M/s.K.Abdul Azeez Son & Co v. The Presiding Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDated :16 .12.2006Coram THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU W.P.No.15840 of 1996M/s.K.Abdul Azeez Son & Co.,No.4, Horse Bidis,No.4,Big Alipuran Street,Vellor – 632 004.N.A.A.District,by its Partner,K.Iqbal Ahamed...PetitionerVs.1.The Presiding Officer,Labour Court,North Arcot Ambedkar District,Fort,Vellore – 632 004.2.A.GunasekaranIndependent Contractor.No.25/2,Chunnambukara Street,Vellore – 632 004.N.A.A.District.3.M.Tamilmani4.P.Selvakumar5.V.Selvam6.C.Sundramoorthy7.K.Rajan8.S.B.Ramalingam9.R.Munian10.V.Mani11.C.Munuswamy12.T.K.Lala13.Abdul Alim14.Abdulla Khan15.M.Appunu16.G.Chinnakannu17.Dhandayutham (Deceased)18.Doraiswamy19.R.Gopal20.M.Jagedesan21.E.Kesavan22.K.Kannan23.G.Krishnan24.Mrs.D.Lalitha...Respondents https://hcservices.ecourts.gov.in/hcservices/ (R24 substituted as LR of the deceased 17th respondent as perorder dated 03.09.2003 in W.P.M.P.No.26897/03)WRIT PETITION filed under Article 226 of the Constitution of Indiapraying for the issuance of a Writ of Certiorari, calling for therecords of the first respondent, the Labour Court, ending with itsorder C.P.Nos.2315/93 to 2335/93 dated 10.09.1996 and quash thesame.For Petitioner :Mr.Habibullah Basha Sc for M/s. E.S.Govindan & S.SureshKumarFor R3 to R16,R18to R23:Mr.Yashod Vardan for Mr.M.MuthuPandianOther Respondents :No AppearanceO R D E RThe petitioner is questioning the legality andcorrectness of the Order passed by the Presiding Officer of theLabour Court, Vellore in Computation Petition Nos.2315/93 to2335/93. 2.In a nut shell, the facts of the case are: The claim petitions are filed on behalf of 21 persons claimingthemselves as workmen of the second respondent and for grant ofclosure compensation, notice pay and backwages. The parties arereferred as they are shown in the Original Computation Petitions,before the Labour Court. 3.The facts of the case are those 21 persons were employedby the Contractor, who is the second respondent and he is thelicenced contractor and he closed his branch on 01.04.1993 and theprocedure for closing down was not observed. Therefore it amountsto retrenchment and those 21 persons were claiming as workmen ofthe second respondent and claiming closure compensation and noticepay. The Labour Court after examining one witness on behalf of theworkmen and two witnesses on behalf of the respondent and aftermarking five documents for workmen and eight documents forrespondent allowed the plea of the workmen and directed the firstrespondent to pay the amount to the petitioners and the claimagainst the second respondent is dismissed.4.Aggrieved by the same, the first respondent filed thiswrit petition. In the common order of the Labour Court, it ismentioned that the petitioners were employed by the secondrespondent and the second respondent is the licensed contractor of https://hcservices.ecourts.gov.in/hcservices/ the first respondent. The second respondent closed his branch on01.04.1993, denying employment to the petitioners and procedure forclosing has not been observed, as laid down under the IndustrialDisputes Act. Therefore, it amounts to retrenchment andpetitioners are entitled for Closure compensation and notice payunder Section 25FFF of Industrial Disputes Act. In the commonorder, it is also mentioned that the first respondent/writpetitioner filed detailed counter that he never employed theworkmen and never paid wages to them and there was no privity ofcontract of employment between the first respondent/writ petitionerand the workmen and there is no relationship of master and servantand the first respondent/writ petitioner has no control over thesecond respondent. 5.In this case, the most interesting person is none otherthan the second respondent, the independent contractor, who is handin glove with the workmen. He filed a counter admitting the caseof the workmen. According to him, his father was the contractor ofthe first respondent/writ petitioner and after his death in 1978,the licence was transferred in his name and all the workmen wereemployed on behalf of the first respondent/writ petitioner, as pertheir directions and the wages, provident fund, bonus are all paidby the first respondent/writ petitioner and all the registers arealso maintained by them. It is stated that the job of thecontractor is to issue Beedi leaves and Tobacco received from thefirst respondent/writ petitioner to the workmen and get them rolledand handed over to the first respondent/writ petitioner and he getsonly commission. Therefore, he intends to wash off his hands bypointing fingers at the first respondent/writ petitioner forpayment of compensation. After the evidence were examined, theLabour Court has framed two points and gave finding in favour ofthe workmen.6.Mr.Habibullah Basha, learned Senior Advocate contended onbehalf of the first respondent/writ petitioner that there is noevidence on record that all the 21 workmen are employed by thesecond respondent and paid any salary, provident fund, etc. It isvehemently contended that no document was produced to prove thesame. It is contended that the names of eight workmen are notfound in the records maintained by the second respondent and thesefacts are proved from the reply received from Regional ProvidentFund Commissioner, to whom the returns are submitted by theContractor. It is thus contended that these eight persons are notat all the workmen of the Contractor and they are not entitled forany compensation. It is also contended that the communicationreceived from the Regional Provident Fund Commissioner, disclosesthat seven more workmen, did not work for that period and the samewas also established through the returns submitted by theContractor in Form 6-A, for the years 1987-1992. Therefore thoseseven workmen are also not entitled for any compensation. It isstated that the names of only five workmen finds place in Form 6-Aof the Employees Provident Fund Scheme, 1952, in the annualstatement of contribution and they alone can be treated as theworkmen of the second respondent, who is an independent contractor https://hcservices.ecourts.gov.in/hcservices/ and these facts are not all considered by the Labour Court. Thoughall these points are raised before them, but the Order of theLabour Court is one way and their written arguments are notconsidered and without any discussion on the written arguments andwithout appraising their evidences on record and withoutappreciating the communication from the Regional Provident FundCommissioner, the impugned order was passed on sympathetic groundsand the same is liable to be set aside.7.Heard arguments on both sides in detail. Minutelyperused the impugned Order. The point for determination is whetherthe Order of the Labour Court is liable to be quashed.8.Normally, the Writ Court do not interfere with the Ordersof the Labour Court, but when it is pointed out that there is noevidence or there is a mis-leading of evidence or there is aperverse finding or there is an erroneous approach, then this Courtwill have to interfere, with the orders of the Labour Court.9.The law in relation to the limitations of thejurisdiction of the High Court in entertaining a plea for Writunder Article 226 of the Constitution is well settled. A Writ ofCertiorari can be entertained by the High Court, if it is shownthat the impugned Order suffers from an error apparent on the faceof the record. In order to justify the Writ of Certiorari, theremust be a clear error, that is error of law and not an error offact, because error of fact, though serious, though it may beapparent on the face of the record, cannot sustain a claim for thewrit of certiorari. It is only error of law that justify the issueof the said writ, provided as it would reasonably be treated aserroneous and apparent on the face of record. If a finding of factis made by the impugned Order and it is shown that it is based onno evidence, that would no doubt be a point of law under Article226 of the Constitution. If this distinction is not borne inmind, it is unlawful to entertain an application for writ underArticle 226. The High Court may unwittingly assume thejurisdiction of the appellate court, which is clearly distinctfrom the jurisdiction of the writ court. If it can be said thatthe view taken by the Tribunal, is not reasonable, it can be saidthat error is apparent on the face of record. The High Courtcannot exercise its limit, in its writ jurisdiction, in interferingwith the findings of the Labour Court or Tribunal based on theconstruction put up by it on a document, unless it is reasonablynot possible.10.Thus the noteworthy thing is whenever there is anadjudication by the Labour Court or the Tribunal upon a question offact, the High Court is not entitled to interfere on jurisdictionalfacts, which the Tribunal was well considered. But If the Tribunalomits to consider any crucial fact or if the Labour Court giveserroneous finding on the fact, leading to an error of law or if theLabour Court omits to consider any fact, it would no doubt, be apoint of law, which has to be set aside by the High Court underArticle 226 of the constitution. https://hcservices.ecourts.gov.in/hcservices/

11.In the instant case, the first respondent/writ petitionerhas raised important and vital points before the Labour Court andhe has also placed the same, before this Court. All those pointswere found in the written arguments, filed on behalf of the firstrespondent/writ petitioner before the Labour Court. It is veryunfortunate to note that the Court below did not consider many ofthose important points. Ex.R-2 is the letter of Regional ProvidentFund Commissioner, Madras allotting Provident Fund Code NumberTN/18329, to the Establishment of Gunasekaran, that is theContractor as per Ex.R5-R8 the documents submitted by theindependent contractor to the Regional Provident Fund Commissioner,Madras which were requested and obtained from the above officer bythe Labour Court and discloses the names of total employees, whoworked with the independent contractor for that period. It appearsthat only 8 employees worked with the second respondent, whereasthe Labour Court has awarded compensation to 21 employees, in factthere was no discussion by the Labour Court on any of these vitaldocuments. The primary duty cast on the workmen to prove that theyare the workers of the independent contractor, then the questionabout who is the principle employer can be considered. If theworkmen fails to establish that they are the workmen of anyparticular person, it is unnecessary for the Court to verify, whois the employer because privity of contract of employment is not inextent and there is no relation of master and servant between thosepersons. 12.In the instant case, admittedly the workmen did notproduce any document to prove that they are the workmen of thecontractor. The contractor though admits in his counter and in hisevidence, did not produce any record to prove that those 21 personsor at least eight of them worked with him at any point of time orother. The records received from the Regional Provident FundCommissioner's office discloses that majority of those 21 personsare not workmen of the contractor, who is the second respondent.The authenticity of those documents received from RegionalProvident Commissioner cannot be doubted. The Labour Court hasomitted to note this important and relevant fact. Therefore, thisCourt has not hesitation to hold that the findings of the LabourCourt is perverse and it is against the principles of IndustrialLaw. However sympathetic, the Court is supposed to restrain itselfon the legalities. Until and unless it is established that those21 persons are the workmen of the Contractor the second respondent,they have no case and this fact has not been established either bythose 21 persons or by the second respondent who is sailing withthem. 13.In the written arguments, the first respondent/writpetitioner clearly stated that it is the second respondent theindependent contractor, who is instrumental for the entirelitigation. It is clearly stated in para 3 of the writtenarguments that the independent contractor has colluded with theworkmen and hushed up and suppressed all the records and raised thefrivolous dispute. https://hcservices.ecourts.gov.in/hcservices/

14.The Labour Court is also expected to verify this fact,when there are no records to prove that those 21 persons areworkmen of the independent contractor. It is absurd to direct thefirst respondent to pay the compensation. Further according to thefirst respondent/writ petitioner, there was no rejection of beediesand the Labour Court has committed an error to hold that there wasa rejection, basing on Ex.P-5. It is stated that Ex.P-5 is thechallan prescribed by Central Government to accompany the beediesand this is a statutory document and Column No.3 of Ex.P-5 containstotal quantity of Beedies and in Column No.2 of the counter ofEx.P-5, the quantity of beedies is accepted and if the quantitymentioned in Column Nos.3&2 respectively is one and the same, nobeedies were rejected because entire quantity is accepted and thereis a column in Ex.P-5 regarding beedies rejected because this is acommon Challan for all excisable commodities. Ex.P-5 proves norejection of beedies that has taken place at the establishment offirst respondent and this is irrefutable conclusive proof becausethe entire quantity of beedies is accepted and acknowledged. 15.Whileso, the Court below mis-read and mis-led itself andcame to erroneous conclusion. Likewise there are number of otherinfirmities in the Order of the Labour Court and it is unnecessaryfor this Court to go into all those details, because this Court hasalready noticed that the Labour Court has omitted to note theimportant facts and without any evidence and by showing sympathy,the impugned order was passed and it is an one side order. Thecase of the case of the first respondent/writ petitioner is not alldiscussed and the decisions cited by the first respondent/writpetitioner were also not considered. 16.Therefore, this Court is of the opinion that it is a fitcase to quash the impugned Order. Accordingly the impugned orderis quashed and the matter is remitted back to the Labour Court,with a direction to give opportunities to both sides, to provetheir respective cases and after verifying each and every documentsmore particularly, the document received from the RegionalProvident Fund Commissioner's Office and finalise the matterstrictly in accordance with the rules of law.17.In the result, the writ petition is allowed and thematter is remitted back to the Labour Court for fresh disposal. NoCosts.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.svki https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding Officer,Labour Court,North Arcot Ambedkar District,Fort,Vellore – 632 004. W.P.No.15840 of 1996RA (CO)kk 21/12