Tamil Nadu State Transport Corporation(Villupuram-Division-II) Limited v. Arumugam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.11.2009CORAMTHE HONOURABLE MR. JUSTICE N. KIRUBAKARANW.P.No.8159 of 2003Tamil Nadu State Transport Corporation(Villupuram-Division-II) Limited,Rangapuram, Vellore-9.PetitionerVs.1. The Presiding Officer, Labour Court, Vellore.2. Arumugam RespondentsThe Writ Petition filed Under Article 226 of the Constitutionof India for issuance of a Writ of Certiorari, calling for therecords on the file of the first respondent herein and to quash theimpugned award dated 28.06.2001 made in I.D.No.350 of 1995.For Petitioner: Mr.M. Sudhakaran for M/s. King & PatridgeFor Respondents: R1-Court Mr.V. Ajoy Khose for R2 ORDERThe Writ Petition has been filed as against the impugned awarddated 28.06.2001 by which the second respondent was reinstated withall benefits in the petitioner Management Corporation. The factsof the case are as follows:2. According to the petitioner the second respondent was acasual employee on daily wages of Rs.78/- per day and he was not apermanent employee and he had not put in continuous service. Thesecond respondent was employed as driver and on 09.07.1994, thesecond respondent drove the bus in a rash and negligent manner anddashed against a tree at the extreme left side of the roadresulting in death of three persons and injuring five others.Because of the said accident, the petitioner had to pay heavycompensation. Therefore, the petitioner decided not to engage thesecond respondent any more. https://hcservices.ecourts.gov.in/hcservices/

3. Aggrieved by that, the second respondent raisedI.D.No.350/95 on the file of the first respondent. In the saidIndustrial Dispute, the second respondent claimed that on09.07.1994 while he was driving the vehicle on duty near Polur, thewind screen glass which had already developed scratches suddenlybroke and caused injuries to the respondent's hands resulting inloss of control and the vehicle dashed against the tree on theroad side. 4. It is the case of the petitioner that the secondrespondent took treatment for the injuries sustained by him atVellore Government Hospital till 11.10.1994. After treatment, whenhe reported for duty, the petitioner did not provide him work andfiled the above petition. In the said petition, the secondrespondent submitted that he reported the condition of the windscreen glass to the depot staff even before he took the vehicle butno step was taken to repair the glass and that the accident did notoccur due to his negligence and carelessness. He also found faultwith the petitioner's reason to deny employment without any chargesand without any enquiry.5. The petitioner filed counter affidavit and contended thatthe second respondent cannot raise Industrial Disputes underSection 2(A) of the Industrial Disputes Act and he would not comewithin the definition of the worker that he never performed duty asa permanent worker in the Corporation and that he was only workingas a casual employer. It is also stated in Paragraph 7 of thecounter statement that the second respondent/driver drove thevehicle in a rash and negligent manner and he was solelyresponsible for the accident.6. On appreciation of facts andevidence, the labour Court held that even a casual employer canraise Industrial Dispute as per Section 2A(2) of the IndustrialDisputes Act and that no proof was filed on the side of thepetitioner Management to prove the nature of the employment givento the second respondent. Thirdly, the petitioner without anyjustification and without any notice or enquiry denied theemployment and therefore it reinstated the second respondent withall full benefits. 7. Mr.M.Sudhakaran, learned Counsel for the petitionersubmitted that the second respondent is only the casual employerand he would not covered by Industrial Disputes Act and he cannotraise Industrial Disputes under Section 2A of the IndustrialDispute Act. He contended that the burden of proof to prove thatthe worker had completed 240 days of service, is cast upon theworkman and not on the Management. He relied on a judgment of theHonourable Supreme Court in State of Maharashtra Vs. DattatrayaDigamber Birajdar reported in AIR 2007 SC 3056. In that case, itwas held that the burden to prove that the workmen was engaged for https://hcservices.ecourts.gov.in/hcservices/ 240 days in service lies on the employee. To come to the conclusionthe Supreme Court relied upon a judgment in Range Forest OfficerVs. S.T.Hadimani reported in (2002) 3 SCC 25. By relying upon thosejudgments the learned Advocate submitted that the burden of proofis upon the person who approached the court with the plea that hecontinued in service for 240 days of employment. Hence, he foundfault with the findings of the Labour Court that the Management hadnot disputed the factum of employment of second respondent for 240days. The counsel also submitted that there is no proof before theTribunal to come to the conclusion that the second respondent wasnot responsible for the accident and that the accident caused heavyloss to the petitioner who had to pay heavy compensation, payableto the victims of the accident. Therefore, he contended thepetitioner is justified in not conducting any enquiry and notgiving any employment on the ground that he was not the permanentemployer. 8. Mr.Ajay Ghosh, the learned Government Advocate submittedthat it is well settled proposition of the law that the person whocomes to the Court has to prove his claim. However, in this casethe Petitioner Management did not deny the allegation, with regardto the employment of the second respondent, for more than 240days. Secondly, the learned counsel submitted that the secondrespondent would come under the definition of to Section 2(s) ofthe Industrial Disputes Act. Section 2(s) of the IndustrialDisputes Act is extracted as follows:"workman" means any person (including an apprentice)employed in any industry to do any manual, unskilled,skilled, technical, operational, clerical orsupervisory work for hire or reward, whether the termsof employment be express or implied, and for thepurposes of any proceeding under this Act in relationto an industrial dispute, includes any such person whohas been dismissed, discharged or retrenched inconnection with, or as a consequence of, that dispute,or whose dismissal, discharge or retrenchment has ledto that dispute, but does not include any such person-(i)who is subject to the Air Force Act, 1950 (45 of1950), or the Army Act, 1950 (46 of 1950), or the NavyAct, 1957 (62 of 1957);(ii)who is employed in the police service or as anofficer or other employee of a prison, or(iii)who is employed mainly in a managerial oradministrative capacity, or(iv)who, being employed in a supervisory capacity,draws wages exceeding one thousand six hundred rupeesper mensem or exercises, either by the nature of theduties attached to the office or by reason of thepowers vested in him, functions mainly of a managerialnature. https://hcservices.ecourts.gov.in/hcservices/

9. Learned counsel relying upon the said section, submittedthat the second respondent comes under Section 2(s) of theIndustrial Disputes Act. When he comes under 2(s) of theIndustrial Disputes Act necessarily, he has to be terminated afterfollowing the procedure namely, issuing show cause notice, holdingof enquiry etc., Non observance of the procedures of the Act,would definitely vitiate the action of the petitioner to denyemployment. Thirdly, he contended that as stated in para 2 of theclaim petition the wind screen glass which had already developedscratches suddenly broke and caused injuries to the secondrespondent's hands resulting in loss of his control over thevehicle and the accident occurred which was beyond his control.10. A perusal of the award would show that the pleadings andevidence on record have been taken into consideration by theTribunal, while passing the award. In paragraphs 5 and 6 of theaward the Labour Court gave a finding with regard to the right ofthe second respondent to maintain Industrial Disputes under Section2A(2) of the Act. The second respondent in paragraph 1 of theclaim statement stated that he was appointed as driver in thepetitioner Corporation from 05.11.1992 till 09.07.1994. Such factwas not denied in the counter statement filed on behalf of theCorporation. In the absence of any denial in the counterstatement, it is deemed to be an admission. Apart from that theManagement is in possession of the documents with regard to theemployment of the second respondent. The person who is inpossession of these documents is required to produce them beforethe Court of Law and that too the documents are within theknowledge of the petitioner Management. As per Section 106 of theIndian Evidence Act, 1872, the burden lies on the person who hasgot special knowledge to produce the documents. As the Managementfailed to produce those documents adverse inference could be drawnagainst it and it is deemed that the workman worked from 05.11.1992to 09.07.1994 and which comes to more than 240 days.11. No doubt, the judgment cited by the learned counsel forthe petitioner speaks about the burden of proof lies upon theemployee, whereas in the case as stated above, the Management isthe right person to produce the documents with regard to theemployment of the second respondent, as it is in possession of thedocuments to show that for how many days he worked. As itmiserably failed to produce the documents and discharge itsburden, the said judgment is not useful to the petitioner. 12. The Labour Court came to the conclusion that even a casualemployee will be considered as workman under Sections 2(S) and 25Fof Industrial Dispute Act relying upon the judgment in DineshSharma and others Vs. State of Bihar reported in 1982 LIC NOC 125and H.D Singh Vs. Reserve Bank of India and others reported in 1985 https://hcservices.ecourts.gov.in/hcservices/ II LLN 1037=AIR 1986 SC 132. In these judgments it has been heldeven a person working as a casual employment for more than oneyear, the denial of employment, would be considered as dismissalfrom service.13. The Tribunal rightly concluded that the second respondentis workman who put in service more than 240 days and he has to benecessarily be given notice and enquiry should be conducted beforedenying employment. In the absence of the above, the Tribunalrightly concluded that the denial of employment without followingthe procedure is against Industrial Disputes Act and reinstated thesecond respondent.14. The Tribunal in paragraph 8 of the award found that theaccident occurred only for the improper administration of thepetitioner Management. The Tribunal rightly pointed out that asper Exhibit M3 there was scratches developed in the minor and hadthe management repaired or replaced the same the accident wouldhave been avoided. The proper management of the buses lies withthe administration of the petitioner Management. The Tribunalfound fault with the petitioner/Management for not properlymaintaining the buses. Without maintaining the buses in propermanner, there would not be any point in finding fault with thedrivers. 15. Moreover it is brought to the notice of the Court aboutthe counter statement by the petitioner/Management in MACTO.P.No712 of 1995, which was filed by the victims of the accidentand in which in paragraph 3, it was stated that the petitioner'sdriver(the second respondent herein) has not driven in rash andnegligent manner and he was driving the vehicle in proper way.Therefore, the petitioner cannot deny employment on the ground thatthe second respondent caused the accident. The aforesaid counterstatement filed in MACT case defeats the case of the petitioner. 16. The findings given by the Tribunal are finding of factsand it cannot be set aside by this Court. This court under Article226 of the Constitution of India cannot act as an Appellate Courtto reappreciate and revalue the evidence, exercising supervisingjurisdiction. Chandavarkar Sita Ratna Rao vs. Ashalata S. Guramreported in 1986 4 SCC 447(Page 460 Para 20). In the light of thejudgment of the Supreme Court, the scope of judicial review withregard to findings of fact given by the Tribunal, is very limitedby exercising supervisory jurisdiction under Article 226 of theConstitution of India. No such interference is warranted againstthe award of the Tribunal. In these circumstances, this Courtconfirms the award passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

17. The writ petition stands dismissed. No costs. ssjSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Presiding Officer, Labour Court, Vellore.+1 cc to Mr. V. Ajay Kohse, Advocate SR No.59566KJI(CO)SR/9.3.2010W.P.No.8159 of 2003