These Writ Petitions have been filed by the petitioners, seeking for the issuance of Writ of Certiorari, to call for the records of the second respondent, II Additional Labour Court, Chennai and quash the common order dated 27.6.2001 made in I.A.Nos.1109 & 1110 of 2000 in I.D.No.378 of 1996.
2. The above said Interlocutory Applications, viz., I.A.Nos.1109 and 1110 of 2000 were filed in I.D.No.378 of 1996 by the first respondent herein, seeking to reopen the case and summon the petitioner Company for recording the evidence and for cross examination by him. By order, dated 27.6.2001, the second respondent Labour Court, allowed the said applications.
3. The brief facts, which give rise to the filing of the Industrial Dispute and the consequent Writ Petitions, are as follows:
4. The petitioner is a Company dealing in fabrication work. The first respondent was employed as Assistant Manager. His services came to be terminated being temporary engagement, vide termination order dated 28.2.1994. Against the said termination order, the first respondent raised an industrial dispute vide I.D.No.378 of 1996, assailing the action of the Management.
5. The petitioner company filed its counter statement inter alia contending that the first respondent is not a workman and therefore, he is not entitled to approach the Labour Court and the industrial dispute was, therefore, not maintainable.
6. In the proceedings before the second respondent Labour Court, the first respondent employee was examined as a witness and exhibits W1 to W11 were marked. The employee was also cross-examined in detail and through him, the Management marked Exs.M1 to M14. While marking the documents which were photocopies, originals of the same were shown and thereafter, the copies were marked. It appears that subsequently, another set of documents, viz., M15 to M25 were marked by consent after production of the originals. Thereafter, after cross-examination, an endorsement was made on 27.6.2000 on behalf of the Management, to the effect that there was no oral evidence. Thereafter, the matter was posted for arguments.
7. It appears that subsequently, the matter was adjourned on few occasions for arguments and on behalf of the first respondent employee, two interlocutory applications were taken out, viz., I.A.Nos.1109 and 1110 of 2000 for reopening the case and for summoning the writ petitioner company for recording evidence and cross-examination by the employee. Since there was no requirement for filing the Interlocutory Applications, on behalf of the Management, a counter statement was filed resisting the applications. However, the said applications came to be dismissed for default on 1.2.2001. The first respondent employee, after dismissal of the interlocutory applications, had taken two applications in I.A.Nos.141 and 142 of 2001 seeking to set aside the order of dismissal made on 1.2.2001 in I.A.Nos.1109 and 1110 of 2000.
8. In response to the subsequent interlocutory applications, the Management filed counter statements, protesting to the grant of any relief in the said applications.
9. The second respondent Labour Court, notwithstanding the objections raised by the Management, allowed the applications in I.A.Nos.141 and 142 of 2001, by order dated 14.5.2001 wherein, while setting aside the ex parte order of dismissal dated 1.2.2001 restored the Interlocutory Applications, viz., IA.Nos.1109 and 1110 of 2000. Subsequently, the Labour Court, vide impugned order dated 27.6.2001, allowed the interlocutory applications, stating that the Management has to produce originals of the documents already marked through appropriate witness. Against the said order of the Labour Court dated 27.6.2001, the petitioner Management is before this Court.
10. Heard Shri C.Franco Louis, who is appearing for the petitioner and perused the entire materials available on record.
11. The learned counsel for the petitioner strenuously contended that there was absolutely no necessity for the second respondent Labour Court to reopen the case and to summon the Management for examination and production of originals of the documents already marked since during the examination of the first respondent employee, the originals were produced and the documents were marked through him and such exercise need not be repeated through the Management witness and in fact, all the documents which came to be marked in the proceedings before the Labour Court only after the originals of the same were produced and the same were marked either through the first respondent employee or by mutual consent of the parties. That being the case, ordering for reopening the case and summoning the originals which were already shown and produced, was unnecessary and was not at all warranted.
12. Mr.Franco Louis further contended that from the documents marked, it will unequivocally prove that the first respondent is not a workman and therefore, the industrial dispute raised by him, was not at all maintainable. The learned counsel had taken this Court through the exhibits marked in the proceedings before the Labour Court. the Labour Court, in its order, has in fact, concluded that all the required evidence in support of the Management's case was done through the cross examination of the employee and as whatever documents which were necessary for supporting the case, were marked either by consent or through the employee, there was no necessity for letting in any oral evidence on behalf of the Management. Having concluded so, the learned Labour Court, without any compelling circumstances or reasons, had accepted the case of the first respondent and allowed the interlocutory applications. From the order impugned, it could be seen that the Labour Court had not given any acceptable reasons for allowing the interlocutory applications filed by the first respondent, despite legitimate and serious objections raised before the Labour Court on behalf of the Management.
13. On a perusal of the materials on record and on consideration of the submissions made on behalf of the writ petitioner, this Court is of the view that the impugned order passed by the Labour Court is unnecessary and cannot be countenanced both in law and on facts. The Labour Court has not spelt out any acceptable reasons as to why the interlocutory applications filed by the first respondent should be allowed particularly in view of its own conclusion that the Management had fully established its case through the cross-examination of the employee by marking the required documents on production of the originals. Even otherwise, no party can be compelled to let in evidence since not letting in evidence, the party concerned would be at the risk by allowing the Court in drawing inference against it. Such being the case, when the Management has made an endorsement that there was no oral evidence on its behalf, it is not open to the first respondent to compel the Management to let in evidence particularly when the documents relied upon by the Management were marked through the employee after being produced the originals and compared.
14. In view of the above, the impugned order passed by the Labour Court dated 27.6.2001 in I.A.Nos.1109 and 1110 of 2000 is set aside. It is brought to the notice of this Court that in view of the interim order passed in the Writ Petition, the main industrial dispute is still pending on the file of the second respondent Labour Court. In the circumstances, the second respondent Labour Court is directed to proceed with the industrial dispute in I.D.No.378 of 1996 and dispose of the same, after hearing the arguments of the respective parties, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.
In the light of the above, the Writ Petitions are disposed of. No costs. Consequently, connected WPMPs and WVMP are closed.
to call for the records relating to the order dated 21.3.2002 passed in Rc/E/2635/2002, on the file of the Inspector of Labour, Tuticorin (the first respondent herein), quash the same and direct the respondents to confer the permanent status upon the petitioner by absorbing him into services of the second respondent by providing him with an employment of permanent nature suitable to his qualification within a time frame, with all the benefits from the date of his initial employment or such other date that may be fixed by this Court.
According to the writ petitioner, he has been working in the Electricity Department as contract labourer in the District of Kanyakumari from the year 1979 onwards and in spite of his long engagement with the Electricity Department, he was not considered for permanent absorption though he was qualified otherwise in all respects.
It appears that the writ petitioner had represented to the Department for his permanent absorption and since no action was forthcoming, he was constrained to approach this Court by filing Writ Petition in W.P.No.20969 of 1992. This Court, by order dated 27.10.1997, disposed of the writ petition by directing the Department to consider the representation of writ petitioner. In response to the direction of this Court, representation of the writ petitioner was considered by the second respondent and rejected the same on 16.3.1998, stating that as per the Hon'ble Supreme Court order dated 19.1.1995 only the contract labourers whose names were covered in Mr.Justice Khalid Commission Report be absorbed before 31.3.1998. Being not satisfied with the reply given by the Department, the petitioner made another representation to the Department, requesting for reconsideration of his claim since he was not aware as to why his name was not included in Mr.Justice Khalid Commission Report though he had been employed continuously from 1979 onwards. The Writ Petitioner appears to have filed another writ petition in W.P.No.8613 of 2001 and in the light of the petitioner's claim, the said Writ Petition was disposed on 26.4.2001 by directing the first respondent herein to consider the representation dated 23.2.2001 on merits and in accordance with law, within a period of two weeks. The first respondent, in compliance to the directions of this Court, has finally passed order dated 21.3.2002, rejecting the claim of the petitioner on the ground that no materials were produced by the petitioner in support of his claim that he was continuously engaged by the Department. The said rejected letter of the first respondent is impugned in the writ petition.
Heard the learned counsel appearing for the parties.
The learned counsel appearing for the petitioner filed additional typed set of documents, stating that the petitioner was, in fact, engaged by the Electricity Department and a certificate to that effect, issued by the Assistant Engineer of the Electricity Department disclosing that the petitioner was employed as contract labourer for the past 7 years. The said Certificate was dated 9.10.1986. The learned counsel also relied upon the other documents and tried to impress upon the Court about the petitioner's employment with the Electricity Department and submitted that there was no proper consideration by the first respondent and while rejecting the claim of the petitioner, no opportunity was afforded to him and no documents were called for by the first respondent. Therefore, the rejection order, according to the learned counsel for the petitioner was unsustainable both in law and on facts.
Per contra, the learned counsel appearing for the second respondent, who contend that there was proper consideration by the first respondent and the Certificate issued by the Assistant Engineer was not an acceptable document since as per the Circular issued by the Chairman of the Electricity Board, no authority less than Superintending Engineer was empowered to issue Service Certificate. The learned counsel also disputed the claim of the petitioner that he was engaged by the Electricity Department and also contended that the petitioner having not utilized the opportunity, who appeared before the Selection Committee which considered the claims of all the contract employees in furtherance of implementation of Mr.Justice Khalid Commission Report, cannot now agitate the issue after long delay.
Considering the submissions of the parties and the disputed questions of fact, this Court cannot given any finding as to the genuineness of the claim or otherwise of the petitioner. However, at the same time, the case of the petitioner cannot brushed aside as there appears to be some substance in the claim of the petitioner. However, without going into the merits and without giving any finding on the claim made by the petitioner, in fairness of things, it would suffice a direction is issued to the second respondent to afford an opportunity to the petitioner to substantiate his claim with all the documents which he possessed and to take a decision thereon on that basis.
In such view of the matter, the Writ Petition is disposed of, directing the second respondent to afford an opportunity to the writ petitioner to substantiate his claim with all necessary documents in his possession and cause an enquiry into the claim on the basis of the official records available if any and pass a reasoned order, within a period of two months from the date of receipt of a copy of this order. No costs.
suk 03-01-2017 K.K.SASIDHARAN, J. suk Pre delivery order in W.P.NNo.35534 of 2002 03-01-2017 http://www.judis.nic.in