Judgment:
ORDER
K. Chandru, J.
1. W.P. Nos. 4821 and 4822/1998 were filed by the Management of D.C. Diwan Mohideen Beedi Factory while W.P. Nos. 5804 and 5805/1998 were filed by the Management of S.K.S. Pookoodal Beedi Factory and were directed against the order dated December 31, 1997 passed by the appellate authority under the Beedi and Cigar Workers (Conditions of Employment) Act 1966.
2. W.P. No. 13254/1998 is filed by one Zulekha and 37 others against the common order dated October 29, 1997 passed by the Labour Court, Salem in various C.P. Nos.
3. W.P. No. 14036/1998 is filed by one Ansarbi and 55 others against the common order dated October 29, 1997 passed by the Labour Court, Salem in C.P. Nos. 286/1996, etc.
4. With the consent of the parties, the writ petitions were heard together and a common order is passed.
5. Heard the arguments of Mr. M.R. Raghavan, learned Counsel appearing for the Management and Mr. S. Arunachalam, learned Counsel appearing for the workmen and perused the records.
6. The case of the workmen in the appeal filed before the appellate Authority was that they were working as home workers employed by the contractors under the trade mark owners for several years. During the year 1994, they became members of the Salem District Beedi, Cigar and Tobacco General Workers' Union. They filed petitions for minimum wages before the Labour Court and, therefore, aggrieved by the same, the respondent Management orally terminated their services. The respondent Management denied the employment of their workmen and, therefore, contended that since they were their workmen, question of orally terminating their services does not arise. Therefore, they filed appeals under Section 31(2) of the Beedi and Cigar workers (Conditions of Employment) Act, 1966 (for short, 'Beedi and Cigar Act') and their appeals were assigned different numbers and notices] were ordered to the respondent Managements.
7. W.P. No. 4821/1998 related to 28 workers. All the 28 workers deposed before the appellate authority as W.W.I to W.W.28. On the side of the Management, one Badusha Mohideen was examined as M.W.I. The workmen filed 8 documents and they were marked as Exhibits W-l to W-8 while 5 documents, which were marked as Exhibits R-1 to R-5, were marked on the side of the Management.
8. The appellate authority, on an analysis of all the materials placed before it, came to the conclusion that it was a fact that on December 12, 1994 , the Trade Union of the petitioners sent a letter to the Inspector of Labour complaining that the trade mark owners under whose behest the beedi workers were engaged, are not paying minimum wages and other statutory benefits under the Act and they are not issuing Identity Cards (ID Cards) for the workmen. Further, on December 26, 1995, the Trade Union gave a letter to the district; Collector complaining about the non-payment of minimum wages and issuance of ID Cards to them. They also stated that 1119 workers, who have been in the Registers, have been recorded as workers. Similar complaints have also been sent to various higher officials in the Labour Department. Based upon this, the Deputy Commissioner of Labour, Salem directed Inspector of Labour to investigate the same and provide Identity Cards to the workers, mentioned by the Union. Based upon the said direction, the Assistant Inspector of Labour and Deputy Inspector of Labour investigated the matter and granted ID Cards to workmen and the workmen herein filed those cards which were marked as Exhibit W-l series.
9. However, the respondent Management stated that under Rule 41 of the Beedi and Cigar Workers (Conditions of Employment) Rules, 1978, the ID Cards will have to be given under Form E and that has to be signed either by the Beedi and Cigar Establishment or contractors and, therefore, the ID Cards given by the Inspectors of the Labour were not valid.
10. The appellate authority rejected the objection and held that it was unnecessary to go into the question as to who is the authority empowered to grant certificate for the purpose of this case. But, however, the ID Cards given by the Department can be taken as piece of evidence to prove the employment status of the workmen. It was noted that there were 11 contractors employed by the trade mark owners and they produced the Registers to show the bonus given to the workmen and also the EL Wages Register and stated that none of the workers actually employed by them have come before the authority. The appellate authority rejected the stand of the Managements and held that that the Monthly Returns under Rule 35(2) of the Tamil Nadu Beedi and Cigar Workers (Conditions of Employment) Rules, 1978 (for short, 'Rules') and Annual Returns in Form (sic) 12 under Rule 36 of the Rules are bound to be maintained by the trade mark owners and if they had filed the same, it would have revealed the quantity of beedis rolled by the home Workers. With that the number of home workers employed by them in those establishments could have been found out. Since no satisfactory document has been filed, the authority was not bound to take note of those self-serving registers produced by the Managements.
11. It was also held that the orders of the Labour Court made under Section 33(C)(2) of the Industrial Disputes Act, 1947 (for short, 'I.D. Act') against the workmen was not binding on the appellate authority and the so-called plea of non-joinder of the appropriate contractors will not vitiate the appeals. In that view of the matter, the first respondent held that the workmen were employed by the contractors and they are eligible for protection under the Beedi and Cigar Act and since their oral termination was contrary to the principles of natural justice and made without any reasonable cause, they are eligible to be reinstated with backwages and all other attendant benefits.
12. Similarly, in W.P. No. 4822/1998 where the issue involved is relating to only one worker, identical contentions were raised by the Management and similar relief was granted.
13. In W.P. No. 5804/1998, 23 workers have given evidence as W.W.I to W.W.23. On behalf of the Management, one Aneef was examined as M.W.I. The workmen filed 8 documents including their ID Cards and they were marked as Exhibits W-l to W-8 and the Management filed 2 documents and they were marked as Exhibits R-l and R-2. In that, one document relates to an ID Card relating to the said Aneef and he was examined as M.W.1. Since similar contentions were raised as in the earlier writ petitions, the appellate authority, by his common order dated December 31, 1997, granted relief of reinstatement with backwages and all other attendant benefits to all the workmen.
14. W.P. No. 5805/1998 relates to the common order of the appellate authority passed in the appeals filed by the workers. All the eight workmen deposed before the authority as W.W. 1 to W.W.8 and one Aneef was examined as M.W.I on the side of the Management. The workmen filed 8 documents and they were marked as Exhibits W-l to W-8 while the Management filed two documents, which were marked as Exhibits R-l and R-2. Identical contentions were raised before the appellate authority and he came to similar conclusions as in the other cases and directed reinstatement of the workmen with attendant benefits.
15. Pending the writ petitions, interim stay was granted on April 24,1998 and it was made absolute on August 29, 2003. Mr. M.R. Raghavan, learned Counsel appearing for the, Managements submitted that the orders passed by the appellate authority are illegal and contrary to the records. When the Managements have taken a stand that the contesting respondents are not their workmen, it is for the workmen to prove the relationship of master and servant between the parties. The ID Cards produced by the respective contesting respondents are not valid in the eye of law because under Rule 41 of the Rules read with Form E, the ID Cards will have to be signed either by the trade mark owner or the contractor and the Inspectors of Labour Department cannot issue any ID Card. Therefore, once that piece of document is eschewed, there is no material to prove the relationship of master and servant between the parties. Further, he submitted that the Labour Court, by two common orders, rejected the case of the workmen and, therefore, the appellate authority cannot brush aside the said findings.
16. Per contra, Mr. Arunachalam, learned Counsel appearing for the contesting respondents submitted that notwithstanding the enactment of the Beedi and Cigar Act, the beedi owners have been indulging in different tactics to deny relationship of employer-employee. The Act has been upheld by the Supreme Court and in Mangalore Ganesh Beedi Works v. Union of India : (1974)ILLJ367SC . Therefore, the trade mark owners are liable for payments due to the workmen. Further, he submitted that the Trade Union of the workmen have been making serious representations to the authorities to compel the employers to provide the ID Cards and also about the fact that the employers were maintaining fake muster roll. It is in that context, the authorities have inspected the various places and granted the ID Cards to the real workers and not to the benami persons. Apart from the series of correspondence, each of the workmen have also deposed before the appellate authority and on the side of the Management, there is no satisfactory rebuttal evidence in this regard.
17. The learned Counsel also referred to the various devices adopted by the employers in ' denying the just rights of the workmen. In this context, he referred to the judgment of the Supreme Court in Hussainbhai, Calicut v. Alath Factory Thozhilali Union, Kozhikode : (1978)IILLJ397SC and relied on the following passages found in paragraphs 4 to 6 at p. 398 of LLJ:
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 Mangalore Ganesh Beedi Works v. Union of India (supra) 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.
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.
18. He also referred to the judgment of the Supreme Court in an identical case arose on an appeal under Section 31(2) of the Beedi and Cigar Act in Sudhoo v. Haji Lal Mohd. Biri Works : (1990)IILLJ598SC :
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 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)
In the light of the same, the learned Counsel prayed for dismissal of the writ petitions.
19. The contention of the learned Counsel for the Managements that the contesting respondents are not their workmen has to be necessarily rejected on the following grounds::
(a) That all the workmen have given oral evidence which are not controverted by any material witness on the side of the Managements.
(b) The workmen have produced the ID Cards given by the Labour Inspectors, which may not be an ID Card in terms of Form E read with Rule 41 of the Beedi and Cigar Rules. But, yet, it can be relied upon as a piece of evidence for the purpose of proving that the contesting respondents were not strangers.
(c) The appellate authority was correct in stating that the Monthly Returns under Rule 35 and Annual Returns under Rule 36 have not. been filed before him and, therefore, the authority cannot rely upon the self-serving statements made by the employers. The appellate authority was also correct in stating that inasmuch as the appeal lies under Section 31 of the Beedi and Cigar Act and he, being an authority under special enactment, can go into the evidence and decide the relationship between the parties. The petition under Section 33(C)(2) of the I.D. Act is in the nature of execution proceedings. Therefore, the same is not binding on him. In fact, Courts have held that even a finding under Section 33(2)(b) of the I.D. Act will not operate as a res judicata in a proceedings under a regular reference.
20. In the light of the pronouncement of; the Supreme Court referred to above and in the light or the tactual finding rendered by the appellate authority, this Court is not inclined to interfere with the orders impugned in these writ petitions by exercise of the power conferred on this Court under Article 226 of the Constitution of India. Accordingly, both the W.P. Nos. 4821, 4822, 5804 and 5805/1998 are liable to be dismissed.
21. This takes us to the other two writ petitions, viz., W.P. Nos. 13254 and 14036/1998 filed by the workmen challenging the two orders dated October 29,2007 made by the Labour Court. In these two writ petitions, the workmen filed Claim Petitions before the Labour Court each one claiming minimum bonus, wages for national and festival holiday and for Earned Leave and altogether a sum of Rs. 1452.30.
22. The Managements filed counter stating that they are not their workmen and, therefore, the question of any payment does not arise. On the side of the workmen in the respective petitions, all the workmen gave oral evidence and also marked documents. The Managements examined only one person and marked some documents to show that they are maintaining registers. The crucial document upon which the workmen placed reliance was the ID Cards given to various workmen by the Inspectors of Labour.
23. The Labour Court, instead of appreciating the oral evidence given by the workmen, rejected the documentary evidence produced by the workmen relating to the ID Cards. It held that these ID Cards are not given by the authorised persons and that the Inspectors were not examined before it. The ID Cards can only be given by the employer under Rule 41 and the Inspectors appointed under the Beedi and Cigar Act are not authorised to give ID Cards. The Labour Court failed to take note of Section 7(1)(a) by which the Inspectors were allowed to conduct examination or hold such enquiry as may be necessary, for ascertaining that the provisions of the Act are being complied with in all places. If such exercise is being carried on by the Inspectors and whatever Cards they have signed, is only stated to be a finding rendered by them regarding the employment of the workmen. The Labour Court also failed to note that under Rules 35 and 36 of the Beedi and Cigar Rules, monthly and annual returns alone can show the number of workers employed by an agent by calculating the number of Beedis rolled out in that establishment every day. It went on a tangent and held that the registers maintained by the employers and produced before it were reliable documents. The complaint of the workmen to the effect that though a number of workers were engaged as home workers, they were not given ID Cards, must be tried in a regular industrial dispute.
24. It is not as if the ID Cards given by the Inspectors of Labour are totally irrelevant documents. They can be taken note of coupled with the fact that all the workmen have given oral evidence which are not controverted by any tangible material witness on the side of the Managements. As already noted, the Supreme Court in Hussainbhai Calicut v. Alath Factory Thozhilalar Union (supra) case held that the Court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances. It was also held in Sudhoo v. Haji Lal Mohd. Biri Works (supra) that the Act is a measure of social legislation to give protection to the workmen employed in Beedi and Cigar industries and that the provisions are to be liberally constituted.
25. Further, the Supreme Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha : (1980)ILLJ137SC , has approved a test which can be made use of in case of doubts by an authority. It is the application of a Gandhian guideline found in paragraph 145 and it may be usefully extracted below at p. 173 of LLJ:
Para 145: '....This Court has, in a very different context though, drawn attention to the Gandhian guideline:Whenever you are in doubt...apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him.
26. It must be noted that subsequent to the decision of the Labour Court, the appellate authority constituted under Section 31(2) of the Beedi and Cigar Act found that the workmen are workers under the respective Managements and also set aside the oral terminations made against them. This Court has also upheld those orders in W.P. Nos. 4821, 4822, 5804 and 5805/1998 today by a common judgment.
27. In the light of the above, the orders passed by the Labour Court challenged in these two writ petitions have necessarily to be set aside. Accordingly, these two writ petitions are allowed and the orders impugned in these two writ petitions are set aside. Since the workmen have claimed a fixed sum of Rs. 1,452.30 and the employers have denied them only on the ground or lack of relationship between them and the workmen and this Court having disbelieved such a stand, it is unnecessary to remand this matter for any finding to be given regarding the amounts claimed. In the absence of any credible counter and the question of relationship of master and servant having been established, the respective Managements are directed to Day each of the workmen a sum of Rs. 1,452.30 for which claims have been made before the Labour Court in the proceedings initiated under Section 33(C)(2) of the I.D. Act.
28. In the result,
(i) W.P. Nos. 4821, 4822, 5804 and 5805/1998 are dismissed. The Managements are directed to implement the order of the appellate authority within a period of four weeks from the date of receipt of a copy of this order. However, there will be no order as to costs.
(ii) W.P. Nos. 13254 and 14036/1998 are allowed the orders impugned therein are set aside. The respective Managements are directed to pay each of the workman covered by these two writ petitions a sum of Rs. 1,452.30 within a period of eight weeks from the date of receipt of a copy of this order.
29. However, there will be no order as to costs.