S. Selvam v. The Presiding Officer Labour Court Cuddalore & Ors.
Case at a glance
Provisions considered
Key paragraphs
- Para 66. The Labour Court, without reference to any legalprovision, held that the petitioners are are piece-rate workersand there was no employer – employee relationship between the Cigar rollers and the Management and that no documents were filedto show that they had worked for 12 hours…
- Para 99. In Sudhoo's case (cited above), the Supreme Coutexplained the scope of Section 31(2) of the Beedi and Cigar Actand held that even oral termination is ceased by the section. The following passages found in paragraph 10 of the said judgmentmay be usefully reproduced:-Para 10:"The…
- Para 1111. In the light of the above, the writ petitions standallowed and the Award dated 12.9.1995 passed by the Labour Courtin I.D. Nos. 561 and 567 of 1992 will stand set aside. TheIndustrial Disputes are remitted to the Labour Court for freshdisposal in accordance with…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDated 21..7..2008Coram: The Hon'ble Mr. Justice K.CHANDRUW.P. Nos. 9248 and 9249 of 1997S. Selvam.. Petitioner in W.P. No. 9248 of 1997C. Kaliamoorthy.. Petitioner in W.P. No. 9249 of 1997vs.
The Presiding OfficerLabour CourtCuddalore2.S.K.T. Velayutham (Deceased)3.S.K.T.V. Raja4.S.K.T.V. Kannan5.S.K.T.V. Prabhu .. Respondents in both W.Ps. RR3 to 5 substituted as LRsof deceased R2 as per orderdated 25.8.2003 in W.M.P. No. 7264 and 7262 of 1999.Petitions filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsof the first respondent in Award dated 12.9.1995 and made in I.D.Nos. 561 and 567 of 1992 and quash the same. For Petitioner : Mr. T. Dhanyakumar for both W.Ps.For RR3 to 5: Mr. A. MuthukumarC O M M O N
O R D E RThese writ petitions are filed by the petitioner against thecommon Award dated 12.9.1995 passed by the first respondent LabourCourt and made in I.D. Nos. 561 and 567 of 1992 insofar as itdenied any relief to the petitioners. https://hcservices.ecourts.gov.in/hcservices/
The petitioners, along with several other persons, raised a dispute against the SKT Vel Mark Suruttu Company withreference to their non-employment under Section 2A(2) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. The claimof the petitioners was that they were employed for 3 to 10 yearsand were drawing Rs.900/- per month and they were working formore than 12 hours and the respondents had engaged 80 workers. The petitioners along with other workers joined the ThanjavurDistrict Cigar Workers' Union claiming bonus and went on anagitation. They had also gone on strike w.e.f. 20.10.1990.Subsequently, after the withdrawal of the same, when they went toreport for work on 28.10.1990, the petitioner along with 11 otherswere denied work. The only ground on which the petitioners weredenied work was that they had gone on strike. The Trade Unionleaders held talks and when that failed, they moved the LabourOfficer and got their dispute referred for adjudication by thefirst respondent Labour Court.
The respondents filed a counter affidavit refuting thestand of the petitioners and stated that at no point of time, they came back to work. Even on 28.10.1990, when they came towork, they are ready to give them the materials for rolling cigarsbut the petitioners never reported to work.
The petitioners in these petitions, along with six otherpersons, who have also raised similar industrial disputes, wereheard together by the Labour Court and a common Award dated12.9.1995 was passed.
Before the Labour Court, the petitioners examinedthemselves as W.W.2 and W.W.3 apart from examining other workersas W.W.1, W.W.4 and W.W.5. On the side of the second respondent,S.K.T. Velayutham (since deceased), the then in-charge wasexamined. While the workmen had filed 24 documents, which weremarked as Exs. W.1 to W.24, on the side of the respondents, twodocuments were filed and they were marked as Exs. M.1 and M.2.
The Labour Court, without reference to any legalprovision, held that the petitioners are are piece-rate workersand there was no employer – employee relationship between the Cigar rollers and the Management and that no documents were filedto show that they had worked for 12 hours in the establishment. Since they were paid on the basis of the output of cigars rolledby them, it cannot be said that they were employees of therespondents. In paragraph 14 of the Award, the Labour Courtshowed its utter ignorance of the working of the Beedi and Cigarestablishments and the relevant case laws on the said subject. The Labour Court further held that in the absence of any evidenceto show the employer – employee relationship between thepetitioners and the Management, mere receiving of letters and https://hcservices.ecourts.gov.in/hcservices/ other documents in the address of the employer cannot create anyproof and, therefore, the question of their removal from servicedoes not arise. It also held that the workers cannot be termedto be "workman" within the meaning of Section 2(s) of the I.D.Act. In that view of those findings, it held that thepetitioners are not workmen. But, however, if the petitionerscome forward to roll cigars on the basis of earlier arrangement, they may be taken by the employer as was done in the past.
In this context, it is relevant to refer to thefollowing judgments of the Supreme Court:-(a)Hussainbhai, Calicut v. The Alath Factory ThozhilaliUnion, Kozhikode [(1978) 4 SCC 257](b)Sudhoo v. Haji Lal Mohd. Biri Works [(1990) 4 SCC 37]
The Supreme Court in Hussainbhai, Calicut v. TheAlath Factory Thozhilali Union, Kozhikode [(1978) 4 SCC 257] andrelied on the following passages found in paragraphs 4 to 6:-Para 4:"This argument is impeccable in laissez faireeconomics “red in tooth and claw” and under the Contract Act rooted in English Common Law. But thehuman gap of a century yawns between this strictdoctrine and industrial jurisprudence. The sourceand strength of the industrial branch of Third WorldJurisprudence is social justice proclaimed in the Preamble to the Constitution. This Court in GaneshBeedi case has raised on British and Americanrulings to hold that mere contracts are not decisiveand the complex of considerations relevant to therelationship is different. Indian Justice, beyondAtlantic liberalism, has a rule of law which runs tothe aid of the Rule of life. And life, in conditionsof poverty aplenty, is livelihood, and livelihood iswork with wages.
Raw societal realities, not fine-spun legal niceties, not competitive marketeconomics but complex protective principles, shapethe law when the weaker, working class sector needssuccour for livelihood through labour. Theconceptual confusion between the classical law ofcontracts and the special branch of law sensitive toexploitative situations accounts for the submissionthat the High Court is in error in its holdingagainst the petitioner. https://hcservices.ecourts.gov.in/hcservices/ Para 5:The true test may, with brevity, be indicated onceagain. Where a worker or group of workers labours toproduce goods or services and these goods orservices are for the business of another, that otheris, in fact, the employer. He has economic controlover the workers’ subsistence, skill, and continuedemployment. If he, for any reason, chokes off, theworker is, virtually, laid off. The presence ofintermediate contractors with whom alone the workershave immediate or direct relationship ex contractuis of no consequence when, on lifting the veil orlooking at the conspectus of factors governingemployment, we discern the naked truth, thoughdraped in different perfect paper arrangement, thatthe real employer is the Management, not theimmediate contractor.
Myriad devices, half-hidden infold after fold of legal form depending on thedegree of concealment needed, the type of industry, the local conditions and the like may be resorted towhen labour legislation casts welfare obligations onthe real employer, based on Articles 38, 39, 42, 43and 43-A of the Constitution. The court must beastute to avoid the mischief and achieve the purposeof the law and not be misled by the maya of legalappearances. Para 6:If the livelihood of the workmen substantiallydepends on labour rendered to produce goods andservices for the benefit and satisfaction of anenterprise, the absence of direct relationship orthe presence of dubious intermediaries or the make-believe trappings of detachment from the Managementcannot snap the real life-bond. The story may varybut the inference defies ingenuity. The liabilitycannot be shaken off. "
In Sudhoo's case (cited above), the Supreme Coutexplained the scope of Section 31(2) of the Beedi and Cigar Actand held that even oral termination is ceased by the section. The following passages found in paragraph 10 of the said judgmentmay be usefully reproduced:-Para 10:"The High Court on the interpretation of abovequoted section came to the conclusion that appellantSudhoo was prevented from doing the work by theestablishment and since no order of retrenchment, discharge or dismissal was passed the provisions of Section 31 were not attracted. The High Court was https://hcservices.ecourts.gov.in/hcservices/ patently in error. The Act is a measure of sociallegislation to give protection to the workmenemployed in the beedi and cigar industry. Theprovisions of the Act are to be liberally construed. Whenever a workman approaches the PrescribedAuthority under Section 31(2) of the Act with acomplaint that his employment has been brought to anend by the employer without any reasonable cause, the Prescribed Authority is bound to adjudicate thesame. It hardly matters whether the employment wasterminated by written order, oral direction or bystopping the workman from entering the place ofwork. The Prescribed Authority in this case found asa fact that the appellant was employee ofrespondent-establishment and his services werearbitrarily terminated. We are, therefore, of theview that High Court was wrong in holding that theappeal of Sudhoo was not maintainable under Section31(2) of the Act. "[Emphasis added]
The above said rulings of the Supreme Court will clearlyshow that Beedi and Cigar Workers (Conditions of Employment) Act1966 has been enacted with a view to safeguard the workmen engagedin the said industry and by virtue of Section 31 of the said Act, no employer can dispense with the service of the employee withouta reasonable cause. Therefore, there is an injunction againstthe employer from dispensing with the service of their employerexcept for the conditions stated therein. It is inconsequentialthat an employee is engaged for rolling cigars on piece-ratebasis. When an employer breaches the statutory enactment by notkeeping the registers, any other evidence in the form of lettersbeing received in the said address in the name of the employee canalso be a material evidence to prove his employment with thatemployer. The Labour Court made a superficial finding and did notadvert to the legal precedents on this issue.
In the light of the above, the writ petitions standallowed and the Award dated 12.9.1995 passed by the Labour Courtin I.D. Nos. 561 and 567 of 1992 will stand set aside. TheIndustrial Disputes are remitted to the Labour Court for freshdisposal in accordance with law. Since these matters are alreadymore than 18 years old, the first respondent Labour Court isdirected to give preference in disposing of the same, but, in any https://hcservices.ecourts.gov.in/hcservices/ event dispose of the same within a period of three months from thedate of receipt of a copy of this order. No costs.gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar ToThe Presiding OfficerLabour CourtCuddalore1 cc to Mr.A.Muthukumar, Advocate, SR.386132 ccs to M/s.T.Dhanyakumar, Advocate, SR.38971 & 39336ksk (co)dv/25.8.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Industrial Disputes Act, 1947 — s. 2A(2); Theprovisions of the Act.
Which court decided this case, and when?
Madras High Court, on 21 Jul 2008. The bench was K CHANDRU.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.