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M.J. Velu Mudaliar Bus Service Vs. Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1960)ILLJ761AP
AppellantM.J. Velu Mudaliar Bus Service
RespondentLabour Court and ors.
Excerpt:
- - as regards the first question the case of the workman is that he presented on behalf of four other drivers and himself a petition to the management in november 1956 for fixation of scales of pay, batta and other amenities and that the management thought that he was organizing his co-workers to make the demands for better amenities and, therefore, terminated his services on a false-pretext of his defective eyesight. service, nellore, have given evidence on behalf of the respondent 2 and have testified to the effect that the eyesight of the workman quite good and that he was an efficient driver......cause on 29 november 1956. he reported the matter through the nellore district motor union to the labour officer, nellore. the labour officer started conciliation proceedings and on 24 march 1957; the management agreed to take back the respondent 2 into service if he produced a certificate from a registered medical practitioner that his eyesight was free from any defect. the respondent 2 had himself examined by one dr. s. venkatasubbiah of nellore who gave him a certificate marked in the case as ex. a. 1, dated 27 march 1957. in spite of the production of the medical certificate the petitioner was not reinstated and in answer to a communication by the labour officer dated 18 april 1957, to take back the second respondent into service, the management replied by their letter dated 19.....
Judgment:
ORDER

Seshachalapathi, J.

1. This is a petition under Article 226 of the Constitution of India praying for the issue of a writ of certiorari directed against the award of the labour court, Guntur, in Industrial Dispute No. 7 of 1958, on its file.

2. The petitioner before me is M.J. Velu Mudaliar Bus Service represented by its manager. It is a motor transport service plying on various routes in the district of Nellore. The respondent 2, Kotilingam, was employed as one of the drivers in the petitioner's bus service. According to him his services were terminated without Justifiable cause on 29 November 1956. He reported the matter through the Nellore District Motor Union to the labour officer, Nellore. The labour officer started conciliation proceedings and on 24 March 1957; the management agreed to take back the respondent 2 into service if he produced a certificate from a registered medical practitioner that his eyesight was free from any defect. The respondent 2 had himself examined by one Dr. S. Venkatasubbiah of Nellore who gave him a certificate marked in the case as Ex. A. 1, dated 27 March 1957. In spite of the production of the medical certificate the petitioner was not reinstated and in answer to a communication by the labour officer dated 18 April 1957, to take back the second respondent into service, the management replied by their letter dated 19 April 1957 requesting the labour officer to direct the respondent 2 to produce a certificate of fitness from the District Medical Officer, Nellore, and offering to pay the necessary expenses in obtaining the certificate. Eventually, the respondent 2 was examined by the District Medical Officer, Nellore, on 25 October 1957, who gave him a certificate of fitness. On 28 October 1957, the labour officer while enclosing a copy of the medical certificate suggested to the management that the respondent 2 might be reinstated and that sum of Rs. 16 being the medical charges Incurred In respect of the examination by the District Medical Officer might also be sent. The management thereupon Informed the labour officer by letter dated 6 November 1957 that they had appointed someone else in the place of second respondent as he did not produce the fitness certificate In time.

3. The conciliation efforts having proved abortive, the Government of Andhra Pradesh In its G.O.Ms. No. 182 (Social Welfare and Labour Department), dated 12 February 1958, referred the dispute under Section 10(1)(c) of the Industrial Disputes Act to the labour court, Guntur, for adjudication. The questions referred to the labour court were:

(1) whether the removal of Sri K. Kotilingam, driver, is justified; and

(ii) If not, to what relief he is entitled?

The labour court registered the dispute as Industrial Dispute No. 7 of 1958 and after considering the statements filed by the respondent 2 the workmen, represented by the Nellore District Motor Labour Union and the management and the evidence, oral and documentary, tendered in the case, held firstly, that the respondent 2 was discharged from service for no fault of his and that the said act of the management was wholly unjustified; and secondly that the workman was entitled to reinstatement with back-wages with effect from 30 October 1957, till the date of reinstatement at Rs. 80 per mensem. It is that award that is sought to be quashed In this petition.

4. In a petition under Article 226 of the Constitution asking that the award passed by the labour court should be quashed, the petitioner will have to establish that the decision rendered by the Court is without jurisdiction or that it Is vitiated by any patent error of law or that the procedure adopted by the Court Is opposed to the principles of natural justice.

5. The two preliminary questions may be considered before dealing with the legal contentions advanced on behalf of the petitioner:

(1) whether the respondent 2's services were terminated by the management on 26 November 1956 as alleged by the workmen; and

(ii) whether In fact the respondent 2's eyesight is defective.

As regards the first question the case of the workman is that he presented on behalf of four other drivers and himself a petition to the management In November 1956 for fixation of scales of pay, batta and other amenities and that the management thought that he was organizing his co-workers to make the demands for better amenities and, therefore, terminated his services on a false-pretext of his defective eyesight. On the contrary, the management's case Is that the respondent 2 absented himself from duty from about 20 November 1956 without Informing them and that it was unable to reinstate him because of his defective eyesight. The labour court has found on the evidence that the case put forward by the management that it did not terminate the service of the respondent 2 on 26 November 1956, but that the workman absented himself without notice to them is not true and that there was an unjustified termination of service as pleaded by the respondent 2. In my view, the conclusion arrived at by the labour court Is correct and Is sustained by the evidence.

6. With regard to the second question as to the impaired vision of the respondent 2, the case of the management seems to be wholly untenable. Dr. Venkatasubbaiah, an eye specialist practising in Nellore, baa been examined as Court witness 1. He gave a certificate of fitness to the respondent 2 which has been marked as Ex. A. 1. He deposed that the eyesight of the respondent 2 was normal in both the eyes. The District Medical Officer, Dr. J. W. Emanual, was examined as C.W. 2. He gave a certificate of fitness to the respondent 2 (Ex. A. 5). The District Medical Officer in his evidence has stated that he examined the respondent 2 on a requisition by the labour officer and that he found the vision of the workman normal in both the eyes. He also testified to the effect that he found the respondent 2 fit to drive public vehicles. P.W. 2, who is a motor employee under the management, and P.W. 3, a supervisor in the employment of N.M.S. Service, Nellore, have given evidence on behalf of the respondent 2 and have testified to the effect that the eyesight of the workman quite good and that he was an efficient driver. Even ignoring for the moment the testimony of P.Ws. 2 and 3, the medical evidence makes it clear that there is no substance whatever in the suggestion made by the management that they could not reinstate the respondent 2 because of his Impaired vision which would seriously interfere with his work as a driver.

7. Mr. Babul Reddi, the learned Counsel for the petitioner, has raised before me three principal questions:

(i) that the labour court had not given the management adequate opportunity to produce witnesses and to file and mark documents on their side;

(ii) that the labour court acted illegally in ordering the reinstatement, because the respondent 2 must on the facts of this case, be deemed to be deserter; and

(iii) that the direction as to the payment of back-wages at the rate of Rs. 80 per mensem is manifestly wrong.

These three defects in the award, according to the learned Counsel, constitute errors of law apparent on the face of the record justifying interference by this Court.

8. As regards the first contention, I am of the view that there is no substance whatever. During the course of the enquiry no witnesses were examined on behalf of the management, nor were any documents filed or marked. After the conclusion of the enquiry an application was filed on 12 August 1958 supported by an affidavit to permit the examination of the clerk of the employer as a witness and to mark the necessary documents. On that application, the labour court passed the following order:

Filed after the close of the proceedings. These documents were not put to P.W. 1 in the course of his examination. I see no reason to reopen the case. Petition rejected in limine.

In those circumstances, I am unable to appreciate the contention of the learned Counsel that the labour court shut out evidence, oral and documentary. The reference to the labour court was made In G.O.Ms. No. 182, dated 12 February 1958. After the reference to the labour court and the registration of the dispute, the management had ample time to gather evidence and adduce the same at the proper time. They did not choose to do so. It was only after the enquiry was closed that some attempt was made to get the case reopened by offering to examine the clerk. I cannot say that in the circumstances the view that the labour court has taken that the evidence could not be received at that stage is either an error of law apparent on the face of the record or opposed to the principle of natural justice.

9. There is also no substance in the second contention that the labour court acted illegally in ordering the reinstatement. Mr. Babul Reddi very properly does not contend, that in appropriate oases the labour courts or tribunals cannot order reinstatement. That in proper cases the labour courts and tribunals could direct the management to reinstate a workman who has been dismissed without due and adequate cause has been held by the Federal Court of India in several cases, Bat what the learned Counsel really contends is that when the management Informed the labour officer on 19 April 1957 that the respondent 2 should produce a certificate from the District Medical Officer, Nellore, within a week, no response was made by him or by the labour officer till 28 October 1957. It la contended that seeing that the respondent 2 had not produced the certificate from the District Medical Officer, within a week, the petitioner made alternative arrangements on footing that the respondent 2 had given UP his ideas of getting back into service. There is no doubt some force in this contention. The respondent 2 in his evidence has stated that he was ill at that time and that he had not the necessary funds to procure the medical certificate from the District Medical Officer, In any case, all the while the District Labour Officer was trying to effect a conciliation and without receiving any final reply from him it is not open to the management to say that it formed the opinion that the petitioner was a deserter.

10. As to the third contention that back-wages should not have been given at the rate of Rs. 80 per mensem, I am of opinion that the evidence in the case fully warrants the finding of the labour court. Kotlllngam himself was examined an P.W. 1. He had stated that till October 1958 he was being paid Rs. 80 per mensem. Mr. Babul Reddi contends that even according to the case of the respondent 2 himself he was receiving' only Rs. 2-8-0 per day. I do not think that the finding of the labour court based upon the evidence of PW. 1 can be challenged in this petition. I am by no means persuaded that there is any order of law la this regard. Mr. Babul Reddi contended that it will be very hard on the management if it is asked to reinstate the respondent 2 is the circumstances of the case. Quite apart from the injury to the morale and discipline of the staff in the establishment, the reinstatement at this stage would upset the alternative arrangement already made and would Involve the management in extra and unnecessary costs and expenses. However, relevant these considerations may be, a workman whose services are terminated without proper reason and contrary to law can claim the reliefs to which he is entitled to under the provisions of the Industrial Disputes Act.

11. In the result, the petition fails and is dismissed with costs of the respondent 2. Advocate's fee Rs. 100.


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