initially  directly  engaged  by  the<br \/>\nmanagement,  but  subsequently so called contracts were executed to show as if<br \/>\nthe persons were being engaged  through  some  contractors.    The  inevitable<br \/>\nconclusion  is  that the petitioners were workmen under the college and the so<br \/>\ncalled contract was a mere eye-wash.\n<\/p>\n<p>                12.  There is no doubt that no notice had been issued nor  any<br \/>\nretrenchment compensation  had  been  given.   Since the petitioners have been<br \/>\nfound to have been directly engaged and subsequent disengagement  was  without<br \/>\nfollowing  the  provisions contained in Section 25F of the Industrial Disputes<br \/>\nAct, they would come within the meaning  of  retrenchment.    Therefore,  they<br \/>\nshould be  reinstated  in service.  However, keeping in view the fact that the<br \/>\nrespondent No.2 is being managed by a Society and running certain  educational<br \/>\ninstitutions, it  would  not  be  fair  to  direct payment of backwages.  As a<br \/>\nmatter of fact, the learned counsel appearing for the petitioners  had  fairly<br \/>\nsubmitted  that  the  petitioners are more concerned about their employment in<br \/>\nfuture rather than their backwages for the past.    Moreover,  it  is  already<br \/>\nnoticed  that the Labour Court had given a direction for payment of Rs.5,000\/-<br \/>\nas ex-gratia to every applicant.  Since that order has not been challenged  by<br \/>\nthe  respondent,  such amount should be paid to the applicants, but apart from<br \/>\nsuch payment, no other payment would be made for the  previous  period.    The<br \/>\npetitioners  should be permitted to rejoin within a period of 30 days from the<br \/>\ndate of communication of this order.\n<\/p>\n<p>                13.  Subject to the above directions,  the  writ  petition  is<br \/>\nallowed.  No costs.\n<\/p>\n<p>Index :  Yes<br \/>\nInternet :  Yes<br \/>\ndpk<\/p>\n<p>To<\/p>\n<p>1.  The Presiding Officer,<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court S. Arumugam vs The Presiding Officer on 29 July, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29\/07\/2003 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA WRIT PETITION.NO.6465 OF 1998 1. S. Arumugam 2. K. Dharmalingam 3. P. Jayaraman 4. R. Matheeswaran 5. P. Alagarasan .. Petitioners -Vs- 1. The Presiding [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-225904","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>S. 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