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1999 DIGILAW 841 (MAD)

KUMARAVEL R. v. TAMIL NADU STATE TRANSPORT CORPORATION

1999-08-17

E.PADMANABHAN

body1999
JUDGMENT : E. Padmanabhan, J.—This Court ordered notice of motion on July 6, 1998. The respondents have been served. The second respondent entered/ appearance through Sri Vijay Narayan, who had also filed counter-affidavit. 2. The petitioner prays for the issue of writ of certiorarified mandamus to call for and quash the award, dated October 14, 1997, made in I.D.No. 416 of 1995 on the file of the second respondent Labour Court and consequently direct the first respondent to forthwith reinstate the petitioner in service as time-keeper and ticket canvasser at Dindigul bus stand with all monetary and service benefits. 3. The petitioner claiming that he was working as "time-keeper and ticket canvasser" under the first respondent-Corporation since 1987 at Dindigul Bus Stand and claiming that he was paid Rs. 1.50 per bus for 10 buses per day raised an industrial dispute as according to the petitioner his approach to the first respondent for regularisation of his service was not accepted and to his shock and surprise his services were terminated orally on October 14, 1997. 4. It is the case of the writ-petitioner that he had approached the Secretary, Transport Department, for reinstatement and also moved the Labour Court, Trichy, in I.D.No. 416 of 1995. The Labour Court after considering the evidence let in by either side by its award, dated October 14, 1997, rejected the industrial dispute raised by the writ-petitioner. Being aggrieved the present writ petition has been filed. 5. On consideration of the claims and counter statements, the Labour Court framed the following three points for consideration: (i) whether the relationship of employer and employee exists between the parties; (ii) whether the claim is maintainable? (iii) to what relief, the claimant is entitled? 6. Before the Labour Court, the workman marked Exhibits W1 to W7 while the management marked Exhibits M1 to M9. The writ-petitioner and the respondents each examined one witness. The Labour Court on a consideration of oral and documentary evidence held that the writ-petitioner is not a workman, that there existed no relationship of employer and employee and that the writ-petitioner is not entitled to any relief. Being aggrieved the present writ petition has been filed. 7. The writ-petitioner and the respondents each examined one witness. The Labour Court on a consideration of oral and documentary evidence held that the writ-petitioner is not a workman, that there existed no relationship of employer and employee and that the writ-petitioner is not entitled to any relief. Being aggrieved the present writ petition has been filed. 7. Sri Kandavadivel Doraisami, the learned counsel appearing for the writ-petitioner, strained himself and contended that the writ-petitioner is a "workman" and he is not a ticket canvasser simpliciter and there exists the relationship of employer and employee and therefore, the non-employment is illegal. The learned counsel also relied upon the earlier unreported pronouncement of this Court, dated April 15, 1994, made in W.P.No. 8404 of 1984 wherein this Court held on the findings of the Labour Court that the claimant therein worked as a time keeper and ticket canvasser and that he is a workman as defined in Section 2(s) of the Industrial Disputes Act. 8. The learned Judge in the said decision also considered the scope of interference with respect to the findings of the Labour Court under Article 226 and on a consideration of the award of the Labour Court held that no interference is called for while pointing out that whether the relationship between the parties is one as between the employer or employee or between master and servant is a pure question of fact and the award of the Tribunal on a question of fact, which it has jurisdiction to determine, is not liable to be interfered. 9. Relying upon the said pronouncement in W.P.No. 8404 of 1984 Pandiyan Roadways Corporation, Ltd. v. Presiding Officer, Labour Court, Madurai, the learned counsel for the writ- petitioner contended that the petitioner herein is also a workman and that the award of the Labour Court is liable to be set aside by this Court in the present writ petition. 10. Before proceeding further with the dicussion and taking up the legal contentions, in fairness, it has to be stated that the findings recorded by the second respondent Labour Court had not been challenged in this writ petition. The Labour Court had analysed the entire evidence both oral and documentary and held that the writ-petitioner is only a ticket canvasser, who collects Rs. The Labour Court had analysed the entire evidence both oral and documentary and held that the writ-petitioner is only a ticket canvasser, who collects Rs. 1.50 per bus and for 10 buses operated by the first respondent-Corporation canvassed tickets and not a "workman" nor was be ever been appointed in any post. 11. It has also been found that the ticket canvasser is working according to his will and pleasure and there is neither a contract of employment nor there is control or supervision nor there is any obligation on the part of the ticket canvassor to attend the duty regularly. 12. The Labour Court also found that the workman is only a ticket canvassor right through and it has also been pointed that the first respondent-management had not given any appointment order nor there is any agreement or service contract between the first respondent and the writ-petitioner even in respect of the said ticket canvassing. As seen from the notice of the management the writ-petitioner was never appointed as a ticket canvassor and there was no such post of ticket canvassor in the first respondent-Corporation. 13. On the evidence let in by either side, the Labour Court while disbelieving the case of the writ-petitioner held that the writ-petitioner is not a workman and he was not in the employment of the first respondent-Corporation and there is no relationship of employer and employee. On the finding of fact recorded by the Labour Court and on a consideration of oral and documentary evidence, which findings, this Court will not in any manner be justified in interfering unless perversity or misdirection or illegality is pointed out. 14. It is not as if this Court exercises appellate jurisdiction but it exercises power of judicial review with respect to the award passed by the second respondent Labour Court. The learned counsel or the petitioner despite his spending considerable time and straining himself is unable to print out any perversity or material misdirections or illegality in the findings recorded by the Labour Court. The findings recorded by the Labour Court are not liable to be interfered as the findings are well considered and they are supported by reasonings. 15. The learned counsel or the petitioner despite his spending considerable time and straining himself is unable to print out any perversity or material misdirections or illegality in the findings recorded by the Labour Court. The findings recorded by the Labour Court are not liable to be interfered as the findings are well considered and they are supported by reasonings. 15. The power of judicial review not being an appeal from a decision, but a review of the manner in which the decision has been arrived at, this Court while exercising the power of judicial review has to only see as to whether the second respondent Labour Court considered the entire material and followed the principles established by law as well as the rules of natural justice and once it is found that the second respondent had considered the entire materials which are relevant and it has been accepted, it is not the function of this Court exercising jurisdiction under Article 226 to review the materials and arrive at an independent finding in the materials. 16. This Court finds that on the findings recorded by the second respondent Labour Court no interference is called for in any view of the matter. 17. The question whether a person is a workman or not is a finding of fact and when the Labour Court has on a consideration of the evidence come to a conclusion as regards the functions that were actually being performed by an employee the High Court will not interfere with the said conclusions. 18. In Andhra Scientific Co. Ltd. Vs. A. Seshagiri Rao and Another, AIR 1967 SC 408 , the Apex Court held thus at p. 119 of LLJ: "What functions were actually being performed by the employee is a question of fact and the High Court had on a consideration of the evidence come to a conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of workman in Section 2(s) of the Act the High Court would not interfere under Article 226 in cases where there is clear error on face of the record." 19. The learned counsel for the contesting respondent also contended that the ticket canvasser like any other person in charge of sales promotion will not fall under the definition of workmen. The learned counsel for the contesting respondent also contended that the ticket canvasser like any other person in charge of sales promotion will not fall under the definition of workmen. The learned counsel referred to the decision of the Apex Court in H.R. Adyanthaya Vs. Sandoz (India) Ltd., etc. etc., (1994) 5 SCC 737 , wherein their Lordships of the Supreme Court held that the work of sales promotion employee will not satisfy the expression "workman" and it is distinct from the expression "workman" as defined in Section 2(s) of the Industrial Disputes Act. 20. The learned counsel for the first respondent also relied upon the pronouncement of the Apex Court in T.P. Srivastava Vs. National Tobacco Co. of India Limited, (1992) 1 SCC 281 wherein it has been held that salesman employed for canvassing and promoting sales is not a workman. 21. In the present case also, the first respondent-Transport Corporation had merely stated that the writ petitioner was a "canvasser" a self-employed person and no relationship of employer and employee existed at any point of them. It was also established that the writ-petitioner had not been posted nor he had been working as a time-keeper and his claim in this respect had also been negatived by the Labour Court. 22. On the findings, the Labour Court rightly held that the writ-petitioner, is "a ticket canvasser" and he is not a workman and there existed no relationship of employer and employee. In that view it has been further held that the writ-petitioner is not entitled to any relief, much less reinstatement. 23. The decision relied upon by the learned counsel for the writ-petition in W.P.No.8494 of 1984 (supra), has to be confined to the facts of the said case and has no application to the facts of the present case. As already pointed out the petitioner had miserably failed to establish that he is a "workman" and that there existed the relationship of employer and employee and therefore, the Labour Court rightly held that the claimant is not entitled to any relief. 24. In this writ petition, this Court holds that no interference is called for with respect to the findings recorded by the Labour Court. This Court will not be justified in interfering with the findings recorded by the Labour Court in the absence of any perversity or illegality or misdirections. 25. 24. In this writ petition, this Court holds that no interference is called for with respect to the findings recorded by the Labour Court. This Court will not be justified in interfering with the findings recorded by the Labour Court in the absence of any perversity or illegality or misdirections. 25. In the circumstances the writ petition fails and it is dismissed, but without costs. Consequently, the connected writ miscellaneous petition is also dismissed.