Pandiyan Roadways Corporation Ltd. v. The Principal Labour Court & Others
2003-04-04
K.RAVIRAJA PANDIAN, R.JAYASIMHA BABU
body2003
DigiLaw.ai
Judgment :- K.RAVIRAJA PANDIAN, J. In this appeal, the order of the learned single Judge dismissing the writ petition filed by the Tamil Nadu State Transport Corporation by confirming the award of the Labour Court in I.D.No.134 of 1988 dated 3.12.1991, wherein the reference made by the Government in G.O.Ms.No.593 Labour Department dated 29.3.1988 for adjudication as to whether the non-employment of Thiruvalargal M.Dharman, N.Muthupackkir, K.Ramesh and A.Rajasekaran is justified, if not to what relief they are entitled and to the relief if any in terms of money which can be so computed has been adjudicated and answered in the negative in favour of the employees/ respondents 2 to 5 herein and further direction was given to pay the time scale with which the other employees were absorbed under 18(1) settlement from 1.4.1988 by the appellant Corporation. 2. In the industrial dispute before the Labour Court, it is the case of the respondents 2 to 5 that they were engaged in the appellant Transport Corporation for the job of bus body cleaning at the rate of 60 paise per bus. The remuneration was paid to them weekly on the basis of number of buses cleaned per day. The work was systamised into three shifts. The respondents 2 to 5 were put on work in one of the three shifts by rotation and they were required to report punctually at the work spot. The respondents 2 and 4 were working for more than 5 years and the respondents 3 and 5 were working for more than four years and they were denied employment from 6.12.1980, 31.7.1981, 2.2.1981 and 27.12.1980 respectively orally. Hence the non-employment is illegal. 3. The dispute so raised was defended by the appellant herein by admitting the engagement of the respondents 2 to 5 to do bus body cleaning at the rate of 60 paise per bus, however contended that they were engaged on casual basis as and when the exigencies demanded. After the work was completed, the workmen were at liberty to do any other work and they were not bound to report for duty daily. There was also no fixed hours of work and the management could not enforce the attendance on the respondents 2 to 5 on daily basis. There was no employer and employee relationship between the appellant and the respondents 2 to 5.
There was also no fixed hours of work and the management could not enforce the attendance on the respondents 2 to 5 on daily basis. There was no employer and employee relationship between the appellant and the respondents 2 to 5. Since the respondents 2 to 5 were not required, they were not given any work beyond 6.12.1980, 31.7.1981, 2.2.1981 and 27.12.1980 respectively. 4. The Labour Court after taking into consideration the materials placed and also the oral evidence adduced before it passed an award holding that the non-employment was unjustified and further directed the appellant to pay the scale to the respondents 2 to 5 with which the other employees, who were doing the very same work as on August 1980 and have been absorbed under 18(1) Settlement with effect from 1.6.1986 and the respondents are eligible to receive the arrears of pay from 1.4.1988, a date after the date of reference. The award of the Labour Court was challenged before this Court by filing writ petition by the appellant herein on the ground that the award is beyond the reference made by the Government and the Labour Court has committed an error in fixing the time scale to the respondents as if they are permanent workers, which was also assailed on the ground that the settlement under Section 18(1) of the Act is not applicable to the respondents. 5. In the writ petition, the award against the 5th respondent has not been agitated for the reasons best known to the appellant. The learned single Judge after taking note of the documents marked on behalf of the workmen, viz., Exs.W.1, W.24 and W.25 which have been marked to prove that the respondents 2 to 4 were working for a continuous period of two years commencing between from the year 1976 to 1979 and also the oral evidence adduced by all the three workmen and considering the nature of the work they were doing found that the respondents 2 to 4 proved that they were paid 60 paise for cleaning each bus during the relevant period and it was also found proved that the respondents' names, details regarding registration and route number of the buses, which they were cleaning were noted in a book and at the end of the week, they were paid wages. 6.
6. The learned Judge has also pointed out that even though the respondents 2 to 4 specifically deposed regarding their nature of work and the period of work for the reasons best known to the Management none were examined on the side of the management to repudiate the same and ultimately found that in the light of the factual position, it was not open to the appellant to contend that the respondents were employed only casually in terms of Section 2E of the Standing Orders, which has been marked as Ex.W34. Considering the nature of the work, the respondents 2 to 5 performed, which has to be performed every day in the interest of convenience and safety of the passengers of the bus confirmed the finding of the Labour Court that the employment is permanent in nature and also further taking into consideration of Section 18(1) Settlement though made subsequently absorbing several persons, who were performing the same work that was performed by the respondents herein in a permanent cadre ultimately found that in the absence of compliance with Section 25F of the Act, finding arrived at by the Labour Court that the termination of the respondents 2 to 5 is unjustified is correct, and further held that the Labour Court is justified in awarding wages as provided in Ex.W17, the Section 18(1) Settlement and there is no infirmity in granting backwages from 1.4.1988. 7. Before us, the very same contentions, which were raised before the learned single Judge have been once again raised. We are of the view that no exception could be taken to the finding arrived at by the Labour Court, which has been confirmed by the learned single Judge. The reason is that except the statement in defence by the Management, the Management has not produced any material nor adduced any evidence to support their case. On the side of workmen as many as 34 documents were marked and all the three workmen, who have contested the writ petition have deposed before the Labour Court.
The reason is that except the statement in defence by the Management, the Management has not produced any material nor adduced any evidence to support their case. On the side of workmen as many as 34 documents were marked and all the three workmen, who have contested the writ petition have deposed before the Labour Court. In the absence of any contrary evidence, the Labour Court has taken into consideration the materials placed before it and the oral evidence of the workmen to come to the conclusion that the nature of work i.e., the work of cleaning of the bus body is continuous and perennial in nature and the respondents 2 to 5 were working in shift and that there are materials to prove the work done by the 4th respondent under Ex.W1 for the period from 16.6.1977 to 15.1.1979. Ex.24 Note book showing the work done by Ramesh, the third respondent from 27.2.1976 to 6.11.1977 and Ex.W25 note book showing the work done for the period from 9.11.1977 to 14.1.1979. The respondents 2 to 4 have also tendered evidence corroborating their claim in the industrial dispute as W.W.1 to W.W.3. On the basis of the materials adduced before it, the Labour Court has come to the conclusion that the respondents were in employment for more than the prescribed period and the nature of work is also continuous and the respondents are entitled to protection under Section 25F of the Act. On the basis of the finding arrived, the Labour Court has come to the conclusion that the non-employment is unjustified and also granted the consequential relief. 8. It is well settled that a writ can be issued for correcting the errors of jurisdiction committed by the inferior Court or Tribunal; these are cases, where orders are passed by the inferior Courts or Tribunal without jurisdiction or in excess of it or as a result of failure to exercise the jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it the inferior or Tribunal acts illegally or improperly. The writ jurisdiction is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.
The writ jurisdiction is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact. The finding of fact recorded by the tribunal or inferior courts cannot be challenged in writ proceedings on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or insufficiency of evidence led on a point and inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated in writ proceedings. (vide the Constitution Bench Judgment in SYED YAKOOB VS. K.S.RADHAKRISHNAN AND OTHERS ( 1964 (5) SCR 64 = AIR 1964 SC 477 ) 9. The learned Judge has specifically pointed out that the appellant has admitted the fact that the respondents 2 to 5 were engaged by them as bus body cleaners To that effect there is evidence in the form of documents Exs.W.1, W.24 and W.25 and also the deposition of W.W.1 to W.W.3. Even the evidence of the respondents that they could abstain from duty only after obtaining prior permission from the appellant has also not been repudiated by the management. When that is the position, the finding arrived at by the labour Court and confirmed by the learned single Judge that the non-employment is illegal cannot be legally complained of. 10. With regard to the other contention that the Labour Court has directed for payment of scale pay is beyond the jurisdiction of the reference cannot also be countenanced. While granting the benefit under the reference, the Labour Court has not exceeded the jurisdiction in directing payment of scale of pay in the present case. After having come to the conclusion that the non-employment is illegal, necessarily the consequential relief has to be granted by the Court by computation of money relief.
While granting the benefit under the reference, the Labour Court has not exceeded the jurisdiction in directing payment of scale of pay in the present case. After having come to the conclusion that the non-employment is illegal, necessarily the consequential relief has to be granted by the Court by computation of money relief. In this case, the nature of the work is cleaning of bus for which the remuneration has been paid on piece rate basis, which remuneration having regard to the finding that the non-employment is illegal cannot be fixed with arithmetical precision in order to give effect to the award. That computation has been made on the basis of 18(1) settlement arrived at by the appellant, by which persons who had performed the very same duty, which was performed by the respondents 2 to 5 during August 1980 were absorbed and their wages were fixed. If the non-employment is not justified it is deemed that the respondents were in employment during the relevant period. In such circumstances, the Labour Court has taken into consideration the wage rate at the rate of Rs.450 per mensem fixed in Settlement under Section 18(1), which cannot be said to be illegal. 11. Reference can be had to the judgment of the three Judges Bench of the Supreme Court in WORKMEN OF M/S. WILLIAMSON MAGOR & CO LTD. vs. M/S. WILLIAM MAGOR & CO. LTD AND ANOTHER( 1982 (1) LLJ 33 SC) , wherein the Supreme Court has held as follows: "The Tribunal categorically held that the actions of the Management were unjustified. It expressed its inability to give any relief to the workmen in the case. We do not think that the Tribunal should be so powerless. The Industrial Tribunals intended to adjudicate industrial disputes between the Management and the workmen, settle them and pass effective awards, in such a way that industrial peace between the employers and the employees may be maintained so that there can be more production to benefit all concerned. For the above purpose, the Industrial Tribunal as far as practicable should not be constrained by the formal rules of law and should avoid inability to arrive at an effective award to meet justice in a particular dispute...." 12. In the case of M/S. AGRA ELECTRIC SUPPLY COMPANY LIMITED VS.
For the above purpose, the Industrial Tribunal as far as practicable should not be constrained by the formal rules of law and should avoid inability to arrive at an effective award to meet justice in a particular dispute...." 12. In the case of M/S. AGRA ELECTRIC SUPPLY COMPANY LIMITED VS. WORKMEN ( 1983 (1) LLJ 304 SC) the legality and justification of the retirement of two workmen was referred for adjudication of Tribunal. The Tribunal awarded gratuity based on the practice prevalent in many industries in the region, even though parties were not in issue on that question. When the contention that the payment of gratuity was not covered by the terms of reference and that the award was in breach of natural justice, the Supreme Court has held that the question referred may be dichotomised. Was the retirement of the workmen legal and justified? If not, what compensation was payable to them? The first limb of the reference contains the pregnant impression "justified". It is one thing to say, speaking in terms of industrial jurisprudence that an action is legal. It is another thing to say that it is justified. When the reference is comprehensive enough to cover both these concepts, it is within the jurisdiction of the Tribunal to investigate into the question whether the retirement is legal and if legal, whether it is also justified. In the ordinary law of contracts, when a thing done is legal there is an end of the matter but in industrial law the rigid rules of contract do not govern the situation and an amount of flexibility in the exercise of powers taking liberties with the strict rights of parties is permitted to tribunals. The approach of the Tribunal is informed by social justice when it makes a direction for payment of gratuity. 13. Learned counsel for the appellant relied on the judgments in L & T MCNEIL LTD. VS. LABOUR COURT, MADRAS AND ANOTHER (2001 (3) LLN 807); PRAKASH COTTON MILLS PVT. LTD., VS. THE RASTHRIYA MILL MAZDOOR SANGH ( 1987(1) LLJ 97 SC ) to contend that the regularisation of daily rated workmen is a policy matter to be decided by the appellant and it is not a matter of course. The contention as well as the reliance is mis-placed and not relevant to the facts of the present case.
LTD., VS. THE RASTHRIYA MILL MAZDOOR SANGH ( 1987(1) LLJ 97 SC ) to contend that the regularisation of daily rated workmen is a policy matter to be decided by the appellant and it is not a matter of course. The contention as well as the reliance is mis-placed and not relevant to the facts of the present case. However, when a regularisation policy has been taken by the appellant Corporation in respect of several other workers, who were doing the the same duty on the crucial date of August 1980, which the respondents were doing before their non-employment and the Labour Court having found that the non-employment is illegal, the order of the Labour Court granting the scale of pay, which has been granted to other similar workers under 18(1) settlement cannot be said to be illegal. 14. L & T MCNEIL LTD. VS. LABOUR COURT, MADRAS AND ANOTHER (2001 (3) LLN 807) was a case, where the award of the Labour Court ordering compensation in lieu of reinstatement of casual workers, whose services were terminated had been put in issue. In that case also this Court has held that the Labour Court has appreciated evidence that the parties had placed before it and after having applied it's mind to the fact has granted the relief, which it thought was appropriate. This Court held that some of the observations made by the Labour Court, however, are not quite in order that its observation that S.25F of the Industrial Disputes Act has not been violated may not be warranted, as the employer had not taken the specific stand that the workmen had not worked for 240 days. This Court upheld the order granting compensation in lieu of reinstatement. 15. Learned counsel for the appellant also relied on the judgment in PRAKASH COTTON MILLS PVT. LTD., VS. THE RASTHRIYA MILL MAZDOOR SANGH ( 1987(1) LLJ 97 SC ) to contend that Section 25C of the I.D.Act excludes a badli workman or a casual workman from the benefit of compensation in case of lay off. That was a case, wherein the right of a badli workman to claim compensation on account of closure was considered. That is not the issue here. 16. There is no illegality or irregularity in the order of the learned single Judge. The appeal fails and is dismissed. Consequently, the connected W.A.M.Ps are closed. No costs.