1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.12.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.497 of 2011 M.P.(MD).Nos.1 to 3 of 2011 The Management Q849, Aruppukottai Industrial Weaver's Co-operative Society Limited, Aruppukottai, Virudhunagar District. . .. Petitioner Vs. 1.A.Mariammal 2.The Labour Court, Madurai. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorari to call for the records relating to the award of the second respondent Labour Court passed in I.D.No.158 of 2002, dated 30.05.2008 and quash the same. For Petitioner :Mr.V.O.S.Kalaiselvam For Respondent :Mr.T.Ravichandran (for R1) ORDER The petitioner is the management of Aruppukottai Industrial Weaver's Co-operative Society Limited represented by its Special Officer. In this writ petition, they have challenged an award passed by the second respondent, the Labour Court, Madurai, holding that the first respondent should be given a loom for doing weaving work. In respect of other relief the Industrial Dispute was dismissed. 2. The writ petition when came up on 12.01.2011, notice was issued to the respondents. In the application for interim stay, no orders have been passed. In the meanwhile, the workman has filed an application under Section 17-B of the Industrial Disputes Act (hereinafter referred as the Act) for the grant of monthly last drawn wages till the disposal of the writ petition in M.P.(MD).No.3 of 2011 together with the supporting counter affidavit dated 10.03.2011. 3. It was the case of the first respondent workman that she was employed as a weaver in the petitioner's society for about 40 years. She was paid wages on piece rate basis, which is worked out to Rs.800/- per month. She was not been paid bonus and arrears of wages from 2001. She along with others submitted a petition to the District Collector, Virudhunagar on 08.02.2002. Since she was affected by disc prolapse, she availed https://hcservices.ecourts.gov.in/hcservices/ 2 leave from 23.03.2002 to 25.03.2002. When she went to work on 26.03.2002, the Special Officer had denied her work. 4. Thereafter, she raised an industrial dispute before the Labour Officer, Virudhunagar. The conciliation officer gave a failure report on 14.06.2002. Thereafter, she filed a claim statement before the Labour Court and the dispute was taken on file in I.D.No.158 of 2002. 5. The management filed a counter statement during September 2002. In the counter statement, the management denied the status of the workman stating that the workman was a member of the Society and she holds a share in the society, though only some persons were engaged directly for maintaining the office. The workers have their own office bearers and they alone run the society. Supply of yarn and payment for the woven clothes are done by the members of the elected board. Therefore, there was no supervision in control. Hence the dispute is not maintainable. 6. Before the Labour Court, the workman examined herself as WW1. On her side, 7 documents were filed and marked as Ex.W1 to Ex.W7. On the side of the management no documents were filed and no oral evidence was let in. It is in that view of the matter, the Labour Court partly allowed the Industrial Dispute and directed the management to give work to the workman. It found that the weaver is a workman coming within the meaning of Section 2(s) of the Industrial Disputes Act. Due to her absence, the management cancelled her membership in the Society. Therefore, the Labour Court directed her reinstatement with continuity of service, but without backwages. 7. The petitioner approached the Court after a long delay. From the date of the award 30.05.2008 to the date of filing of the writ petition i.e. 11.01.2011, there is a delay of 2 1/2 years. The management merely stated there was a huge loss suffered by the Society and since there was no permanent Special Officer, they could not file the writ petition. In fact, they marked only a typed copy of the Award and they did not even produce a certified copy of the award for reasons best known to them. However, this Court is not inclined to accept the case of the management holding that there was a genuine cause for the delay in moving this Court. The writ petition is liable to be rejected on grounds of delay. 8. Even otherwise, before the Labour Court they did not let in any evidence or produce any documents in support of the case. Therefore, they cannot be here to say that the award suffers due jurisdictional error. 9. Reliance was placed upon the judgments of this Court in i) 2003(3) L.L.N.674 (M.W.C. Prodn & Sales Society Limited Vs. R.P.F. Commissioner), ii) 2003 (3) L.L.N.684 (B.P.CORPN. LTD V. Petroleum Employees Union) and iii) 2010 (4) L.L.N.699 (L.L.N.MGMT, Dindigul L.P.W. Inds. Co-Op Socy. V. C.A.M.W. Act). It was contended that members of a Cooperative Society are not eligible to get minimum wages or Provident Fund on account of there being no employer-employee relationship. https://hcservices.ecourts.gov.in/hcservices/ 3 10. Such a question cannot be gone into, unless the issue was raised before the proper forum and evidence were let in to that effect. The question whether a person is a 'workman' coming within the meaning of Section 2(s) of the Act is not a pure question of law, but it is a question of fact. Hence, appropriate evidence should be let in before the Labour Court. Not only the management failed to do so, but also they have approached this Court after a period of 2 1/2 years from the date of the award. 11. The burden of proof whether the workman comes within the meaning of Section 2(s) of the Act lies on the party setting up the plea. Such a question has to be decided by the Tribunal on the basis of evidence on record and such finding of the Tribunal normally will not interfere with by this Court by exercising the power under Article 226 of the Constitution as held by the Supreme Court in Workmen of Nilgiri CO.op. Mkt.Society Limited Vs. State of Tamil Nadu & Ors reported in 2004 3 SCC 514. 12. In view of the above, the writ petition is misconceived and lacks on merits and the same is liable to be dismissed on grounds of laches as well as on merits. Accordingly, the writ petition is dismissed. Consequently, the connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar(Records) /True Copy/ Sub-Assistant Registrar To The Labour Court, Madurai +One cc to Mr.T.Ravichandran, Advocate, SR.No.44970 +One Cc to Mr.V.O.S.Kalaiselvam, Advocate, SR.No.45432 jikr rl/4c – 2.1.2012 Pre Delivery Order made in W.P.(MD)No.497 of 2011 M.P.(MD).Nos.1 to 3 of 2011 21.12.2011 https://hcservices.ecourts.gov.in/hcservices/