IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.11.2009 CORAM THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.No.8159 of 2003 Tamil Nadu State Transport Corporation (Villupuram-Division-II) Limited, Rangapuram, Vellore-9. Petitioner Vs. 1. The Presiding Officer, Labour Court, Vellore. 2. Arumugam Respondents The Writ Petition filed Under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, calling for the records on the file of the first respondent herein and to quash the impugned award dated 28.06.2001 made in I.D.No.350 of 1995. For Petitioner : Mr.M. Sudhakaran for M/s. King & Patridge For Respondents: R1-Court Mr.V. Ajoy Khose for R2 ORDER The Writ Petition has been filed as against the impugned award dated 28.06.2001 by which the second respondent was reinstated with all benefits in the petitioner Management Corporation. The facts of the case are as follows: 2. According to the petitioner the second respondent was a casual employee on daily wages of Rs.78/- per day and he was not a permanent employee and he had not put in continuous service. The second respondent was employed as driver and on 09.07.1994, the second respondent drove the bus in a rash and negligent manner and dashed against a tree at the extreme left side of the road resulting in death of three persons and injuring five others. Because of the said accident, the petitioner had to pay heavy compensation. Therefore, the petitioner decided not to engage the second respondent any more. https://hcservices.ecourts.gov.in/hcservices/ 3. Aggrieved by that, the second respondent raised I.D.No.350/95 on the file of the first respondent. In the said Industrial Dispute, the second respondent claimed that on 09.07.1994 while he was driving the vehicle on duty near Polur, the wind screen glass which had already developed scratches suddenly broke and caused injuries to the respondent's hands resulting in loss of control and the vehicle dashed against the tree on the road side. 4. It is the case of the petitioner that the second respondent took treatment for the injuries sustained by him at Vellore Government Hospital till 11.10.1994. After treatment, when he reported for duty, the petitioner did not provide him work and filed the above petition. In the said petition, the second respondent submitted that he reported the condition of the wind screen glass to the depot staff even before he took the vehicle but no step was taken to repair the glass and that the accident did not occur due to his negligence and carelessness. He also found fault with the petitioner's reason to deny employment without any charges and without any enquiry. 5. The petitioner filed counter affidavit and contended that the second respondent cannot raise Industrial Disputes under Section 2(A) of the Industrial Disputes Act and he would not come within the definition of the worker that he never performed duty as a permanent worker in the Corporation and that he was only working as a casual employer. It is also stated in Paragraph 7 of the counter statement that the second respondent/driver drove the vehicle in a rash and negligent manner and he was solely responsible for the accident. 6. On appreciation of facts and evidence, the labour Court held that even a casual employer can raise Industrial Dispute as per Section 2A(2) of the Industrial Disputes Act and that no proof was filed on the side of the petitioner Management to prove the nature of the employment given to the second respondent. Thirdly, the petitioner without any justification and without any notice or enquiry denied the employment and therefore it reinstated the second respondent with all full benefits. 7. Mr.M.Sudhakaran, learned Counsel for the petitioner submitted that the second respondent is only the casual employer and he would not covered by Industrial Disputes Act and he cannot raise Industrial Disputes under Section 2A of the Industrial Dispute Act. He contended that the burden of proof to prove that the worker had completed 240 days of service, is cast upon the workman and not on the Management. He relied on a judgment of the Honourable Supreme Court in State of Maharashtra Vs. Dattatraya Digamber Birajdar reported in AIR 2007 SC 3056. In that case, it was held that the burden to prove that the workmen was engaged for https://hcservices.ecourts.gov.in/hcservices/ 240 days in service lies on the employee. To come to the conclusion the Supreme Court relied upon a judgment in Range Forest Officer Vs. S.T.Hadimani reported in (2002) 3 SCC 25. By relying upon those judgments the learned Advocate submitted that the burden of proof is upon the person who approached the court with the plea that he continued in service for 240 days of employment. Hence, he found fault with the findings of the Labour Court that the Management had not disputed the factum of employment of second respondent for 240 days. The counsel also submitted that there is no proof before the Tribunal to come to the conclusion that the second respondent was not responsible for the accident and that the accident caused heavy loss to the petitioner who had to pay heavy compensation, payable to the victims of the accident. Therefore, he contended the petitioner is justified in not conducting any enquiry and not giving any employment on the ground that he was not the permanent employer. 8. Mr.Ajay Ghosh, the learned Government Advocate submitted that it is well settled proposition of the law that the person who comes to the Court has to prove his claim. However, in this case the Petitioner Management did not deny the allegation, with regard to the employment of the second respondent, for more than 240 days. Secondly, the learned counsel submitted that the second respondent would come under the definition of to Section 2(s) of the Industrial Disputes Act. Section 2(s) of the Industrial Disputes Act is extracted as follows: "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); (ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. https://hcservices.ecourts.gov.in/hcservices/ 9. Learned counsel relying upon the said section, submitted that the second respondent comes under Section 2(s) of the Industrial Disputes Act. When he comes under 2(s) of the Industrial Disputes Act necessarily, he has to be terminated after following the procedure namely, issuing show cause notice, holding of enquiry etc., Non observance of the procedures of the Act, would definitely vitiate the action of the petitioner to deny employment. Thirdly, he contended that as stated in para 2 of the claim petition the wind screen glass which had already developed scratches suddenly broke and caused injuries to the second respondent's hands resulting in loss of his control over the vehicle and the accident occurred which was beyond his control. 10. A perusal of the award would show that the pleadings and evidence on record have been taken into consideration by the Tribunal, while passing the award. In paragraphs 5 and 6 of the award the Labour Court gave a finding with regard to the right of the second respondent to maintain Industrial Disputes under Section 2A(2) of the Act. The second respondent in paragraph 1 of the claim statement stated that he was appointed as driver in the petitioner Corporation from 05.11.1992 till 09.07.1994. Such fact was not denied in the counter statement filed on behalf of the Corporation. In the absence of any denial in the counter statement, it is deemed to be an admission. Apart from that the Management is in possession of the documents with regard to the employment of the second respondent. The person who is in possession of these documents is required to produce them before the Court of Law and that too the documents are within the knowledge of the petitioner Management. As per Section 106 of the Indian Evidence Act, 1872, the burden lies on the person who has got special knowledge to produce the documents. As the Management failed to produce those documents adverse inference could be drawn against it and it is deemed that the workman worked from 05.11.1992 to 09.07.1994 and which comes to more than 240 days. 11. No doubt, the judgment cited by the learned counsel for the petitioner speaks about the burden of proof lies upon the employee, whereas in the case as stated above, the Management is the right person to produce the documents with regard to the employment of the second respondent, as it is in possession of the documents to show that for how many days he worked. As it miserably failed to produce the documents and discharge its burden, the said judgment is not useful to the petitioner. 12. The Labour Court came to the conclusion that even a casual employee will be considered as workman under Sections 2(S) and 25F of Industrial Dispute Act relying upon the judgment in Dinesh Sharma and others Vs. State of Bihar reported in 1982 LIC NOC 125 and H.D Singh Vs. Reserve Bank of India and others reported in 1985 https://hcservices.ecourts.gov.in/hcservices/ II LLN 1037=AIR 1986 SC 132. In these judgments it has been held even a person working as a casual employment for more than one year, the denial of employment, would be considered as dismissal from service. 13. The Tribunal rightly concluded that the second respondent is workman who put in service more than 240 days and he has to be necessarily be given notice and enquiry should be conducted before denying employment. In the absence of the above, the Tribunal rightly concluded that the denial of employment without following the procedure is against Industrial Disputes Act and reinstated the second respondent. 14. The Tribunal in paragraph 8 of the award found that the accident occurred only for the improper administration of the petitioner Management. The Tribunal rightly pointed out that as per Exhibit M3 there was scratches developed in the minor and had the management repaired or replaced the same the accident would have been avoided. The proper management of the buses lies with the administration of the petitioner Management. The Tribunal found fault with the petitioner/Management for not properly maintaining the buses. Without maintaining the buses in proper manner, there would not be any point in finding fault with the drivers. 15. Moreover it is brought to the notice of the Court about the counter statement by the petitioner/Management in MACT O.P.No712 of 1995, which was filed by the victims of the accident and in which in paragraph 3, it was stated that the petitioner's driver(the second respondent herein) has not driven in rash and negligent manner and he was driving the vehicle in proper way. Therefore, the petitioner cannot deny employment on the ground that the second respondent caused the accident. The aforesaid counter statement filed in MACT case defeats the case of the petitioner. 16. The findings given by the Tribunal are finding of facts and it cannot be set aside by this Court. This court under Article 226 of the Constitution of India cannot act as an Appellate Court to reappreciate and revalue the evidence, exercising supervising jurisdiction. Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram reported in 1986 4 SCC 447(Page 460 Para 20). In the light of the judgment of the Supreme Court, the scope of judicial review with regard to findings of fact given by the Tribunal, is very limited by exercising supervisory jurisdiction under Article 226 of the Constitution of India. No such interference is warranted against the award of the Tribunal. In these circumstances, this Court confirms the award passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 17. The writ petition stands dismissed. No costs. ssj Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer, Labour Court, Vellore. +1 cc to Mr. V. Ajay Kohse, Advocate SR No.59566 KJI(CO) SR/9.3.2010 W.P.No.8159 of 2003 https://hcservices.ecourts.gov.in/hcservices/