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THE SUPERINTENDING ENGINEER versus K. VARGHEESE

High Court of Madras

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The Superintending Engineer v. K. Vargheese - WRIT PETITION NO.8220 OF 1995 AND W.M.P.NO.13160 OF 1995 [2002] RD-TN 211 (28 March 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:28.03.2002

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA

WRIT PETITION NO.8220 OF 1995 AND W.M.P.NO.13160 OF 1995 The Superintending Engineer,

Tamil Nadu Electricity Board,

Kuzhithurai Construction II,

Kuzhithurai .. Petitioners Vs.

1. K. Vargheese 2. K. Rajamony

3. S. Sundaresan

4. K. Arjunan

5. C. Sukumaran

6. C. Appukuttan

7. The Presiding Officer,

Labour Court,

Tirunelveli. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari as stated therein. For Petitioner : Mr.V. Radhakrishnan For Respondents : Mr.A. Selvaraj : J U D G M E N T

This writ petition has been filed on behalf of Tamil Nadu Electricity Board challenging the award passed by the Labour Court directing absorption of the present respondents 1 to 6 as helpers under the Board.

2. Respondents 1 to 6 in their claim petition in I.D.No.15 of 1986 alleged that

". . . they had been doing various electrical works in the construction II section of Kuzithurai of the respondent employment for more than four years from 1980 onwards and they had done a lot of electrical works under the above construction section such as erection and stringing of 11 KV and L.T. lines and erection of transformer structure, service connection, etc. These items of work can be provided only by the respondent Management as the Electricity System is controlled only by the Tamil Nadu Government and these kinds of work could not be provided by any other private managements and so the petitioners had been completely working under the control and supervision of the employee engaged by the respondent and the staff and officers of the respondent Management."

3. It was further asserted that they had worked for more than 480 days and as such should have been conferred permanent status under Section 3 of the Tamil Nadu Industrial Establishment (conferment of permanent status to workmen) Act, 1981. It was further claimed that the Management refused to engage the respondents 1 to 6 with effect from 23.5.1983 and certificates were issued on 31.5.1983. It was further aSserted that though the respondents approa ched the junior Engineer Thiru N. Natarajan, Construction Section II, Tamil Nadu Electricity Board, Kuzhithurai and Sub-Junior Engineer Ashok for giving work to the present respondents, no action was taken. By way of amendment to the claim petition, the respondents also referred to a decision of the Supreme Court in Re.S.L.P.No.1820 of 1990 and the subsequent report of Justice Khalid Commission which had been entrusted by the Supreme Court to look into the matter. On the basis of the aforesaid allegations, the respondents claimed that they should be reinstated in service with full backwages and should be absorbed permanently.

4. In the counter affidavit filed before the Labour Court on behalf of the Board, the allegations made in the claim petition were denied. It was specifically stated that the present respondents were not employed under the Board.

5. The Labour Court relying upon the certificate issued by N. Natarajan, Junior Engineer, Tamil Nadu Electricity Board, held that the Management had not examined the Engineer to prove that the claimants had not worked under the said section and since the Management had not adduced any evidence against the contentions made by the claimants, there was no other way than to accept their contentions. The Labour Court also referred to the report of Justice Khalid Commission and gave directions to the Management to engage the claimants as helpers without any backwages.

6. A perusal of the award passed by the Labour Court makes it clear that the Labour Court has primarily relied upon the certificate issued by one N. Natarajan, purporting to be the Junior Engineer of the Board. The Labour Court has observed that the Management had not examined the said engineer and had not adduced any evidence against the contentions made by the claimants. It has to be borne in mind that the Management had all along taken the stand that the claimants were not employed by the Board and had even stated that N. Natarajan was not a junior engineer working under the Board during the relevant time and had no authority to give any certificate. When the existence of relationship of employer and employee had been denied, the onus was on the shoulder of the claimants to prove that they were engaged by the Board. If the claimants were directly engaged by the Board on daily wage basis and were subsequently terminated without following the procedure contemplated under law, the question was required to be determined keeping in view the provisions contained in The Industrial Disputes Act and also in accordance with the provisions contained in Tamil Nadu Industrial Establishment (conferment of permanent status to workmen)Act. On the other hand if the claimants were engaged as labourers under a contractor, the question to be determined was whether they were entitled to be absorbed on permanent basis in accordance with Justice Khalid Commission Report.

7. It appears that the Labour Court has not applied its mind on the aforesaid basic aspect regarding nature of employment. As already indicated, the Labour Court has primarily depended upon the certificate issued by N. Natarajan, purportedly the Junior Engineer working under the Board. Even assuming that the aforesaid Natarajan was Junior Engineer working under the Board at the relevant point of time, the certificate issued by him in respect of the claimants did not indicate that the respondents had worked under the Board as employees. The Labour Court itself has referred to the certificate which is extracted hereunder :-

" . . . This is to certify that K. Vargheese, son of Thiru Kochappi Nadar, Karaikkadu Veedu, Vaniyoor, Vaniyoor Post, Kanyakumari District is personally known to me for the past four years. He is able to do the electrical works such as erection and stringing of 11 K.V. and L.T. lines and erection of Transformer Structure, etc. His Conduct and Character are very good . . ."

Similar certificates had been issued to the other five claimants.

8. Aforesaid portion as extracted by the Labour Court does not indicate about any employment under the Board. It merely states the ability of the person concerned to do electrical works such as erection and stringing of 11 KV and L.T. lines and erection of Transformer Structure, etc. The Labour Court proceeded on the assumption that the Certificate related to the services rendered by the claimants for four years under the Board. This appears to be a clear error of record as the Certificate does not indicate anywhere about the employment of the claimants under the Board nor even the length of period of such employment. Merely because the claimants were known to the person for the past four years, it does not mean that they had worked under the Board for four years. This basic misconception and error on record has vitiated the decision of the Labour Court.

9. The Labour Court has also referred to the Report of Justice Khalid Commission and extracted paragraph 29 of such report. The Labour Court seems to have missed the point that the claim of the present respondents had not been agitated before Khalid Commission and the Report had only recommended absorption for the persons whose cases had been considered by the Commission. Persons who had not agitated their claim before Justice Khalid Commission had subsequently filed various writ petitions in this court and by the judgment dated 7.9.1995, a learned Judge of this Court negatived their claim for being absorbed on regular basis.

10. The following observations were made by the learned single Judge in the judgment dated 7.9.1995 in W.P.Nos.12869 of 1991 and other connected matters :-

" . . . The undertaking given by the Board to the Supreme Court to abide by the report of the commission and to relax the prescribed qualifications is limited to the persons who were before the Commission, and cannot be extended to those who did not avail of the opportunity to approach the Commission. No person whose name was not included in the lists before the Commission can claims any right, by reason of anything contained in the report of the Commission. . . . The petitioners therefore do not have any legal right to assert claim that a valid and binding regulation should be relaxed for the purpose of employing them in the post of helpers, or claim parity in treatment with those workmen whose names were included in the lists which form a part of the report of the Commissiion; even after they had neglected to plead their claim before before the Commission. . . . It was contended for some of the petitioners that the records in the possession of the petitioners, as also the records of the Board, would disclose that they had in fact, worked as contract labourers in the past for periods ranging from one to ten years, and therefore, after verifying that service, they should be given the same treatment, as was given to those who had put in similar number of years of service and whose recruitment was directed by the Commissiion, in the order of priority laid down in paragraphs 100 and 104 of the report of the Commission. This argument has to be rejected, as the question now, is not whether any of the petitioners had worked as contract labourer in the past. The only relevant question now is whether the claim of that person had been put forward before the Commission and his name is to be found in one or other of the lists which form part of the Report of the Commission.

. . . Some of the learned counsel appearing for the petitioners submitted that the right of the petitioners to agitate their claims, after the Board absorbs all the workmen in the lists before the Commission, should be left open so that they may reagitate the same at a future date and if necessary before the Industrial Tribunal or Labour Court. I do not see any justification for accepting to such a request. As noticed more than one earlier in the course of this order, the rights, if any, of the petitioners have been lost due to their inaction in not appearing before the Commission, that issue cannot be reopened now or in the future. The question of reserving liberty to them to agitate their rights in other proceedings in future therefore, does not arise."

11. Keeping in view the aforesaid observation, it is clear that if the claimants are held to be labourers under contract labour system, their plea for absorption on permanent basis has to be considered only in the light of the recommendations made by Justice Khalid Commission. On the other hand if it is found that they were in fact directly employed under the Board on daily wages and had been subsequently refused work, their cases are required tobe considered in the light of the provisions contained in the Industrial Disputes Act and Tamil Nadu Industrial Establishment (conferment of permanent status to workmen) Act. These aspects should have been kept in mind by the Labour Court while deciding the matter.

12. If the Labour Court finds that the claimants / respondents were directly engaged by the Board, the question of reinstatement / regularisation is to be considered in accordance with the provisions contained in the Industrial Disputes Act and the Tamil Nadu Industrial Establishment (conferment of permanent status to workmen) Act. On the other hand if it is found that the respondents / claimants were engaged under the contractor, the question of their absorption is to be determined keeping in view the report of Justice Khalid Commissiion as well as the observations made by the High Court in W.P.Nos.12869 of 19 91 and other connected matters.

For the aforesaid purpose, the Labour Court would give further opportunity to both the parties to adduce further evidence if they so like. The matter has to be decided within a period of six months from the date of receipt of the order. To facilitate early disposal, the parties are directed to appear before the Labour Court on 22.4.2002. There shall be no order as to costs,. Consequently, WMP.NO.13160 of 1995 is closed.

28.03.2002

Index : Yes/No

Internet: Yes

dpk

To

The Presiding Officer,

Labour Court,

Tirunelveli.

Judgment in W.P.No.8220/1995

and WMP.NO.13160 OF 1995

28.03.2002

? IN THE HIGH COURT OF JUDICIATURE AT MADRAS

Dated: 27.02.2002

* Coram

Honourable Mr.Justice N.DHINAKAR

and

Honourable Mr.Justice A.PACKIARAJ

+ Criminal Appeal No.843 of 1995

# Karuppiah

S/o Samban : Appellant vs.

The Inspector of Police,

Kottaipattinam Police Station,

Pudukottai District. : Respondent Appeal against the judgment dated 27.8.1993 in Sessions Case No.40 of 1993 delivered by the Sessions Judge, Pudukottai. For Appellant : Mr.A.Muralidharan For Mr.V.Dakshinamoorthy For Respondent : Mr.S.Jayakumar Addl. Public Prosecutor : J U D G M E N T



(Judgement of the court was delivered by N.DHINAKAR, J.) The appellant, who hereinafter will be referred to as the accused for the sake of convenience, was tried before the learned Sessions Judge, Pudukottai, in Sessions Case No.40 of 1993, on a charge of murder with an allegation that at 6.00 p.m. on 24.5.1992, he caused the death of his wife, Kamatchi, by cutting her indiscriminately with an aruval, M.O.1. The learned Sessions Judge convicted and setenced the accused to imprisonment for life. Hence, the present appeal.

2. The case of the prosecution can be briefly summarised as follows:- The accused is the husband of the deceased and they were married ten years prior to the date of incident. An year and six months prior to the date of incident, the accused developed intimacy with one Selvi and therefore, there were quarrels between the accused and the deceased. A panchayat was convened and though the accused was advised, the quarrels continued. A month prior to the date of incident, the deceased left the house of her husband, the accused, and went away to Kodikkulam, where her brother was staying. The accused used to go to Kodikkulam and request the deceased to return to her matrimonial home; but, the deceased was refusing to go to the house of the accused.

3. On 24.5.1992 at about 6.00 p.m., P.W.1, P.W.2 and the deceased were sitting in front of the house of P.W.1. The daughter of P.W.1 was also present. The accused went there armed with an aruval, M.O.1. On seeing the accused coming with an aruval, the deceased started running chased by the accused. The deceased covered a distance of 15 feet and the accused caught-hold of her. Thereafter, the accused inflicted several cuts on various parts of her body. The incident was witnessed by P.W.1, P.W.2 and the daughter of P.W.1. They raised alarm and on hearing the cries, the Talayiri and others rushed to the scene. The accused ran away from the place towards north carrying the aruval with him. The deceased, who was injured, was placed in a bullock-cart and taken to Kottaipattinam Police Station, where she gave a complaint to P.W.7, the Sub-Inspector of Police, which was reduced into writing. The said complaint is Ex.P-1. P.W.7, on the basis of the complaint, registered a case in Crime No.391 of 1992 against the accused by preparing express reports and Ex.P-13 is a copy of the printed First Information Report. He took up investigation in the case. He referred the deceased Kamatchi to the hospital for treatment.

4. On being referred, P.W.4, the duty medical officer attached to Pudukottai Government Hospital, examined Kamatchi at about 11.10 p.m. and found several cut injuries on her person and thereafter, admitted her into the hospital. Inspite of the treatment, Kamatchi breathed her last at about 6.00 a.m. on 25.5.1992 and the doctor issued Ex.P-6 , the death intimation, to the police authorities.

5. Meanwhile, P.W.7, who was conducting the investigation, proceeded to the scene of occurrence and prepared an observation mahazar, Ex.P-4, in the presence of P.W.3. He seized M.O.2 blood-stained earth and M.O.3 sample earth under a mahazar Ex.P-5. He examined P.Ws.2 and 3 and recorded their statements. On receipt of the death intimation, Ex.P-6, the crime was altered to one under Section 302 IPC and Ex. P-15 is the express report in the altered crime. Investigation was thereafter taken up by P.W.8, Inspector of Police, Kottaipattinam.

6. On taking up investigation, P.W.8 went to Government Hospital, Pudukottai, where he conducted inquest over the dead body of Kamatchi between 1.00 p.m. and 3.00 p.m. in the presence of panchayatdars during which, P.Ws.1 and 2 were questioned and their statements were recorded. Ex.P-16 is the inquest report. After the inquest was over, a requisition was issued for conducting autopsy.

7. On receipt of the requisition, P.W.5, Civil Assistant Surgeon, Government Hospital, Pudukottai, conducted autopsy on the body of Kamatchi at 3.45 p.m. on 25.5.1992 and she found the following external injuries:-

1.A cut injury on the right shoulder to a length of 15 cm. 2.A 'V' shaped cut injury measuring 7 cm x 2 cm extending from dorsum of the hand to the middle of the palm.

3.Fracture of metacarpal bone.

4.A bone-depth cut injury to a length of 7 cm on the left scaple. 5.A linear cut injury to a length of 2 cm on the tibia. 6.Foot amputated at the level of tibia and metatarsal joint. The doctor found the hyoid bone intact. She issued Ex.P-7, the post-mortem certificate, with her opinion that the deceased Kamatchi died on account of shock and haemorrhage due to multiple injuries about 9 to 10 hours prior to post-mortem.

8. P.W.8, in the meantime, searched for the accused and at 4.00 p. m. on 29.5.1992, arrested him near a bus-stand in the presence of P.W.2. When questioned, the accused gave a statement and in pursuance of the admissible portion of the said statement, Ex.P-2, the police party was taken to Vichur village where M.O.1, an aruval, was produced and the same was seized under a mahazar Ex.P-3 attested by P.W.2. The material objects seized in the case were sent to the court with a request to forward them for analysis. The court, by forwarding the material objects, obtained Ex.P-11, the report of the chemical analyst, and M.O.12, the report of the serologist, which are to the effect that M.O.1 contain human blood. Further investigation was taken up by the successor-in-office to P.W.8 and he, after verifying the investigation conducted by P.W.8 and completing the investigation, filed the final report against the accused on 7.7.1992.

9. When questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, the accused, while denying the circumstances, filed a written statement in which, he has stated that the deceased, before she left her matrimonial home, complained to him frequently that his second wife Selvi was in illicit intimacy with one Subbiah and that there used to be frequent quarrels on account of these quarrels between him and the deceased, the deceased left her matrimonial home for Kodikkulam. He has further averred that he went to the house of the brother of the deceased at Kodikkulam to bring her back to matrimonial home and she not only refused to go along with him; but, on the contrary, abused him in filthy language by telling him that his second wife Selvi is in illicit intimacy with another person and that she will not permit him to make her also sleep with the paramour of his second wife and on account of such words uttered by her, he lost his bearings and cut her. In short, he pleaded grave and sudden provocation.

10. The fact that the deceased Kamatchi died on account of homicidal violence stands proved through the evidence of P.W.5, who conducted autopsy and issued Ex.P-7, the post-mortem certificate. The accused also did not dispute the fact that Kamatchi died on account of the injuries suffered by her. We, therefore, hold that the prosecution has succeeded in establishing that Kamatchi died on account of homicidal violence.

11. P.Ws. 1 and 2 were examined to speak about the incident. Both are independent witnesses. They have, in their evidence, stated that on the date of incident when the deceased was sitting in front of the house of P.W.1, the accused went there armed with an aruval, M.O.1, and that he cut her on several parts of the body after chasing her to a distance of 15 feet. The defence did not succeed in eliciting any answer in their favour except to make a suggestion to P.W.1 that because the deceased used a language provoking the accused, she was cut. Except for the above suggestion, which is not probablised by any material, there is nothing in the evidence of P.Ws.1 and 2 for this court to hold that the deceased was not cut by the accused. In fact, in the written statement filed by the accused under Section 313 Cr.P. c., the accused has also admitted that he has cut the deceased. We, therefore, hold that the deceased suffered injuries at the hands of the accused.

12. The final question, that is to be decised by us, is whether the accused cut the deceased on account of grave and sudden provocation. As we have already stated that except for making a suggestion to P. W.1, no material was produced by the defence to say that the deceased used provocative language. In his written statement filed under Section 313 Cr.P.C., the accused has stated that the deceased Kamatchi, who is his wife, left her matrimonial home after picking up quarrels with him, by saying that his second wife is in illicit intimacy with a person called Subbiah. It is his further averment in the written statement that on the date of incident, when he went to Kodikkulam village and requested her to return to her matrimonial home, she refused to go along with him and that she abused him and also told him that she will not permit him to make her sleep with Subbiah. As this statement of the accused is not supported by any material, the written statement of the accused filed under Section 313 Cr.P.C. is, in our view, only an afterthought and must have been made on advice. Mere suggestion to a witnesss is not sufficient for us to hold that the accused cut the deceased on account of grave and sudden provocation.

13. Section 105 of the Evidence Act contemplates that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such cirumstances. The words "... the Court shall presume the absence of such circumstances", are significant, in that, unless the accused establishes that his act falls within any of the Exceptions, the Court shall presume the absence of circumstances. In the present case, the accused did not produce any material and has not substantiated the averments made in his written statement filed under Section 313 Cr.P.C. that the deceased was cut by him due to grave and sudden provocation. Therefore, the court cannot but hold that the accused has committed the offence of murder and he is not entitled to the benefit of any of the exceptions.

14. On the discussion made above, we feel that the learned Sessions Judge was justified in convicting and sentencing the appellant/ accused as stated above. The appeal, therefore, deserves to be dismissed and is, accordingly, dismissed.

(N.D.,J.) (A.P.J.)

27.02.2002

Index : Yes/No

Website: Yes

sbk

To

1.The Sessions Judge,

Pudukottai.

2.The Public Prosecutor,

Madras.

3.The Inspector of Police,

Kottaipattinam Police Station,

Pudukottai.

N.DHINAKAR,J. and

A.PACKIARAJ, J.

Criminal Appeal

No.843 of 1995

27.02.2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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