Andhra HC (Pre-Telangana)
K. Chandramma vs Labour Court-I, Hyderabad And Ors. on 17 April, 1997
Equivalent citations: 1997(3)ALD665, 1997(3)ALT406, 1997(2)APLJ52, (1997)IILLJ992AP
JUDGMENT P.S. Mishra, C.J.
1. After hearing learned Counsel for the parties, since we are inclined to interfere with the judgment and the award in I. D. No. 350 of 1993 dated August 24, 1995 and propose to remit the matter to the Labour Court for re-hearing of the case and disposal of the same in accordance with law, we do not intend to express ourselves in respect of all such matters which are to he gone mto in the proceeding and in respect of which, Labour Court as well as learned single Judge in W. P. No. 30081 of 1995 has recorded some findings.
2. The relevant facts are as follows :
The petitioner-appellant worked under the second and third respondents, who represent the Hyderabad Metro Water Works and Sewerage Board. When she was removed from service and she raised Industrial Dispute, one of the pleas to be decided was whether she worked for a continuous period of 240 days and in view of that, she was entitled to be retained in service until action was taken in accordance with Section 25-F of the Industrial Disputes Act, Learned Single Judge has observed as follows :
"The learned Counsel for the petitioner submitted that no evidence whatsoever was produced by the respondent and no material was made available by the respondents before the Labour Court. It is submitted that the respondent-Board ought to have made available the record maintained by it in this regard. I express my inability to agree with the submissions made by the learned Counsel for the petitioner, as it is for the petitioner to prove her case by producing the necessary material in support of her case and it is not for the respondents to prove the case of the petitioner. At any rate, the record does not disclose that any such effort was made by the petitioner to get any record summoned from the custody of the respondents. In such view of the matter, I cannot interfere with the finding of the fact arrived at by the 15 Tribunal. However, learned Counsel for the petitioner submits that nothing prevents this Court in issuing appropriate directions to the respondent-Board to consider the case of the petitioner, in case if any recruitment is to be made for future vacancies that may arise. The mere fact that the Labour Court dismissed the claim of the petitioner for re-instatement into service would not disentitle her from being considered for the appointment, if any, for future vacancies in accordance with law."
3. It is not in dispute that the petitioner-appellant has been working as a Sweeper under the control of the third respondent and she is an illiterate woman. Courts in India have on the rule of evidence enshrined in Secs. 101 and 102 in Chapter 7 of the Evidence Act, have taken the view that pardanashin women belonging to some communities as well as illiterate women, for the reason that they transact their business generally through malefolk only, that men always dominated women and that this being the curse always surrounding wonienfolk even though law recognised their independent rights, is challenged to the extent of the application of the principle of non estfactum. A brief history of the rule of non est factum, scriptwn predictum non estfactum sum is narrated by one of us in a Bench decision of the Madras High Court in K. Vardhan v. Pattammal (died) andfour others 1992 LW 209. The rule in this behalf is called out in the said judgrnent as follows :
"Non estfactum, scrotum predictum non est factum sum assumed great significance in course of time. In Cheshire and Fifoot's Law of Contract Tenth Edition at page 229 the principle is found stated and the learned single Judge has also noted this :
"In the course of its development this plea of non estfactum was made available to a defendant who could not read, whether Owing to illiteracy or blindness, so as to enable him to escape liability upon proof that the written terms of the deed did not correspond with its effects as explained to him before he put his seal to it. In 1952, for instance, in Thoroughgood's case 1582 Res 9a,.
William Chicken, being in arrears with his rent, tendered to his landlord, Thorough-good, a deed by which he was relieved from all demands whatsoever which Thorough-good had against him.
Thus the dispensation on its face comprised not only arrears of rent, but also the right to recover the land. 'Roroughgood was illiterate, but a bystander, affecting to be helpful, seized the deed and said: The effect of it is this, that you do release to William Chicken all the arrears of rent that he doth 45 owe you and no otherwise, and thus you shall have your land back again. After replying, if it be no otherwise, I am content. Thorough good sealed the deed. Chicken subsequently sold the land to an innocent purchaser.
Thoroughgood sued in trespass quare clausum fregit and recovered his land. It was said by the Court of Common Pleas to be 'the usual course of pleading' that the defendant was a layman and without learning, and that he had been deceived by a distorted recital of the contents of the deed.
The plea, as its language showed, was confined me to cases where the defendant was sued on a deed and at a time when illiteracy was frequent enough to demand special protection, it was unexceptionable. It might have been wiser, therefore, to have discarded it altogether when society became more so phisticated, but in the course of the nineteenth century the Courts extended it with little reflection and without warrant to cases of simple contracts and abandoned the requirement of illiteracy. The justification for these extensions was now said to be want of consent. On this view, the contract was complete nullity. Thus in 1869, the Foster v. Mackinnon the following assage occurs in the judgment of a strong Court delivered by Bycles, J.
"It seems plain on principle and on authority that if a blind man, or a man who cannot read or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature, in other words that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended (ibid at 711)".
At page 233 again it is stated as under : -
"The final question is, whether the plea of non estfactum will he withheld from a party if the mistake was due to his own negligence. In Foster v. Machinnon, the Court of Common Pleas stated in unambiguous terms that a signatory is barred by his negligence from pleading his mistake against an innocent third party who has acted to his loss upon the faith of the document. The action before the Court was against the defendant, described as 'a gentleman far advanced in years' as indorser of a bill of exchange. It appeared that one Callow took the bill to him and asked him to sign it, telling him that it was a guarantee. The defendant in the belief that he was signing a guarantee similar to one which he had given before, signed the bill on the back. He looked only at the back of the paper, but it was in the ordinary shape of a bill of exchange and it bore a stamp the impress of which was visible through the paper. The bill was later negotiated to the plaintiff who took it without notice of the fraud.
The action was first tried by the Lord Chief Justice, who told the jury that if the defendant signed the paper without knowing that it was a bill and under the belief that it was a guarantee, and if he was not guilty of any negligence in so signing the paper, then he was entitled to their verdict.
The Jury found that the defendant had not been negligent and returned a verdict in his favour. On appeal, the Court of Common Pleas endorsed the direction given by the trial Judge, but ordered a fresh trial on the ground that the issue of negligence had not been fully and satisfactorily considered. In the result, therefore, the right of the defendant to sustain the plea of non estfactum was to depend upon whether he was eventually found to have been guilty of negligence.
It is useful to extract from the judgment of the learned single Judge the authorities on this principle, not many but useful only such as the case of Gallie v. Lee. That was a case in which a 78 year old widow who had a lease hold interest in a house, gave the deeds to her trusted nephew. She intended to make so a gift to him to take effect immediately. She knew that her nephew wished to raise money on the house and that L, her nephew's business associate, was to collaborate with the nephew in raising money on the house.
"In June, 1962, asked her to sign a document. She had broken her spectacles and could not read it. She asked what it was and told her that it was a deed of gift of the house to her nephew. She executed it in that belief, and the nephew witnessed the execution, it being part of his arrangements with L, that L should raise money on the house and repay it to the nephew by instalments. The document signed was in fact an assignment of the house by her to L for pound sterling 3,000/-. The pound sterling 3,000/- was never paid as intended to her. having obtained the deeds and a reference as to his reliability from the nephew, mortgaged the house for pound sterling 2,000/- to a building society, but used the mo 'ney so raised to pay his debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house.
G., at the nephew's instigation, began an action, in which she pleaded non evtfactum, against L, and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The Judge found that G did not read the document, that L represented it to her as a deed of gift to the nephew, that she executed it in. that belief, and that a sale or gift to L was something which she did not and would not ever have contemplated, and he held that the plea of non estfactum was established and granted declaration asked for."
The Court of Appeal reversed the decision. Certain passages occurring in the judgment are vital to the case on hand. At page 1016 Lord Reid states thus :-
"The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently so sign documents put before them for signature by their solicitor or other trusted advisers trusted advisers without making any inquiry as to their purpose or effect. But the essence of the plea of non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his brief must depend on the circumstances of each case."
The passage relied on by Mr. Srinivasan, learned Counsel for the respondent does not help him in any manner. On the contrary, the following observations of Lord Reid are important.
"We find in many of the authorities' statements that a man's deed is not his deed if his mind does not go with his pen."
No doubt, Lord Reid stated that, that is far too wide. But that observation that"that is far too wide" will have to be applied only to the facts of the case before the House of Lords. Again at page 1021, Viscount Dilhorna observes as follows :
"What are the matters which have to be established for the plea to succeed ? First, in my opinion, it must be shown that the document signed was radically different in char acter from that which the signor thought it was.
Lord Wiberforce at page 1027 holds as follows :
"As to the persons who are illiterate, or blind, or lacking in understanding, the law is in a dilemma. On the one hand, the law is traditionally and rightly, ready to relieve them against hardship and imposition. On the other hand, regard has to be paid to the position of innocent third parties who cannot be expected and often would have no means, to know the condition or status of the signor. I do not think that a defined solution can he provided for all cases. The law ought, in my opinion, to give relief if satisfied that consent was truly lacking but will require of signors even in this class that they act responsibly and carefully according to their circumstances in putting their signature to legal documents."
Courts in India have on the rule of evidence enshrined in Ss. 101 and 102 in Chapter VII of the Evidence Act, particularly incase of women in India who in some parts and some conimunities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by man, this being the curse that always surrounded women folk even though law recognised their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged misrepresentation and fraud, ask her to prove the misrepresentation and fraud. But not in a case where she being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. Learned single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation, but demand ftom the defendant to disprove the allegation of misrepresentation and ftaud. The learned single Judge, in our opinion, has taken the correct view of the law on the face that the 1st plaintiff is an illiterate woman who merely affixed her thumb impression. She is a woman who possibly could not act without help.
We do not propose to elaborate further on the above, except because to our mind occurs yet another principle which in cases like one in hand should be applied is the doctrine called "res ipsa loquitur" which is a rule of evidence generally applied to accidents, but nonetheless is of greatvalue in weighing evidence in all such cases where the evidence is under exclusive control of the opposite party. Under this doctrine, when a thing which causes injury, without fault of injured person, is shown to he under exclusive control of opposite party and injury is such as in ordinary course of does not occur if the one having such control uses proper care, it affords reasonable evidence, and in absence of an explanation, that injury arose from no fault of the opposite party, the Court would presume in favour of the injured.
4. The above two doctrines when combined to study the case of an illiterate woman, who is a sweeper and since she does not know to read or write and at the same time is not in the control of the evidence even in respect of her working continuously for 240 days, it appears to us to he reasonable to hold that grave injustice would be done if, without calling upon the respondent-employer to produce all the materials in support of its claim that the petiftoner-appellant has not worked for 240 days continuously, the benefit of the claim should be given to her and she should be directed to be reinstated.
5. In view of the above, we are inclined to interfere with the impugned judgment as well as the award and direct the Labour Court to call for all the records in respect of the service rendered by the petitioner-appellant from the respondent-Management and decide upon such materials, whether the petitioner-appellant, as claimed, has worked for 240 days continuously so as to be attracted under Section 25-F of the Industrial Disputes Act.
6. In the result, the appeal is allowed. The impugned judgment is set aside. The writ petition is ordered accordingly and the matter is remitted to the Labour Court for expeditious disposal in accordance with law.