IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2010 CORAM: THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.A.No.3688 of 2002 Medical Superintendent IRT, RT Sanatorium perundurai – 638 053. .... Appellant/ Petitioner Vs. 1. The Presiding Officer Labour Court, Salem 2. K.Jeevanandam .... Respondents/ Respondents Prayer: Writ Appeal filed against the order passed by the single Judge dated 16.7.2002 made in W.P.No.14917 of 1995 Writ Petition filed under Article 226 of Constitution of India to issue a writ of certiorari calling for records relating to award dated 7.5.1985 in I.D.No.176/92 on the file of Labour Court, Salem the 1st Respondent herein and quash the same. For Appellant : Mr.T.Arulraj For Respondent : Mr.V.Ajoy Khose No.2. JUDGMENT R.BANUMATHI,J. Aggrieved by the order of single Judge in W.P.No.14917 of 1995 confirming the order of Labour Court, Salem in I.D.No.176 of 1992 and thereby confirming direction to reinstate the 2nd Respondent and payment of back wages of Rs.10,000/-, IRT Sanatorium, Perundurai has filed this Appeal. 2. The case of 2nd Respondent is that he was employed as a Cook by the Appellant from about 1982 continuously without any break in the Hospital and his services were also regularised for other work https://hcservices.ecourts.gov.in/hcservices/ in the kitchen. The case of 2nd Respondent is that without any valid reason he was terminated and at the time of termination he was paid wages at the rate of Rs.9/- per day and wages were paid once in a week. Further case of 2nd Respondent is that he was working since long time and eligible for conferment of permanent status as per the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act (Tamil Nadu Act No.XLVI of 1981). Alleging that he was stopped from work from 10.8.1988, the 2nd Respondent raised an Industrial Dispute in I.D.No.176 of 1992 claiming reinstatement with back wages i.e., at the rate of Rs.9/- per day. 3. Appellant - Management resisted the Dispute denying status of 2nd Respondent as workman and contending that he was employed as Contractor, who has undertaken the work to supply workmen under contract basis. According to Appellant, 2nd Respondent never worked as a Cook on daily wage basis and he was stopped from the month of June 1998 from taking contract work. The Management further pleaded that the 2nd Respondent along with various other persons bid for supply of labour on contract at particular rate and they have also received contract on labour charges as per the quotations and therefore the 2nd Respondent cannot seek for any reinstatement as a Cook. 4. Based upon oral and documentary evidence, Labour Court arrived at the conclusion that the 2nd Respondent was not a workman under contractor and that he was employed as a workman. Finding that the 2nd Respondent was terminated without any justification, Labour Court ordered reinstatement with back wages of Rs.10,000/. 5. Challenging the award of Labour Court, Management filed writ petition in W.P.No.14917 of 1995. Confirming the award of Labour Court, learned single Judge held that there are overwhelming documentary evidence to show that the 2nd Respondent was employed as temporary workman and that at no point of time, he was engaged as a contractor. The learned single Judge further held that when Labour Court arrived at a factual finding that the 2nd Respondent was only a workman and not a contractor, such factual finding cannot be interfered with. 6. The learned counsel for Appellant Mr.Arurlraj submitted that the Labour Court erred in overlooking Exs.M.5, M.16 and M.24 – quotations given by the 2nd Respondent, which would belie his own contention. It was further argued that the 2nd Respondent was only engaged for supplying labour for doing sundry works and Management has produced records to show that the 2nd Respondent was only a contractor. https://hcservices.ecourts.gov.in/hcservices/ 7. Placing reliance upon number of decisions, learned counsel submitted that when findings of Labour Court are frivolous, by exercising jurisdiction under Article 226 of Constitution of India, the High court can certainly interfere and while so the learned single Judge was not right in confirming the award of Labour Court on the ground that the factual findings cannot be interfered with. 8. Learned counsel for 2nd Respondent has submitted that based upon evidence Labour Court has arrived at the conclusion that Respondent No.2 was not a contractor and that he was a workman under the Appellant. Such factual finding cannot be interfere with. It was further submitted that the judgment of STATE OF KARNATAKA VS. UMADEVI ((2006) 4 SCC 1) would not apply to matters pertaining to labour disputes and unfair labour practice. In support of his contention, learned counsel placed reliance upon (2002) 3 SCC 547 (COMMISSIONER OF CENTRAL EXCISE, DELHI VS. MARUTI UDYOG LTD.), 2009 (1) L.L.N. 121 (KANPUR ELECTRICITY SUPPLY COMPANY LTD.VS. S.MIRZA) and 2009(8) SCC 556 (MAHARASHTRA STATE ROAD TRANSPORT CORPORATION AND ANOTHER VS. CASTERIBE RAJYA PARIVAHAN KARMACHARI SANGHATANA). 9. In Kanpur Electricity Supply Company case ((2009) 1 LLN 121), the Supreme Court has held that the burden to prove that the claimant was in the employment of a particular management, primarily lies on the person who claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine the employer-employee relationship. It is essentially a question of fact to be determined by having regard to the cumulative effect of the entire material placed before the adjudicatory forum by the claimant and the management. 10. Applying the ratio of the above principles, we have considered the present case. The case of 2nd Respondent is that he was working as a Cook and was also attending to other works with the Appellant Institution. In his evidence, W.W.1 has stated that wages were paid to him after getting his signature in the Muster Roll and at no point of time he worked as a contractor. Ex.W.7 dated 21.10.1986 is the Certificate issued by Medical Superintendent of the Appellant RT Sanatorium stating that the 2nd Respondent was engaged as a Muster in RT Sanatorium for about two years. Evidence of W.W.1 is amply strengthened by the documentary evidence Ex.W.2 - series of letters addressed to the 2nd Respondent while he was working in the kitchen, RT Sanatorium, Ex.W.3- notice issued by the 2nd Respondent to the Appellant, Ex.W.6 – acknowledgement card and Ex.W.7 – Service Certificate issued by the Appellant to the 2nd Respondent. . 11. To substantiate the plea that the 2nd Respondent was engaged only as a contractor for supply of labour, Management https://hcservices.ecourts.gov.in/hcservices/ placed reliance upon number of quotations submitted by various persons including 2nd Respondent - Exs.M.4 to M.35 and Ex.M.36 - comparative statement. Much emphasis was laid upon Ex.M.5 dated 20.5.1988 wherein the 2nd Respondent has agreed to engage workers for Rs.300/- per week from 22.5.1988 to 27.5.1988. Drawing our attention to Exs.M.5, M.16 and M.24, the learned counsel for Appellant submitted that the Labour Court erred in brushing aside the above documentary evidence, which would amply show that the 2nd Respondent was engaged as a contractor to supply labour to perform the work like winnowing rice, cereals and for doing other work in the kitchen of the Hospital. This said contention was also raised before the Labour Court and also before the learned single Judge. The Labour Court and learned single Judge pointed out that apart from Exs.M.5, M.16 and M.24, no other quotations submitted by the 2nd Respondent were produced by the Management. It was also pointed out by the Labour Court that all the quotations produced by the Management were written by one person by name Muruganandam. As rightly pointed out by learned single Judge, every contractor would be preparing the quotation in their own hand or they will get quotations written by some body else. It was not explained by the Management as to how the quotations Exs.M.4 to M.35 were written by one and the same person. Referring to the contentions raised on behalf of the workman that all the documents were prepared for the purpose of the case, the Labour Court raised doubts about Exs.M.4 to M.35. In our considered view, the Labour Court rightly raised doubts about the genuineness of quotations Exs.M.4 to M.35. Based upon Exs.M.5, M.16 and M.24, it cannot be concluded that 2nd Respondent was only a contractor. 12. In the counter filed by the Management in I.D.No.176 of 1992, the Management averred that "the applicant has not been in continuous service of the Respondent for six years as alleged and he used to come to the Institution for doing contract work at the relevant point of time. Even though it has been stated that the 2nd Respondent used to come to the Institution for contract work apart from Exs.M.5, M.16 and M.24 quotations, the Appellant Management has not produced any other document to show as to who were doing the sundry work like winnowing rice, cereals and cleaning the cooking vessels during the relevant period. No voucher obtained from other contractors was produced by the Management. 13. The Management has also produced Exs.M.38, M.39, M.41 to 43 and M.45 to 49 vouchers. Only Ex.M.47 pertains to 2nd Respondent for receipt of Rs.390/-. In the Labour Court, 2nd Respondent has filed I.A.No.237 of 1992 requesting for production of record for daily wages, vouchers for payment of salaries, books and other records. As rightly pointed out by the Labour Court and learned single Judge, if the 2nd Respondent worked as a contractor in the years 1986, 1987 and 1988, the Management would have produced https://hcservices.ecourts.gov.in/hcservices/ quotations, vouchers for payment of money or cheque, But that was not to be so. In (2006) 1 SCC 106 (R.M.YELLATTI VS. ASSTT. EXECUTIVE ENGINEER), the Supreme Court has held that in cases involving daily wages, workman can only call upon employer to produce before Court Nominal Muster Roll for the given period and in appropriate cases could draw adverse inference. When the 2nd Respondent has adduced evidence showing that he has been working in the kitchen from 1982, it is for the Management to have produced necessary documents to show that the 2nd Respondent was only a contractor. The Management did not come forward to produce documents and in our considered view Labour Court has rightly drawn adverse inference against the Appellant Management for non- production of Vouchers for payment of daily wages. 14. The Management has also relied upon Exs.M.53 to 83 – pay bill vouchers to contend that the 2nd Respondent was not a worker and therefore his name is not found in Exs.M.53 to 83 - pay bill vouchers. As rightly pointed out by Labour Court, 2nd Respondent was engaged as a temporary workman and his name would not have been found in the Pay Bill Vouchers, which contains the Pay Bill Vouchers of other permanent employees. 15. By oral and documentary evidence, the 2nd Respondent has shown that he has been working in the Appellant Institute in the preceding years. Learned counsel for the Appellant placing reliance upon Umadevi's case, submitted that the Constitution Bench has clearly laid down that there cannot be a direction by the Courts for regularisation of daily wage/ temporary/contractual employees appointed in violation of Constitutional Scheme. It was therefore contended that in any event, employment of 2nd Respondent on daily wage would not confer any right of permanent employment and there cannot be any direction for reinstatement. 16. Since the 2nd Respondent has raised an Industrial Dispute and the Labour Court has ordered reinstatement and found that termination of the 2nd Respondent is in violation of the provisions, the ratio of decision of Umadevi's case is not applicable. In 2009(8) SCC 556 (MAHARASHTRA STATE ROAD TRANSPORT CORPORATION AND ANOTHER VS. CASTERIBE RAJYA PARIVAHAN KARMACHARI SANGHATANA), the Supreme Court held that where there is unfair labour practice and termination of labour in violation of the provisions, decision in Umadevi case would not affect power to order regularisation/permanency. In the said case before the Apex Court, Appellant Corporation indulged in unfair labour practice of engaging persons on contract basis for cleaning at Rs.1.50 per bus, even though the post of cleaner existed. In such facts and circumstances of the case, the Supreme Court has held that the persons engaged on contract basis are entitled to regularisation. Once the termination is held to be in violation of the provisions, https://hcservices.ecourts.gov.in/hcservices/ the Labour Courts are empowered to issue positive directions to an erring employer. 17. When the finding of the Labour Court is based upon analysis of oral and documentary evidence, the High Court will not interfere with the findings of fact unless shown to be perverse. After referring to various documents vis-a-vis findings of Labour Court, the learned single Judge rightly confirmed the award passed by the Labour Court and we do not find any reason warranting interference with the order of the learned single Judge. 18. In the result, the writ appeal is dismissed. However, there shall be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. usk Copy to: The Presiding Officer Labour Court, Salem 1 cc to Mr.T. Arulraj J. James, Advocate, Sr.10306 1 cc to Mr.V. Ajay Khose, Advocate, SR. 9196 W.A.No.3688 of 2002 RSI (CO) kk 23/2 https://hcservices.ecourts.gov.in/hcservices/