IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 10.03.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. Nos.13565 & 13566, 14527, 14305 to 14308 of 2002 AND W.P.M.P.Nos.18242 & 18244 of 2002 & 22151 of 2003 The Management of V.G.P.Golden Beach Resorts Ltd., Injambakkam, Chennai – 600 041. .. Petitioner in W.P.Nos.13565 & 13566 of 2002 Versus The Presiding Officer Industrial Tribunal Chennai – 600 104. . 1st Respondent in WP.No.13565 & 13566/02 Bharatiya Employees Mazdoor Sangh Rep.by its President V.G.P.Golden Beach Resorts (Regd.) Injambakkam, Chennai – 600 041. ..2nd Respondent in WP.13565/2002 P.P. Manoharan C/o. A. Partha Sarathy, 282-N- Block, Annanagar East, Chennai 102. ..2nd Respondent In WP.13566/2002 W.P. Nos.13565 & 13566/2002: Petitions filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for records relating to award dated 12.10.2001 in I.D.No.137 of 1998 on the file of Industrial Tribunal, Chennai, the first respondent herein and quash the same. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. For Respondent-1 : Court For Respondent-2 : Mr.K.M.Ramesh * * * * * https://hcservices.ecourts.gov.in/hcservices/ WP.No.14527/2002: The Workmen, Rep By Bharatiya Employees Mazdoor Sangh, Rep By Its President, 282 N Block, Anna Nagar East, Chennai.102 ... Petitioner Vs 1 The Presiding Officer, Industrial Tribunal, Tamil Nadu, High Court Compound, Chennai.104. 2 The Management Of V.G.P. Golden Beach Resort Ltd., Injambakkam, Chennai.41 ... Respondents WP.No.14527/2002: Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records from the files of the 1st Respondent I.D.No.137 of 1998 and quash the impugned award dated 12.10.2001 made therein in so far as the Learned 1st respondent has rejected the claim of the petitioner except in the case of Thiru P. P Manoharan, to award costs. For Petitioner : Mr.K.M.Ramesh For Respondents : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. * * * * * S.R. Soma Sundaram ... Petitioner in WP.14305/2002 T.Bala Krishnan ... Petitioner in WP.14306/2002 A.S. Kanniappan ... Petitioner in WP.14307/2002 G.Seshadhri ... Petitioner in WP.14308/2002 vs 1 The Presiding Officer, Industrial Tribunal, Tamil Nadu, High Court Compound, Chennai.104. ... 1st Respondent In WP.No.14305 To 14308/2002 https://hcservices.ecourts.gov.in/hcservices/ 2 The Management Of V.G.P. Golden Beach Resort Ltd., Injambakkam, Chennai.41. ...2nd Respondent In WP.14305 To 14308/2008 WP.Nos.14305 to 14308/2002: Petitions filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for records from the files of the 1st Respondent in Complaint No.3, 2, 1 and 5 of 1999 respectively I.D.No.137 of 1998 and quash the impugned award made therein dated 12.10.2001 in so far as the Learned 1st respondent has denied to the petitioner the relief of reinstatement in service, with back wages, with continuity of service and with all other attendant and consequential benefits to award costs. For Petitioner : Mr.K.M.Ramesh For Respondents : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. * * * * * C O M M O N O R D E R Considering the fact that awards have been passed by way of a common order which is the subject matter of the Writ Petitions, all the Writ Petitions have been taken up together and a common order is passed. 2.For the sake of brevity, the petitioners in W.P.Nos.14527, 14305 to 14308 of 2002 are taken as the petitioners and the management who is the respondent in those cases and the petitioner in W.P.No.13565 and 13566 of 2002 are shown as the respondents. 3.The unsuccessful employees who raised the dispute before the Industrial Tribunal, Chennai, in I.D.No.137 of 1998 have filed Writ Petitions in W.P.Nos.14527, 14305 to 14308 of 2002. Similarly, the Management has filed Writ Petitions in W.P.Nos.13565 and 13566 of 2002, challenging the award passed in I.D.No.137 of 1998 and Claim No.4 of 1999 which have been allowed in favour of the employee. Facts in brief: 4.The petitioners in W.P.Nos.14527, 14305 to 14308 of 2002 and the second respondent in W.P.Nos.13565 and 13566 of 2002 were employees of the respondent in W.P.Nos.14305 to 14308 of 2002. The petitioners and the respondent in W.P.Nos.13565 and 13566 of 2002 are the Office Bearers of the Bharatiya Employees Union. https://hcservices.ecourts.gov.in/hcservices/ Orders of transfers have been passed against them by the respondents / Management. In pursuance to the failure of the conciliation effort, a dispute was raised by the petitioners herein, along with the second respondent in W.P.Nos.13565 and 13566 of 2002 before the second respondent in I.D.No.137 of 1998. During the pendency of the said dispute, the petitioners and the respondents in W.P.Nos.13565 and 13566 of 2002 were dismissed. Therefore, complaints have been made by the petitioners and the first respondent in W.P.Nos.13565 and 13566 of 2002 alleging that the termination order dated 12.11.1998 issued by the respondents being a total violation of Section 33 of the Industrial Disputes Act, 1947, they have to be reinstated with backwages, continuity of service with attendant benefits. 5.Before the Labour Court, five witnesses have been examined on behalf of the employees, who are the parties to the Writ Petitions herein. The Management examined one witness in M.W.1. Exs.W-1 to W-28 have been marked by the employees and Exs.M- 1 to M-29 have been marked by the Management. The Labour Court on examination of the statements filed by the parties, coupled with the evidence available on record, both oral and documentary, was pleased to order reinstatement with backwages and other benefits in so far as the second respondent in W.P.Nos.13565 and 13566 of 2002 is concerned and dismissed the same against others on the ground that, the petitioners in W.P.Nos.14305 to 14308 of 2002 are not workmen, within the purview of Section 2(s) of the Industrial Disputes Act, 1947, having discharged their duties in a supervisory capacity. The Labour Court also found on facts that the order of transfer was not legally valid and the consequential order of termination was also not correct. However, it has dismissed the claim petition filed by the petitioners herein on the ground of lack of jurisdiction. Hence, both the petitioners and the Management have come forward to file the present Writ Petitions before this Court. Submissions of the Petitioners: 6.Mr.K.M.Ramesh learned counsel appearing for the petitioners in W.P.No.Nos.14527, 14305 to 14308 of 2002 submitted that the findings of the Labour Court are perverse in holding that the petitioners are not workmen within the purview of Section 2(s) of the Industrial Disputes Act, 1947. The evidence of the petitioners have not been properly appreciated. The Labour Court has fixed the onus wrongly on the petitioners. The documents relied upon by the Management have not been put to the petitioners. Merely because the petitioners has signed the leave letters as the Head of the Department, it cannot be said that they were doing their work in a supervisory capacity. In support of his contention, the learned counsel has relied upon the judgments rendered by this Court in KUMARESAN, N. vs. PRESIDING OFFICER, LABOUR COURT AND ANOTHER [(2001) II LLJ 369] and in ARINGER ANNA PRIMARY https://hcservices.ecourts.gov.in/hcservices/ AGRICULTURAL CO-OPERATIVE BANK REP.BY ITS PRESIDENT vs. THE PRESIDING OFFICER, LABOUR COURT AND ANOTHER rendered in W.P.No.9162 of 2003 dated 20.08.2010. Therefore, the learned counsel submitted that the Writ Petitions filed by the petitioners will have to be allowed. 7.In so far as the Writ Petitions filed by the Management are concerned, the learned counsel submitted that the Labour Court has given a factual finding that the second respondent was working as a cook. The said finding has been given based upon the evidence of MW-1. The Labour Court also found no other material to hold that, the second respondent was discharging his duties in a managerial capacity. Therefore, the said finding on fact need not be interfered with. Submissions of the respondents: 8.Mr.S.Ravindran, learned counsel appearing for the respondents submitted that if the party approaches a forum seeking redressal of his grievance, it is for that party to establish the fact that the forum has got jurisdiction. Therefore, the onus is on the employees concerned to prove that they were not discharging the duties in a supervisory capacity. The Labour Court considering the entire evidence on record came to the conclusion that the petitioners were not workmen as defined under the Industrial Disputes Act. The Labour Court not only considered the evidence of the petitioners but also that of Management apart from the document evidence. Even the petitioners have admitted the fact that there were number of persons working under them. The documents marked have not been disputed, particularly signature made in the leave letters. Therefore, in such a situation, there is no necessity to question the petitioners on the said document when they are not in dispute. There was no cross-examination on the nature of works done by the petitioners in so far as the evidence of MW-1 is concerned. Hence, the learned counsel submitted that the Writ Petitions filed by the petitioners will have to be dismissed. 9.In so far as the Writ Petition filed in W.P.Nos.13565 and 13566 of 2002 are concerned, the learned counsel submitted that the Labour Court ought not to have considered the evidence of MW-1 in its entirety. It is settled principle of law that an evidence of a party has to be read as a whole. MW-1 has given evidence stating that the respondent No.2 was a chief cook and therefore under those circumstances, the Labour Court ought to have dismissed the claim petition against the second respondent as well. In support of his contention, the learned counsel for the petitioners has relied upon the judgment of the Honourable Apex Court in MUKESH K. TRIPATHI vs. SENIOR DIVISIONAL MANAGER, LIC AND OTHERS [(2004) 8 SCC 387] and a judgment of the Bombay High Court in UNION CARBIDE (INDIA) LTD. vs. D.SAMUEL AND OTHERS [1992 (2) L.L.N. 165]. Hence the learned counsel submitted that the Writ Petitions filed by the employees https://hcservices.ecourts.gov.in/hcservices/ will have to be dismissed and the two filed by the Management will have to be allowed. Discussion: 10.In so far as the Writ Petitions filed by the employees are concerned, the Labour Court found that as per Ex.M.1 which is the leave application of an employee, the petitioner in W.P.No.14307 of 2002 has singed the same as the Head of Department. But however, the leave application of the said petitioner was signed by some other Superior Officer under Ex.M-2. The leave applications of the petitioners in W.P.No.14305, 14306 and 14308 of 2002 have been marked as Exs.M-19, 27 and 16 respectively. They have been signed by their Superior Officer. It is pertinent to note that, Exs.M-19, 27 and 16 which are the leave applications of the subordinate employees, they have been signed by the Writ Petitioners mentioned above as the Heads of the Department. The said documents have not been disputed by the petitioners. No cross examination have also been made against the Management witness, regarding the same. Therefore, the mere fact that the leave letters of the subordinate employees have been signed by the petitioners as the Head of the Department itself would be a substantial evidence to show that, they have acted in the supervisory capacity. The petitioners have also admitted in evidence that there were persons working under them. Apart from the above said documentary evidence, the respondent also produced other documents which are correspondence between them and petitioners, indicating their nature of work that they acted in a supervisory capacity. Therefore, this Court finds based upon the above said documentary evidence available on record, coupled with the evidence adduced by the parties, that the Labour Court correctly came to the conclusion that the petitioners have not established the fact that they are workmen under the Industrial Disputes Act. 11.Coming to the Writ Petition filed by the Management in W.P.Nos.13565 and 13566 of 2002 are concerned, MW-1 in his evidence has stated that the second respondent has sanctioned the leave application of other employees. However, no such document has been marked. When MW-1 has stated in his evidence about a particular fact and said to be in possession of the documents in support of the same, the failure to mark the same would falsify the statement made. MW-1 further stated that he has seen the second respondent doing the work of a cook. It is settled position of law that an evidence given by a party by way of admission is the best evidence. Therefore, relying upon the evidence of MW-1 himself, coupled with the evidence given by the second respondent, the Labour Court gave a clear factual finding that, the second respondent is a workmen within the purview of the Industrial Disputes Act and not having any supervisional duties. The said finding being a question of fact, this Court does not find any reason to interfere with the same. https://hcservices.ecourts.gov.in/hcservices/ 12.Coming to the question of onus of proof as to whether an employee has been working in a supervisory capacity or not, the said position has been well settled by the judgment of the Constitutional Bench of the Hnourable Apex Court in H.R.ADYANTHAYA vs. SANDOZ (INDIA) LTD. [(1994) 5 SCC 737] wherein it has been held as follows: "These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation." 13.Following the ratio laid down by the Constitutional Bench of the Honourable Apex Court, in a subsequent pronouncement in MUKESH K. TRIPATHI vs. SENIOR DIVISIONAL MANAGER, LIC AND OTHERS [(2004) 8 SCC 387] it has been held as follows: "24.From a perusal of the award dated 28- 5-1996 of the Tribunal, it does not appear that the appellant herein had adduced any evidence whatsoever as regards the nature of his duties so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. The offer of appointment dated 16-7-1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer of the Corporation by no stretch of imagination can be held to be performed by an Apprentice." 14.Therefore, the above said ratio laid down by the Honourable Apex Court leaves no room for doubt that, the onus to prove that a workmen concerned is a worker or not is defined under Section 2(s) of the Industrial Disputes Act, 1947, lies on him and not the Management. 15.In the judgment of this Court in KUMARESAN, N. vs. PRESIDING OFFICER, LABOUR COURT AND ANOTHER [(2001) II LLJ 369], a learned single Judge of this Court found that the Labour Court made a mistake in relying upon the evidence, which is insufficient to https://hcservices.ecourts.gov.in/hcservices/ hold an employee as not an workmen. The learned Judge found that there was no material to prove the supervisory nature of the duties. It is further to be seen that the learned single Judge had no occasion to consider the judgments of the Constitutional Bench of the Honourable Apex Court rendered in H.R.ADYANTHAYA vs. SANDOZ (INDIA) LTD. [(1994) 5 SCC 737]. Further as discussed above, the said judgment is distinguishable on facts, since it was rendered based upon the materials available on record in that case. 16.The reliance made by the learned counsel for the petitioner on the unreported judgment of this Court in ARINGER ANNA PRIMARY AGRICULTURAL CO-OPERATIVE BANK REP.BY ITS PRESIDENT vs. THE PRESIDING OFFICER, LABOUR COURT AND ANOTHER rendered in W.P.No.9162 of 2003 dated 20.08.2010 has no application to the facts on hand. A perusal of the order passed by the learned Judge would indicate that the question as to whether an employee is a workmen under the Act or not is a disputed question of fact and therefore the same cannot be raised for the first time before the Writ Court. In fact, by applying the said ratio, the same would only be held against the petitioners and not the Mangement. 17.As discussed above, the Labour Court has thoroughly considered the entire material available on record and came to the conclusion. It is settled position of law that while exercising the power under Article 226 of the Constitution of India, the discretionary and extra-ordinary jurisdiction cannot be extended to a dispute which involves disputed questions of fact. The Honourable Apex Court in ANOOP SHARMA vs. PUBLIC HEALTH DIVISION, HARYANA [(2010) 5 SCC 497], while considering the jurisdiction of the Court under Article 226 of the Constitution of India in a writ of certiorari dealing with the labour matters, has held that a finding of fact recorded by the Tribunal shall not be disturbed by the High Court. The relevant passage of the said judgment is extracted herein: "13. In our view, the approach adopted by the Division Bench is contrary to the judicially recognised limitations of the High Court’s power to issue writ of certiorari under Article 226 of the Constitution—Syed Yakoob v. K.S. Radhakrishnan7, Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd.8, Lakshmi Precision Screws Ltd. v. Ram Bahagat9, Mohd. Shahnawaz Akhtar v. ADJ, Varanasi10, Mukand Ltd. v. Staff and Officers’ Assn.11, Dharamraj v. Chhitan and CIT v. Saurashtra Kutch Stock Exchange Ltd.13 14. In Syed Yakoob v. K.S. Radhakrishnan7 the Constitution Bench of this Court considered the scope of the High Court’s jurisdiction to issue https://hcservices.ecourts.gov.in/hcservices/ a writ of certiorari in cases involving challenge to the orders passed by the authorities entrusted with quasi-judicial functions under the Motor Vehicles Act, 1939. Speaking for the majority of the Constitution Bench, Gajendragadkar, J. observed as under: (AIR pp.479-80, para 7) “7. ... A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari 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, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to https://hcservices.ecourts.gov.in/hcservices/ sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the 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 before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.” (emphasis supplied) 18.Therefore, considering the above said legal position of law, this Court is of the view that the facts of the present case does not warrant any interference at the hands of this Court under Article 226 of the Constitution of India. 19.However, this Court finds that in so far as the Writ Petitions filed by the employees are concerned, factually there is no difference between these cases and other two filed by the Management. All the employees in both set of cases have been transferred and consequently dismissed. I.D.No.137 of 1998 was allowed against the respondent/employee in W.P.Nos.13565 and 13566 of 2002 on the ground that he is a workmen coming under the purview of the Industrial Disputes Act, 1947. However, the other petitions filed by the petitioners in W.P.Nos.14527, 14305 to 14308 of 2002 have been dismissed only on the ground that the claim petition are not maintainable. Therefore, merely because an Industrial Dispute is not maintainable against the petitioners, they cannot be prevented from seeking a remedy through a common law remedy considering the fact that they are identically placed like the second respondent in W.P.No.13565 of 2002. Hence considering the fact that the petitioners have been pursuing their remedy from the Labour Court and thereafter before this Court, liberty is given to them to approach the competent Civil Court to seek redressal of their grievances. Accordingly, liberty is given to the petitioners in W.P.Nos.14527, 14305 to 14308 of 2002 to approach the competent Civil Court within a period of eight (8) weeks from the date of receipt of a copy of this order. As and when they approach the competent Civil Court, the dispute shall be decided without reference to the period of limitation and on the merits of the case. 20.In so far as the second respondent in W.P.No.13565 of 2002 it has been informed by the learned counsel appearing for both sides that he has since retired. Therefore, in order to put an end to the issue and by driving him to approach the Labour Court for quantifying the amount due to him, this Court is of the view that taking into consideration of the salary for 40 months and by quantifying and rounding it, a sum of Rs.1,50,000/- would be just and proper to be payable by the Management. Accordingly, the https://hcservices.ecourts.gov.in/hcservices/ petitioner in W.P.Nos.13565 and 13566 of 2002 is directed to pay the said sum of Rs.1,50,000/- to the second respondent / workmen, within a period of eight (8) weeks from the date of receipt of a copy of this order. 21.In the light of the discussions made above, the Writ Petitions filed in W.P.Nos.14527, 14305 to 14308 of 2002 are dismissed confirming the award passed by the Labour Court, with liberty to the petitioners to approach the competent Labour Court within a period of eight (8) weeks from the date of receipt of a copy of this order. The Writ Petitions filed in W.P.Nos.13565 and 13566 of 2002 are dismissed with a modification directing the petitioners to pay a sum of Rs.1,50,000/- to the second respondent. However, considering the facts and circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petitions are closed. sri Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer Industrial Tribunal Chennai – 600 104. + 1 cc to Mr. T. S. Gopalan, Advocate SR No.17583 + 1 cc to Mr. K.M. Ramesh, Advocate SR No.17486 TRM(CO) SR/16.4.2011 W.P. Nos.13565 & 13566, 14527, 14305 to 14308 of