The Management of Aringnar AnnaZoological Park v. Arignar Anna Zoological Park ThozhilalarSangam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.10.2009CORAM:THE HONOURABLE MR. JUSTICE N. KIRUBAKARANWP.NO.9993 Of 2004inMP.No.11660 of 2004inWVMP.No.1255 of 2004The Management of Aringnar AnnaZoological Park,Vandalur, Chennai – 600 048. .. Petitioner Vs.1.The Workmen employed in Arignar Anna Zoological Park, Chennai, rep.by the General Secretary, Arignar Anna Zoological Park ThozhilalarSangam, 4/80, Vanampadi Valagam, National Highways, Otteri, Vandalur Post, Chennai – 600 048.2.The Presiding Officer, Principal Labour Court, Chennai. .. Respondents Prayer : Writ Petition is filed under article 226 of the Constitutionof India praying to issuance of Writ of certiorari to call for therecords in I.D.No.477 of 1997, dated 09.12.2003 on the file of thePrincipal Labour Court, Chennai and quash the same. For Petitioner : Mr.K.Rajasekar Government Advocate (Forest)For Respondent : Mr.S.Kumaraswamy For R1 ORDERThe writ petition has been filed by the Management ofArignar Anna Zoological Park, aggrieved by the award passed inI.D.No.477 of 1997 by which the member of the first respondent https://hcservices.ecourts.gov.in/hcservices/ Association was directed to be reinstated with all service and allother attendant benefits. 2.The case of the first respondent Association is thattheir members casual labours were and their details are given asfollows;t/vz; bgah;nrh;e;j njjpbra;j ntiyntiy ePf;fk;bra;ag;gl;l ehs;1,/$hd;1980bjhHpyhsp 25/11/19852nrh/,uzpag;gd; 25/10/1980kpd;rhu nkhl;lhh; ,af;Fgth;1/7/863Nf/gj;kehgd; 25/10/1980 @ 25/4/19864Vk;/Rg;gpukzp6/12/09 @1/7/865,/,uhkr;re;jpud;11/12/80Mapy; nkhl;lhh; ,af;Fgth;1/9/866,/RFkhh; 18/07/1984njhl;l ntiyahs;1/9/867V!;/gHdp1981gk;g; Mg;nul;lh; 25/4/19868Mh;/gHdp8/10/79jPtd njhl;lntiyahs;1/8/869Vd;/ghyfpUl;ozz; 19/08/1980Xa;tpl ghJfhtyh;1/8/86They were all employed to look after the Animals and attending otherconnected works in the Zoo. The petitioner engaged about 170 peoplefor maintenance of the Zoo and all of a sudden the members of thefirst respondent Association, were orally terminated from service.Aggrieved by that the union raised industrial dispute. However theTamil Nadu Government refused to refer the matter for adjudicationand against which the union was compelled to file W.P.No.5198 and7272/88. This Court by an order dated 17.3.1997, directed theGovernment to reconsider the matter so that the matter could bedecided by the Labour Court. Subsequently the matter was referredfor adjudication. 3.Claim Petition in I.D.No.477/97 was filed by 9 membersof the first respondent association. In the I.D.No.477 of 97, thefirst respondent association challenged the order of termination andprayed for reinstatement and payment of service and other attendantbenefits. https://hcservices.ecourts.gov.in/hcservices/

4.Counter statement was filed by the petitioner, whereinthe petitioner would contend that the workmen were employed on dailywages basis. Whenever there was work persons would be appointed andas soon as the work was over, their services would be terminated. Itwas the further contention that the Government of Tamil Nadu has gotevery power to remove the temporary workmen from the service and thatthe said persons were appointed only by an oral order; since theirservices were not required, they had been stopped by the oral order.The further contention of the petitioner is that with regard tomaintainability of claim petition by the Union representing theemployees as it is an unrecognised Association. It is the furthercontention of the petitioner that the provisions of the IndustrialDispute Act would not apply to the employees of Arignar AnnaZoological Park as it is not an industrial establishment. Yetanother contention was taken by the petitioner that the ZoologicalPark is not a commercial establishment and it does not come under thepurview of Sec.2(3) of Shops and Establishment act 1947. 5.After appreciation of the pleadings and evidence adducedbefore it, the labour court came to the conclusion that theZoological park's termination of the services of the members of thepetitioner is unjust and illegal and further held that utilizing theservice of the petitioner as casual labour even though thepetitioner was having permanent vacancy would amount to unfair labourpractice. For coming to the aforesaid conclusion, the labour courtrelied upon various documents, which were exhibited. Apart from thatthe labour court found that even though the petitioner park was inpossession of the documents which were necessary for adjudication,they were not filed before the court and as a result adverseinference was drawn against the petitioner for deliberately notproducing the relevant documents before the Court. 6.Aggrieved by the award passed in I.D.No.447 of 1997the present writ petition has been filed by the Management,contenting that there was no appointment order in writing and theywere not terminated from service. Casual workers were engaged forthe project work, namely construction and maintenance of zooinfrastructure, in the initial stage of the construction of the zooand the nature of work was purely temporary till the assigned workwas completed. 7. Mr.Rajasekar, Government Advocate, Forest Department,relied upon a Judgment of this Court made in writ petition No.6985of 1986 passed on 24.07.1986 and stated that the zoological park isnot an industry and hence Industrial Dispute Act is not applicable.On the other hand, Mr.S.Kumaraswamy, learned counsel for the firstrespondent submitted that after appreciation of the facts andevidence only, the tribunal rightly passed the award and it does notwarrant any interference based on the contention raised by thepetitioner. With regard to locus standi, he submitted that on behalf https://hcservices.ecourts.gov.in/hcservices/ of the members, the Union can maintain claim petition.Mr.S.Kumaraswamy, learned counsel for the first respondent reliedupon the Judgment of the Hon'ble Punjab & Hariyana High Court inPunjab Anand Lamp Employees Union v. Punjab Anand Lamp Industry Ltd.And another reported in (1997(1) LLJ 338) wherein it was held asfollows:"After coming into force of Section 2A, the disputerelating to an individual workman can be raised by theworkman himself or by a registered trade union,recognised or unrecognised or by a substantial number ofworkmen and there is nothing in the Act, which indicatesthat a union is debarred from raising a dispute relatingto an individual workman." 8.Secondly unfair labour practice was employed by the firstrespondent zoo. Moreover the zoo will come under the definition ofindustry. He relied upon the judgment of the Hon'ble Supreme Court inthe case of CHIEF CONSERVATOR OF FORESTS & ANOTHER V. JAGANNATHMARUTI KONDHARE reported in 1996(1) LLJ page 1223 wherein SupremeCourt held that the Forest Department of the State Government is anindustry. Relying upon the said judgment, the learned counsel forthe first respondent contended that the judgment of the single judgepassed in W.P.6985 of 1986 is over ruled by the above said supremecourt judgment. Moreover the Supreme Court declared the educationalinstitution is also an industry. With regard to the status of forestdepartment, it has been settled by the Apex Court.9. Mr.S.Kumaraswarmy learned counsel for the petitionercontended that only a few employees have been chosen by thepetitioner management and terminated their services, which wasadmitted by the witnesses of the management in the cross-examination.The evidence of M.W.1 would support the claim of the respondentassociation. The learned counsel for the first respondent submittedthat all the aspects were analysed by the labour court passed theaward, which need not be interfered with. 10.A perusal of the award would show that it was passedon proper consideration of pleadings and evidence. The managementhas been in possession of the documents which were necessary fordeciding the claim of the first respondent association. Undersection 106 of the Evidence Act, a person who is in possession of thedocuments has to produce those documents as evidence. Section 106 isextracted as follows:" 106. Burden of proving fact especially withinknowledge--- When any fact is especially within theknowledge of any person, the burden of proving that factis upon him." https://hcservices.ecourts.gov.in/hcservices/ As admitted by M.W.1, the documents in support of the workers were inpossession of the management and in default to produce thosedocuments the court could draw adverse inference against thepetitioner/management. It was rightly held by the labour courtregarding production of the documents were concerned, if thedocuments were produced it would have gone against the management andthat was the reason why the management did not produce thosedocuments. Industrial Disputes Act has been enacted to safeguard theinterests of the workers and the same should be given effect inletter and sprit by the state Government. The zoological park comesunder the Forest Department and the same would come under the purviewof the Industrial Disputes Act. 11.The petitioner management should not have terminatedthe poor casual labourers without giving any reasons. On thecontrary the similarly placed workers, were absorbed by the verysame management, as admitted by the petitioner witness. Hence thereis a case of discrimination also. Regarding plea of maintainabilityof the claim petition by the association, the issue was alreadysettled by the Hon'ble Supreme Court in M/s.Akil Bharatiya SushityKaaranchari Singh (Railways) represented by its Assistant GeneralSecretary on behalf of the Association etc. vs. Union of India andothers reported in AIR 1980 SC 298 and therefore the plea of thepetitioner regarding maintainability is rejected holding that theAssociation has locustandi to maintain the claim petition. 12.Apart from that the tribunal has given a finding offact, which cannot be challenged under article 226 exercising thewrit jurisdiction. Unless the finding are perverse exercising writjurisdiction under Article 226 of the Constitution of India, theHigh Court cannot act as appellate authority the jurisdiction ofthis Court is very limited as pronounced by the Hon'ble Supreme Courtin Rahimal (Dead) by LRs and another Vs. Deputy Director ofConsolidation and others reported in (2002) 10 SCC 94 wherein it hasbeen held that the finding recorded by the Court is the finding offact and it cannot be assailed in the appeal, and finding of factcannot be interfered with by this Court. Similarly, in Ranjeer SinghVs. Ravi Prakash reported in (2004) 3 SCC 682, it has been held bythe Hon'ble Supreme Court that the High Court cannot act like anappellate Court and re-appreciate or re-evaluate the evidence whileexercising Certiorari or Supervisory jurisdiction. In Shamshad Ahmadand others Vs. Thilak Raj Bajai (Deceased) through LRs reported in(2008) 9 SCC, the Hon'ble Supreme Court held that the powers of theHigh Court under Article 226 and 227 are very wide and extensive overall Courts and Tribunals, and such powers must be exercised withinthe limits of law. The High Court does not act as a Court of appealor a Court of error. Unless there was miscarriage of justice orviolation of law calling for intervention it was not for the HighCourt under Article 226 and 227 to interfere. The above said https://hcservices.ecourts.gov.in/hcservices/ principle has been laid in D.N.Bonerji Vs. P.R.Mukherjee reported inAIR 1953 SC 58 and the same was followed in Chandavarkar Sita RatnaRao Vs. Ashalata S.Guram reported in (1986) 4 SCC 447 (Page 460 para20) Hence there is nothing to show that the impugned order has beenpassed without considering the evidence. On the other hand the labourcourt is justified in passing the award. 13.For the reasons stated above the writ petition isdismissed. Consequently, connected Miscellaneous petitions areclosed. No costs. am/vk26.10.2009This Petition having been posted on this day Friday, theThirtieth day October 2009 for being mentioned in pursuance to theorder of this Court dated 26.10.2009 and made herein in the presenceof Mr.K.Rajasekar, Government Advocate (Forest) and ofMr.S.Kumarasamy, Advocate for the Respondent-1 the Court made thefollowing Order:The above matter is posted before this court for beingmentioned. It is being brought to the notice of this court by thelearned counsel for respondents that as per order on 17.08.2006passed by this court the petitioner / Management was directed todeposit the entire back wages as award by the labour court. Pursuantto the order the management deposited the amount and out of which 75% was ordered to be disbursed by the respondent, for which thelearned counsel for the management has stated no objection and thebalance amount of 25% was directed to be deposited in any one of theNationalised Bank until further orders. Since, the above writpetition filed by the management was dismissed by this court on26.10.2009 the amount payable to the creditor of the labour court,namely the second respondent is hereby directed to be paid by filingan application before the Labour Court. On such filing by the secondrespondent, the Labour court is directed reimburse the amount within10 days thereafter.Sd/-Asst. Registrar//true copy//Sub Asst.Registrar sms https://hcservices.ecourts.gov.in/hcservices/ To1.The Presiding Officer, Principal Labour Court, Chennai.1 cc to Mr.K.M.Ramesh, Advocate, Sr.No.576551 cc to Spl.Government Pleader, Sr.No.56863, 57678 W.P.No.9993 Of 2004AKR {CO}TP/4.2.2010.