IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.10.2009 CORAM: THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN WP.NO.9993 Of 2004 in MP.No.11660 of 2004 in WVMP.No.1255 of 2004 The Management of Aringnar Anna Zoological Park, Vandalur, Chennai – 600 048. .. Petitioner Vs. 1.The Workmen employed in Arignar Anna Zoological Park, Chennai, rep.by the General Secretary, Arignar Anna Zoological Park ThozhilalarSangam, 4/80, Vanampadi Valagam, National Highways, Otteri, Vandalur Post, Chennai – 600 048. 2.The Presiding Officer, Principal Labour Court, Chennai. .. Respondents Prayer : Writ Petition is filed under article 226 of the Constitution of India praying to issuance of Writ of certiorari to call for the records in I.D.No.477 of 1997, dated 09.12.2003 on the file of the Principal Labour Court, Chennai and quash the same. For Petitioner : Mr.K.Rajasekar Government Advocate (Forest) For Respondent : Mr.S.Kumaraswamy For R1 ORDER The writ petition has been filed by the Management of Arignar Anna Zoological Park, aggrieved by the award passed in I.D.No.477 of 1997 by which the member of the first respondent https://hcservices.ecourts.gov.in/hcservices/ Association was directed to be reinstated with all service and all other attendant benefits. 2.The case of the first respondent Association is that their members casual labours were and their details are given as follows; t/vz; bgah; nrh;e;j njjp bra;j ntiy ntiy ePf;fk; bra;ag;gl;l ehs; 1 ,/$hd; 1980 bjhHpyhsp 25/11/1985 2 nrh/,uzpag;gd; 25/10/1980 kpd;rhu nkhl;lhh; ,af;Fgth; 1/7/86 3 Nf/gj;kehgd; 25/10/1980 @ 25/4/1986 4 Vk;/Rg;gpukzp 6/12/09 @ 1/7/86 5 ,/,uhkr;re;jpud; 11/12/80 Mapy; nkhl;lhh; ,af;Fgth; 1/9/86 6 ,/RFkhh; 18/07/1984 njhl;l ntiyahs; 1/9/86 7 V!;/gHdp 1981 gk;g; Mg;nul;lh; 25/4/1986 8 Mh;/gHdp 8/10/79 jPtd njhl;l ntiyahs; 1/8/86 9 Vd;/ghyfpUl;ozz; 19/08/1980 Xa;tpl ghJfhtyh; 1/8/86 They were all employed to look after the Animals and attending other connected works in the Zoo. The petitioner engaged about 170 people for maintenance of the Zoo and all of a sudden the members of the first respondent Association, were orally terminated from service. Aggrieved by that the union raised industrial dispute. However the Tamil Nadu Government refused to refer the matter for adjudication and against which the union was compelled to file W.P.No.5198 and 7272/88. This Court by an order dated 17.3.1997, directed the Government to reconsider the matter so that the matter could be decided by the Labour Court. Subsequently the matter was referred for adjudication. 3.Claim Petition in I.D.No.477/97 was filed by 9 members of the first respondent association. In the I.D.No.477 of 97, the first respondent association challenged the order of termination and prayed for reinstatement and payment of service and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 4.Counter statement was filed by the petitioner, wherein the petitioner would contend that the workmen were employed on daily wages basis. Whenever there was work persons would be appointed and as soon as the work was over, their services would be terminated. It was the further contention that the Government of Tamil Nadu has got every power to remove the temporary workmen from the service and that the said persons were appointed only by an oral order; since their services were not required, they had been stopped by the oral order. The further contention of the petitioner is that with regard to maintainability of claim petition by the Union representing the employees as it is an unrecognised Association. It is the further contention of the petitioner that the provisions of the Industrial Dispute Act would not apply to the employees of Arignar Anna Zoological Park as it is not an industrial establishment. Yet another contention was taken by the petitioner that the Zoological Park is not a commercial establishment and it does not come under the purview of Sec.2(3) of Shops and Establishment act 1947. 5.After appreciation of the pleadings and evidence adduced before it, the labour court came to the conclusion that the Zoological park's termination of the services of the members of the petitioner is unjust and illegal and further held that utilizing the service of the petitioner as casual labour even though the petitioner was having permanent vacancy would amount to unfair labour practice. For coming to the aforesaid conclusion, the labour court relied upon various documents, which were exhibited. Apart from that the labour court found that even though the petitioner park was in possession of the documents which were necessary for adjudication, they were not filed before the court and as a result adverse inference was drawn against the petitioner for deliberately not producing the relevant documents before the Court. 6. Aggrieved by the award passed in I.D.No.447 of 1997 the present writ petition has been filed by the Management, contenting that there was no appointment order in writing and they were not terminated from service. Casual workers were engaged for the project work, namely construction and maintenance of zoo infrastructure, in the initial stage of the construction of the zoo and the nature of work was purely temporary till the assigned work was completed. 7. Mr.Rajasekar, Government Advocate, Forest Department, relied upon a Judgment of this Court made in writ petition No.6985 of 1986 passed on 24.07.1986 and stated that the zoological park is not an industry and hence Industrial Dispute Act is not applicable. On the other hand, Mr.S.Kumaraswamy, learned counsel for the first respondent submitted that after appreciation of the facts and evidence only, the tribunal rightly passed the award and it does not warrant any interference based on the contention raised by the petitioner. With regard to locus standi, he submitted that on behalf https://hcservices.ecourts.gov.in/hcservices/ of the members, the Union can maintain claim petition. Mr.S.Kumaraswamy, learned counsel for the first respondent relied upon the Judgment of the Hon'ble Punjab & Hariyana High Court in Punjab Anand Lamp Employees Union v. Punjab Anand Lamp Industry Ltd. And another reported in (1997(1) LLJ 338) wherein it was held as follows: "After coming into force of Section 2A, the dispute relating to an individual workman can be raised by the workman himself or by a registered trade union, recognised or unrecognised or by a substantial number of workmen and there is nothing in the Act, which indicates that a union is debarred from raising a dispute relating to an individual workman." 8.Secondly unfair labour practice was employed by the first respondent zoo. Moreover the zoo will come under the definition of industry. He relied upon the judgment of the Hon'ble Supreme Court in the case of CHIEF CONSERVATOR OF FORESTS & ANOTHER V. JAGANNATH MARUTI KONDHARE reported in 1996(1) LLJ page 1223 wherein Supreme Court held that the Forest Department of the State Government is an industry. Relying upon the said judgment, the learned counsel for the first respondent contended that the judgment of the single judge passed in W.P.6985 of 1986 is over ruled by the above said supreme court judgment. Moreover the Supreme Court declared the educational institution is also an industry. With regard to the status of forest department, it has been settled by the Apex Court. 9. Mr.S.Kumaraswarmy learned counsel for the petitioner contended that only a few employees have been chosen by the petitioner management and terminated their services, which was admitted by the witnesses of the management in the cross-examination. The evidence of M.W.1 would support the claim of the respondent association. The learned counsel for the first respondent submitted that all the aspects were analysed by the labour court passed the award, which need not be interfered with. 10. A perusal of the award would show that it was passed on proper consideration of pleadings and evidence. The management has been in possession of the documents which were necessary for deciding the claim of the first respondent association. Under section 106 of the Evidence Act, a person who is in possession of the documents has to produce those documents as evidence. Section 106 is extracted as follows: " 106. Burden of proving fact especially within knowledge--- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." https://hcservices.ecourts.gov.in/hcservices/ As admitted by M.W.1, the documents in support of the workers were in possession of the management and in default to produce those documents the court could draw adverse inference against the petitioner/management. It was rightly held by the labour court regarding production of the documents were concerned, if the documents were produced it would have gone against the management and that was the reason why the management did not produce those documents. Industrial Disputes Act has been enacted to safeguard the interests of the workers and the same should be given effect in letter and sprit by the state Government. The zoological park comes under the Forest Department and the same would come under the purview of the Industrial Disputes Act. 11. The petitioner management should not have terminated the poor casual labourers without giving any reasons. On the contrary the similarly placed workers, were absorbed by the very same management, as admitted by the petitioner witness. Hence there is a case of discrimination also. Regarding plea of maintainability of the claim petition by the association, the issue was already settled by the Hon'ble Supreme Court in M/s.Akil Bharatiya Sushity Kaaranchari Singh (Railways) represented by its Assistant General Secretary on behalf of the Association etc. vs. Union of India and others reported in AIR 1980 SC 298 and therefore the plea of the petitioner regarding maintainability is rejected holding that the Association has locustandi to maintain the claim petition. 12. Apart from that the tribunal has given a finding of fact, which cannot be challenged under article 226 exercising the writ jurisdiction. Unless the finding are perverse exercising writ jurisdiction under Article 226 of the Constitution of India, the High Court cannot act as appellate authority the jurisdiction of this Court is very limited as pronounced by the Hon'ble Supreme Court in Rahimal (Dead) by LRs and another Vs. Deputy Director of Consolidation and others reported in (2002) 10 SCC 94 wherein it has been held that the finding recorded by the Court is the finding of fact and it cannot be assailed in the appeal, and finding of fact cannot be interfered with by this Court. Similarly, in Ranjeer Singh Vs. Ravi Prakash reported in (2004) 3 SCC 682, it has been held by the Hon'ble Supreme Court that the High Court cannot act like an appellate Court and re-appreciate or re-evaluate the evidence while exercising Certiorari or Supervisory jurisdiction. In Shamshad Ahmad and others Vs. Thilak Raj Bajai (Deceased) through LRs reported in (2008) 9 SCC, the Hon'ble Supreme Court held that the powers of the High Court under Article 226 and 227 are very wide and extensive over all Courts and Tribunals, and such powers must be exercised within the limits of law. The High Court does not act as a Court of appeal or a Court of error. Unless there was miscarriage of justice or violation of law calling for intervention it was not for the High Court under Article 226 and 227 to interfere. The above said https://hcservices.ecourts.gov.in/hcservices/ principle has been laid in D.N.Bonerji Vs. P.R.Mukherjee reported in AIR 1953 SC 58 and the same was followed in Chandavarkar Sita Ratna Rao Vs. Ashalata S.Guram reported in (1986) 4 SCC 447 (Page 460 para 20) Hence there is nothing to show that the impugned order has been passed without considering the evidence. On the other hand the labour court is justified in passing the award. 13.For the reasons stated above the writ petition is dismissed. Consequently, connected Miscellaneous petitions are closed. No costs. am/vk 26.10.2009 This Petition having been posted on this day Friday, the Thirtieth day October 2009 for being mentioned in pursuance to the order of this Court dated 26.10.2009 and made herein in the presence of Mr.K.Rajasekar, Government Advocate (Forest) and of Mr.S.Kumarasamy, Advocate for the Respondent-1 the Court made the following Order: The above matter is posted before this court for being mentioned. It is being brought to the notice of this court by the learned counsel for respondents that as per order on 17.08.2006 passed by this court the petitioner / Management was directed to deposit the entire back wages as award by the labour court. Pursuant to the order the management deposited the amount and out of which 75 % was ordered to be disbursed by the respondent, for which the learned counsel for the management has stated no objection and the balance amount of 25% was directed to be deposited in any one of the Nationalised Bank until further orders. Since, the above writ petition filed by the management was dismissed by this court on 26.10.2009 the amount payable to the creditor of the labour court, namely the second respondent is hereby directed to be paid by filing an application before the Labour Court. On such filing by the second respondent, the Labour court is directed reimburse the amount within 10 days thereafter. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sms https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Principal Labour Court, Chennai. 1 cc to Mr.K.M.Ramesh, Advocate, Sr.No.57655 1 cc to Spl.Government Pleader, Sr.No.56863, 57678 W.P.No.9993 Of 2004 AKR {CO} TP/4.2.2010. https://hcservices.ecourts.gov.in/hcservices/