IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 21..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. Nos. 9248 and 9249 of 1997 S. Selvam .. Petitioner in W.P. No. 9248 of 1997 C. Kaliamoorthy .. Petitioner in W.P. No. 9249 of 1997 vs. 1. The Presiding Officer Labour Court Cuddalore 2. S.K.T. Velayutham (Deceased) 3. S.K.T.V. Raja 4. S.K.T.V. Kannan 5. S.K.T.V. Prabhu .. Respondents in both W.Ps. RR3 to 5 substituted as LRs of deceased R2 as per order dated 25.8.2003 in W.M.P. No. 7264 and 7262 of 1999. Petitions filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent in Award dated 12.9.1995 and made in I.D. Nos. 561 and 567 of 1992 and quash the same. For Petitioner : Mr. T. Dhanyakumar for both W.Ps. For RR3 to 5 : Mr. A. Muthukumar C O M M O N O R D E R These writ petitions are filed by the petitioner against the common Award dated 12.9.1995 passed by the first respondent Labour Court and made in I.D. Nos. 561 and 567 of 1992 insofar as it denied any relief to the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioners, along with several other persons, raised a dispute against the SKT Vel Mark Suruttu Company with reference to their non-employment under Section 2A(2) of the Industrial Disputes Act, 1947 [for short, 'I.D. Act']. The claim of the petitioners was that they were employed for 3 to 10 years and were drawing Rs.900/- per month and they were working for more than 12 hours and the respondents had engaged 80 workers. The petitioners along with other workers joined the Thanjavur District Cigar Workers' Union claiming bonus and went on an agitation. They had also gone on strike w.e.f. 20.10.1990. Subsequently, after the withdrawal of the same, when they went to report for work on 28.10.1990, the petitioner along with 11 others were denied work. The only ground on which the petitioners were denied work was that they had gone on strike. The Trade Union leaders held talks and when that failed, they moved the Labour Officer and got their dispute referred for adjudication by the first respondent Labour Court. 3. The respondents filed a counter affidavit refuting the stand of the petitioners and stated that at no point of time, they came back to work. Even on 28.10.1990, when they came to work, they are ready to give them the materials for rolling cigars but the petitioners never reported to work. 4. The petitioners in these petitions, along with six other persons, who have also raised similar industrial disputes, were heard together by the Labour Court and a common Award dated 12.9.1995 was passed. 5. Before the Labour Court, the petitioners examined themselves as W.W.2 and W.W.3 apart from examining other workers as W.W.1, W.W.4 and W.W.5. On the side of the second respondent, S.K.T. Velayutham (since deceased), the then in-charge was examined. While the workmen had filed 24 documents, which were marked as Exs. W.1 to W.24, on the side of the respondents, two documents were filed and they were marked as Exs. M.1 and M.2. 6. The Labour Court, without reference to any legal provision, held that the petitioners are are piece-rate workers and there was no employer – employee relationship between the Cigar rollers and the Management and that no documents were filed to show that they had worked for 12 hours in the establishment. Since they were paid on the basis of the output of cigars rolled by them, it cannot be said that they were employees of the respondents. In paragraph 14 of the Award, the Labour Court showed its utter ignorance of the working of the Beedi and Cigar establishments and the relevant case laws on the said subject. The Labour Court further held that in the absence of any evidence to show the employer – employee relationship between the petitioners and the Management, mere receiving of letters and https://hcservices.ecourts.gov.in/hcservices/ other documents in the address of the employer cannot create any proof and, therefore, the question of their removal from service does not arise. It also held that the workers cannot be termed to be "workman" within the meaning of Section 2(s) of the I.D. Act. In that view of those findings, it held that the petitioners are not workmen. But, however, if the petitioners come forward to roll cigars on the basis of earlier arrangement, they may be taken by the employer as was done in the past. 7. In this context, it is relevant to refer to the following judgments of the Supreme Court:- (a) Hussainbhai, Calicut v. The Alath Factory Thozhilali Union, Kozhikode [(1978) 4 SCC 257] (b) Sudhoo v. Haji Lal Mohd. Biri Works [(1990) 4 SCC 37] 8. The Supreme Court in Hussainbhai, Calicut v. The Alath Factory Thozhilali Union, Kozhikode [(1978) 4 SCC 257] and relied on the following passages found in paragraphs 4 to 6:- Para 4: "This argument is impeccable in laissez faire economics “red in tooth and claw” and under the Contract Act rooted in English Common Law. But the human gap of a century yawns between this strict doctrine and industrial jurisprudence. The source and strength of the industrial branch of Third World Jurisprudence is social justice proclaimed in the Preamble to the Constitution. This Court in Ganesh Beedi case has raised on British and American rulings to hold that mere contracts are not decisive and the complex of considerations relevant to the relationship is different. Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the Rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine- spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submission that the High Court is in error in its holding against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ Para 5: The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers’ subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances. Para 6: If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make- believe trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off." 9. In Sudhoo's case (cited above), the Supreme Cout explained the scope of Section 31(2) of the Beedi and Cigar Act and held that even oral termination is ceased by the section. The following passages found in paragraph 10 of the said judgment may be usefully reproduced:- Para 10: "The High Court on the interpretation of above quoted section came to the conclusion that appellant Sudhoo was prevented from doing the work by the establishment and since no order of retrenchment, discharge or dismissal was passed the provisions of Section 31 were not attracted. The High Court was https://hcservices.ecourts.gov.in/hcservices/ patently in error. The Act is a measure of social legislation to give protection to the workmen employed in the beedi and cigar industry. The provisions of the Act are to be liberally construed. Whenever a workman approaches the Prescribed Authority under Section 31(2) of the Act with a complaint that his employment has been brought to an end by the employer without any reasonable cause, the Prescribed Authority is bound to adjudicate the same. It hardly matters whether the employment was terminated by written order, oral direction or by stopping the workman from entering the place of work. The Prescribed Authority in this case found as a fact that the appellant was employee of respondent-establishment and his services were arbitrarily terminated. We are, therefore, of the view that High Court was wrong in holding that the appeal of Sudhoo was not maintainable under Section 31(2) of the Act." [Emphasis added] 10. The above said rulings of the Supreme Court will clearly show that Beedi and Cigar Workers (Conditions of Employment) Act 1966 has been enacted with a view to safeguard the workmen engaged in the said industry and by virtue of Section 31 of the said Act, no employer can dispense with the service of the employee without a reasonable cause. Therefore, there is an injunction against the employer from dispensing with the service of their employer except for the conditions stated therein. It is inconsequential that an employee is engaged for rolling cigars on piece-rate basis. When an employer breaches the statutory enactment by not keeping the registers, any other evidence in the form of letters being received in the said address in the name of the employee can also be a material evidence to prove his employment with that employer. The Labour Court made a superficial finding and did not advert to the legal precedents on this issue. 11. In the light of the above, the writ petitions stand allowed and the Award dated 12.9.1995 passed by the Labour Court in I.D. Nos. 561 and 567 of 1992 will stand set aside. The Industrial Disputes are remitted to the Labour Court for fresh disposal in accordance with law. Since these matters are already more than 18 years old, the first respondent Labour Court is directed to give preference in disposing of the same, but, in any https://hcservices.ecourts.gov.in/hcservices/ event dispose of the same within a period of three months from the date of receipt of a copy of this order. No costs. gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Presiding Officer Labour Court Cuddalore 1 cc to Mr.A.Muthukumar, Advocate, SR.38613 2 ccs to M/s.T.Dhanyakumar, Advocate, SR.38971 & 39336 ksk (co) dv/25.8. https://hcservices.ecourts.gov.in/hcservices/