Madras High Court
The President, Kanyakumari District ... vs The Manager, Indian Rare Earths Ltd. ... on 4 May, 1990
Equivalent citations: (1990)2MLJ271
JUDGMENT Maruthamuthu, J.
1. This writ appeal arises from the common order of the learned single judge in W.P.Nos.8840 and 8950 of 1982 dated 4-2-1983.
2. The brief facts which gave rise to the filing of this appeal are:
(i) The Indian Rare Earths Limited, Minerals Division (the first respondent) is an undertaking of the Government of India and it is hereafter mentioned as the company. The first respondent has got a plant at Manavalakurichi which is 16 km. west of Nagercoil in Kanyakumari District for mining and processing beach sands and for producing minerals like monasite, ilenite etc. for which the company has taken on lease large areas along the sea-coast In or about 1969, the old plant was closed down and a new plant was commissioned. As a result, about 400 workmen both in the plant and mining area who were engaged as casual labourers were rendered surplus and were proposed to be retrenched from service. The workmen are represented by four trade unions, viz., the second respondent (Union No.1), the appellant (Union No.2), the third respondent (Union No.3) and the fourth respondent (Union No.4). The 4th respondent protested and gave notice dated 3-6-1968 of their intention to go on strike within six weeks as per Section 22(1) of the Industrial Disputes Act (hereafter mentioned as the Act). The first respondent (management) maintained the stand that the requirements of the personnel in the new plant will be met from among the workers employed in the dismantled plant to the extent possible and if in any category there are vacancies after the available men in the dismantled plant are exhausted, the same will naturally be given to the temporary and casual workmen working in the new plant based on their service, seniority and other relevant considerations. The matter was placed for conciliation which ended in failure. The Ministry of Labour refused to refer the dispute for arbitration. Thereupon, the 4th respondent filed Writ Petition No. 1640 of 1969 for a writ of mandamus directing the Government of India to refer the dispute for adjudication. On 26-6-1969, when the writ petition was pending, a settlement was arrived at between the first respondent and the fourth respondent by which the mining area workers were to be treated as a separate category and all such workers were to be retained on casual basis.
(ii) Out of the 400 retrenched workmen, 237 received retrenchment compensation. Others who had not put in the requisite service as per the provisions of the Act were not paid compensation. Out of the said 400 retrenched workmen, 97 were casual workmen in the mining area and they were retained by the management as per agreement dated 26-6-1969 and 160 workmen were given job subsequently from 1971 to 1981. Then remained only 77 workmen who had to be provided job, and their claim was taken up by the fourth respondent. In about 31-10-1980, the contract system of mining and supply of beach sands was abolished. As a result, the first respondent required only 60 workmen for doing mining work. The contract labourers employed through contractors demanded that they should be taken as direct employees on abolition of the contract system. The claim of the fourth respondent that its workmen should be preferred for employment as per Section 25-H of the Act was subject-matter for adjudication in I.D. No. 17 of 1982 before the Industrial Tribunal. Each of the respondents 1, 3 and 4 and the appellant claimed in those proceedings that they should be preferred to fill up the 60 posts arising out of the abolition of the contract labour system. The appellant claimed that 40 workers who had been employed through successive contractors from 1970 should have preferential treatment in employment The first respondent contended that 60 of the senior most of the 110 contract labourers employed through Manavalakurichi Minerals Co-operative Labour Contract Society Limited and who were doing mining work for 15 years under the contractors are entitled to preference over the other sets of workmen who were demanding absorption. The Industrial Tribunal (fifth respondent) passed an award holding (1) that the management should absorb the 60 workmen employed through contractors as direct employees with effect from 1-11-1980, the date of abolition of the contract labour system; (2) that the management should recruit 60 workmen out of the 110 workmen lastly employed through the. Manavalakurichi Mineral Co-operative Labour Contract Society on the basis of seniority: and (3) that the workmen of the company retrenched in 1969 are not justified in demanding absorption under Section 25-H of the Act as they were not employees employed in mining area which is to be treated as separate and different union for the purpose of retrenchment in view of the settlement which the Union No.4 has entered into with the management in the year 1969.
(iii) The fourth respondent (Union No.4) and the appellant (Union No.2) respectively filed Writ Petition Nos. 8840 of 1982 and 8950 of 1982 challenging the validity of the said award raising the same contentions which were raised by them before the Industrial Tribunal (fifth respondent). In addition, the appellant who was the Writ Petitioner in W.P. No. 8950 of 1982 raised a point that the sixth respondent (the Presiding Officer of the Industrial Tribunal) had stayed in the guest house of the first respondent at Manavalakurichi and enjoyed its hospitality and car facility offered by it from 19-8-1982 to 22-8-1982 and became biased and that, therefore, the award passed by the sixth respondent as Industrial Tribunal becomes invalid and should be set aside.
(iv) The learned single judge, on assessing the facts and circumstances of the case, accepted the finding of the 5th respondent that the claim of the appellant that 40 of their workmen should be absorbed as against the 60 vacancies, is not sustainable. On the allegation of bias, the learned single judge opined that the indiscretion on the part of the sixth respondent in accepting the hospitality of the company to stay in the Guest House for three days, however objectionable it may be, cannot have the effect of invalidating the Award especially when the Award is upheld by this court on merits. Thus, rejecting all the contentions raised by the appellant and the 4th respondent, the learnerd single judge dismissed the writ petitions.
(v) The appellant who was the petitioner in Writ Petition No. 8950 of 1982 has preferred the present writ appeal contending that the said order of the learned Judge is not correct. The appellant has not raised any other point in this appeal except the allegation of bias made against the sixth respondent. The correctness of the order of the learned single judge has not been questioned on any other ground. Therefore, the only point for consideration in this appeal is whether the award passed by the 5th respondent is vitiated by bias as alleged by the appellant.
3. The allegation of bias made against the sixth respondent, the Presiding Officer of the Industrial Tribunal (fifth respondent) is that the sixth respondent has enjoyed the hospitality of staying in the guest house of the first respondent company with his family members and relatives and availed the car facilities provided by the company during the pendency of the proceedings in I.D. No. 17 of 1982 and that, therefore, the award passed by the sixth respondent is vitiated. This allegation has been voiced form by one Thulasi, a member of the appellant (Union No.2) in his additional affidavit dated 11-11-1982 filed in support of the Writ Petition No.8950 of 1982 and the relevant portion is:
I have come to know that during the pendency of I.D. No. 17 of 1982, Thiru Sudarsanam Daniel, the Presiding Officer, Industrial Tribunal, Madras, has enjoyed hospitality as a guest of the respondent management along with his family members and relatives. Thiru Sundarsanam Daniel has stayed in the guest house belonging to the first respondent management at Manavalakurichi, Kanyakumari District, from 19-8-1982 to 22-8-1982. Further, a car belonging to the first respondent management bearing registration No. KLU 440 was placed at the disposal of Thiru Sundarsanam Daniel and has been used by him and his family members and relatives during their stay at Manavalakurichi. The car has been used by Mr. Sudarsanam Daniel and his family members for their sojourn to places like Trivandrum and Tuticorin. Along with Thiru Sundarsanam Daniel and his family, his cousin Thiru Selvin Paul, Assistant Engineer, TWAD, Tuticorin had stayed in the management guest house with his family. During their stay in the first respondent's guest house, the wife of Thiru Sudarsanam Daniel has distributed Christian literature to the public living in the coastal area.
The sixth respondent has come to be added as a party in that writ petition only in view of this allegation.
4. So far as the sixth respondent is concerned, he would deny everything in his counter-affidavit except that he stayed in the guest house of the first respondent from 9-00. p.m. on 20-8-1982 to 7.00 a.m. on 22-8-1982 and would say that this had nothing to do with the passing of the award and that he had rendered the award purely on the merits of the claims and contenti6ns of the parties. He would state that he conducted an enquiry in another matter in I.D. No. 1 of 1982 on the 19th and 20th of August, 1982 by staying in the tourist bungalow at Nagercoil and that on 20th night he with his family left Nagercoil and reached the guest house of the first respondent at Manavalakurichi and stayed there as mentioned above. He would deny that he used the company's car KLU 440 during his stay and state that he had made his own arrangement to go to Manavalakurichi which is just 16 miles off Nagercoil: He would deny that he with his family went to Trivandrum and Tuticorin by using the company's car. His statement is that he reached Tirunelveli on the evening of 22-8-1982 and returned to Madras by Nellai Express after two days' stay at Tuticorin. He has also denied that his wife has distributed Christian literature to the public living in the coastal area during those days. Then, he continues to state as follows:
I took my family only in order to show the plant to them. It won't be proper for me to comment on the award rendered by me. Suffice for me to say that all my findings are bona fide based on the materials placed before me.
I also make it clear that no part of my findings had been made on any extraneous considerations, and that I have no prejudice or bias whatsoever for or against any of the parties or causes or persons- concerned in the said dispute. I may also add that in all my judicial career for more than 26 years, never once had I rendered any order, judgment, or conviction or sentence or award on any materials other than those placed before me.
My family consists of only myself and my wife. I have no commitments in my life and I have been leading a peaceful and contended life as a Judicial Officer throughout my career.
5. We find here that the appellant would start with an allegation of great magnitude which would get dwindled into insignificance. The allegation made by Thulasi in his additional affidavit is that the sixth respondent had used the company's car to go to Trivandrum and Tuticorin during the days from 19-8-1982 to 22-8-1982. But, he is not consistent in this regard. In the subsequent reply affidavit filed by him after seeing the counter-affidavit of the sixth respondent, he has given up the allegation that the sixth respondent used the company's car to go to Trivandrum and has stated restrictively that the sixth respondent used the company's car to go to Tuticorin only, during those days. As regards the use of the car by the sixth respondent to go the Trivandrum, Thulasi would seek to say in his reply affidavit that it was from 20-10-1982 to 22-10-1982. This aspect of the allegation has not been made by Thulasi in his earlier additional affidavit dated 11-11-1982 though the alleged use of the car at Trivandrum is said to have taken place prior to his affidavit dated 11-11-1982. The allegation that the sixth respondent had used the. Company's car from 20-10-1982 to 22-10-1982 at Trivandrum seems to have been made by Thulasi probably after coming to know that the sixth respondent did not go to Trivandrum during the period from 20-8-1982 to 22-8-1982. However, if really the sixth respondent had used the company's car in October, 1982 for his stay at Trivandrum, this could have been readily mentioned by Thulasi or James in their earlier affidavits. So far as the sixth respondent is concerned, he has strongly denied the allegation that he had used the company's car at any time and has caregorically stated that this allegation is false. Govinda Pillai the Works Manager of the first respondent company has also denied in his counter-affidavit that the company's car KLU 440 was utilised by the sixth respondent and his family members during the period from 20-8-1982 to 22-8-1982 to visit Trivandrum and Tuticorin. The management of the first respondent has clearly proved, on production of the register relating to the car KLU 440, that the car was used by the Directors of the first respondent company and not by the sixth respondent during the relevant time. When evidently, the sixth respondent had not utilised the company's car on any one of the days as alleged in the affidavit of Thulasi, it has to be said that this allegation has been hatched up with the evil intention of attributing some bias against the sixth respondent and to have the award rendered by the sixth respondent somehow set aside.
6. No bias can be attributed to the sixth respondent for his stay with his family members in the company's guest house at Manavalakurichi between 20-8-1982 and 22-8-1982. A careful perusal of the counter-affidavit of the sixth respondent and that of Govinda Pillai, the Works Manager of the first respondent, establishes the fact that the sixth respondent has acted with innocence in his stay at the company's guest house and that he has not allowed himself to be swayed by that hospitality, in rendering the award in dispute. His stay in the guest house from 20-8-1982 to 22-8-1982 was not the first time. He has stayed with his staff even on a previous occasion. The sixth respondent had fixed spot inspection of the factory of the first respondent at Manavalakurichi on 7-7-1982 and 8-7-1982 on an application filed by one of the four unions and on those two days, the sixth respondent, his staff (Bench Clerk, Steno and Peon) had stayed in the company's guest house and lunch had been arranged for all the Advocates of the Unions and two or more representatives of all the four Unions concerned in the dispute. That stay of the sixth respondent in the gust house seems to have been fixed with the clear knowledge of the Advocates for the four Unions including the advocate of the appellant. Though the counsels for the Unions are said to have made their own arrangement for their stay, the fact that they also had their lunch in the company's guest house and enjoyed the hospitality of the company (first respondent) cannot be denied. Thiru Amarnath, one of the counsel for the appellant (Union No.2) would also admit the fact that the counsel for the Unions had agreed to have lunch in the company's guest house on those days of spot inspection.
7. Probably, prompted by the inquisitiveness to see the working of the factory of the first respondent, the sixth respondent had chosen to stay in the company's guest house with his family. This is understood from the counter-affidavit of the sixth respondent who says that he was invited to visit the factory even on 7-7-1982 and 8-7-1982 when the spot inspection was fixed, but he had postponed it to a future date. Even this fact of invitation of the first respondent to the sixth respondent was well known to all the counsel appearing for the Unions including the appellant Union as a discussion in this regard had taken place in their presence. It may not, therefore, be true if Thulasi and James would allege in their affidavits that they had no knowledge of the stay of the sixth respondent in the company's guest house from 20-8-1982 night to 22-8-1982 morning. The allegation of Thulasi in his affidavit that the campus of the first respondent is a prohibited area and that the stay of the sixth respondent in the guest house would not be easily known to anybody and that, therefore, Thulasi could not know of the same then itself has been concocted for the purpose of this case. It is only in that guest house which is said to remain inside the prohibited area that the counsel for all the four Unions and the representatives of the Unions including the appellant Union have made visits and had lunch on 7-7-1982 and 8-7-1982 when the sixth respondent made spot inspection of the factory and management of the first respondent. Further, it is only in this factory which is said to be in a prohibited area, a number of workmen do their jobs and they must have ingress to and egress from the factory premises. Therefore, the stay of the sixth respondent in the company's guest house from 20-8-1982 to 22-8-1982 morning could not be said to be secret one. This fact should have very well been known to all the Unions including the appellant Union of which Thulasi is a member.
8. There can be no doubt that the allegation that the sixth respondent had stayed in the company's guest house and became biased is an after-thought and it has been just levelled by the appellant in its bid to attack somehow the validity of the award. This allegation has not been made by James in his affidavit dated 30-10-1982 and filed along with the writ petition or by Thulasi in his affidavit filed on that date. It is only later on 11-11-1982, that Thulasi would come forward with the additional affidavit stating that he came to know only "last week" of the stay of the sixth respondent. Even then, neither Thulasi nor James had chosen to mention the date on which they came to know of the stay of the sixth respondent in the company's guest house and the source from which they had known these details. There could be nothing wrong if the sixth respondent had stayed in the guest house as after all it was due to his inquisitiveness to see the working of the factory, with his family members and that too on the invitation by the first respondent and to the clear knowledge of the counsel of all the Unions and their representatives. Moreover, the guest house is one belonging to an undertaking of the Central Government and there could be nothing personal between the first respondent management and the sixth respondent and there was no Government Guest House or Travellers' Bungalow in Manavalakurichi.
9. It cannot be easily believed if the appellant and its members, particularly Thulasi and James, would state that they had come to know of the stay of the sixth respondent in the guest house in about the first week of November, 1982. They must have been aware of this fact even prior to the proceedings before the sixth respondent had come to a close and the passing of the award. The last hearing of the proceedings has been on 3-9-1982. The award has been passed on 22-9-1982. On 3-9-1982, the appellant and its counsel would have participated in the proceedings before the sixth respondent and they might have been present on 22-9-1982 when the award was passed. None on behalf of the appellant had raised objection prior to the passing of the award by the sixth respondent by alleging that the sixth respondent had stayed in the company's guest house for some time before and that the award, if passed, by the sixth respondent would be vitiated by bias. In Manak Led v. Dr. Prem Chand the observations are:
The alleged bias in a member of the Tribunal does not render the proceedings invalid, if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member. It is true that the waiver cannot always and in every case be inferred merely from the failure of the party to take objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.
That was a case in which the appellant knew the material facts and was deemed to have been conscious of his legal rights in the matter, but deliberately failed to raise objection to the constitution of the tribunal on the ground of bias before the Tribunal at the earlier stage of the proceedings. The Supreme Court held that on the facts and circumstances of the case, there was an effective bar of waiver against the appellant in that case who raised the allegation of bias for the first time and that the appellant in that case wanted to take a chance to secure a favourable report from the Tribunal which was constituted and that when he found he was confronted with an unfavourable report, he had adopted the device of raising the technical objection of bias. Applying the principle stated in the above judgment of the Supreme Court to the present case, we have to hold that the appellant (Union No.2) is barred from raising the allegation of bias for the first time in the writ petition as this allegation was not raised by the appellant before the Tribunal itself, having been aware of a knowledge of the fact that the sixth respondent had stayed in the company's guest house. Probably, the appellant in the present case just wanted to wait and see whether the award to be rendered by the sixth respondent would or would not be favourable to the appellant and that when he came to know that the award was not favourable to the appellant, the appellant had chosen to make the allegation of bias against the sixth respondent. We have already seen that the allegation of bias is not raised by the appellant at the earliest in the affidavit filed in support of the petition, but it is done only subsequently by way of additional affidavit filed by Thulasi on 11-11-1982.
10. In International Air Port Authority of India v. K.D. Bali it has no doubt been observed that the purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and it is likely to decide against the party. At the same, it is added therein:
It is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person.
In that judgment, the Supreme Court has referred to the principle stated in King (De Vesci) v. Justices of Queen's County (1908) 2 L.R. 285 which is as follows:
By bias, I understand a real likelihood of an operative prejudice, whether conscious or unconscious. There must in my opinion be reasonable evidence to satisfy us that there was a real likelihood of bias. I do not think that their vague suspicion of whimsical capricious and unreasonable people should be made a standard to regulate out action.
That was a case where the Arbitrator being the appointee of the petitioner's client was not acceding to the request of his client which the petitioner therein considered to be reasonable, and the petitioner had an apprehension that the Arbitrator was biased. It was held that no hurt could be said to have been caused to the petitioner (client).
11. S. Parthasarathi v. State of Andhra Pradesh in is a case where the Deputy Director was inimical towards the appellant therein and harassed him in various ways and that one, Manvi, who was appointed Director-in-Charge caused that appellant to be suspended from service and framed charges against him. That appellant protested saying that Manvi should not conduct the enquiry for the reason that Manvi had bias besides that he was not duly authorised to conduct the enquiry. In spite of the protest, Manvi conducted the enquiry and the requests of the appellant to inspect the files and documents concerned were rejected and the appellant was found guilty of some charges. It was held in that case that the continuance of the enquiry by biased officer ceasing to officiate as officer appointed to enquiry was bad in law. In the present case, we have to remember that no objection or protest was raised by any member of the appellant Union soon after the stay of the sixth respondent in the guest house of the first respondent and before the proceedings of adjudication came to a close and that even this as an allegation of bias, has been raised on behalf of the appellant for the first time only in the additional affidavit filed on 11-11-1982 and not even in the first affidavit filed in support of the writ petition.
12. The learned single judge has elaborately considered the question of bias by referring to the judgments reported in Gullapalli Nageswara Rao v. The State of Andhra Pradesh 1959 S.C.R. (1) (Suppl.) 319 Mineral Development Ltd. v. The State of Bihar and Anr. , D.G. Sarana v. University of Lucknow and Ors. and Air Corporation Employees' Union and Anr. v. D.V. Vyas and Ors. I.L.R. 1962 Bom. 292 and held that in the present case a mere stay in the company's guest house for three days is not sufficient to establish the possibility of a bias on the part of the sixth respondent. The learned Judge has also taken the view that a reasonable person will not come to the conclusion that because of the 6th respondent's stay in the company's guest house, there is the possibility of bias. In fact, the stay of the sixth respondent in the company's guest house is not for three days, but for less than 1 1/2 days (34 hours). The learned single judge has rightly opined that the indiscretion on the part of the sixth respondent in accepting the hospitality of the company in respect of the stay in the guest house, however objectionable it may be, cannot have the effect of invalidating the award especially when the award is upheld on merits.
13. We clearly find in the instant case that the appellant Union has got no merits in its claim and that is why the allegation is made against the sixth respondent personally. Rival claims have been put forward by 110 contract labour workmen represented by Union No.1 (second respondent) on the one hand and 40 contract workmen represented by the appellant Union (Union No.2). These two sets of workmen had at one time or other been employed in the mining area by the management through different contractors. While 110 workmen were actually working under the management through the contractors on 31-10-1980 when the contract labour system was abolished, the 40 workmen represented by the appellant Union had worked in the mining area under different contractors between 1970 and 1977. Even then, the appellant Union was able to name only one worker without giving the details of other 39 workmen in order that their claim that they had served for a longer period under the management, could be considered. Even when the Industrial Tribunal (5th respondent) had asked for the names and other details in respect of the 39 workmen, the appellant. Union did not furnish the same. Even one of the 40 workmen who gave evidence before the 5th respondent did not give those details. His evidence only showed that he was working under a contractor, Rathnasami, on a casual basis for a short period. The learned single judge has rightly observed that having regard to the fact that the appellant Union had failed to establish before the Tribunal as to who were the 40 workmen who had worked from 1970 to 1977 under the management through the contractors, its claim for the absorption of 40 workmen as against the 60 vacancies is not sustainable. It is, therefore, clear that the appellant Union had no merits in its claim before the 5th respondent which was presided over by the sixth respondent and having been conscious of this position, the appellant Union had thought it fit to level the allegation of bias against the sixth respondent.
14. Certainly, the award does not become invalid for the reason of the bias alleged on behalf of the appellant. It is significant to note here that the allegation, of bias which is now made by the appellant Union has not been made by the Union No.4 (fourth respondent) who also filed Writ Petition No.8840 of 1982 challenging the validity of the award. In fact, that Union has not chosen to prefer an appeal against the order of the learned single judge passed in common for both the writ petitions. The contention on behalf of the appellant that the first respondent management had always preferred and supported the cause of respondents 2 and 3 (Unions 1 and 3) and that these two Unions had the major benefit under the award passed by the 5th respondent is not reasonable. As already stated, after all the dispute was between the various workmen of the rival Unions inter se and not the first respondent management and the question was which 40 workmen were to be absorbed as against the 60 vacancies. The first respondent management lias merely laid down its requirements, namely, recruitment of 60 workmen out of 110 workmen lastly employed through Manavalakurichi Mineral Labour Contract Society on the abolition of the contract system which took place on 31-10-1980 and it was purely a matter to be decided by the 5th respondent. The first respondent had no other alternative but to absorb the 40 workmen as identified by the 5th respondent which the 5th respondent has rightly and impartially done. No prejudice is said to have been caused to the appellant Union because the workmen of the appellant Union would not find a place among the 40 workmen identified by the 5th respondent. If the appellant Union would feel aggrieved, the same must be in the case of the 4th respondent (Union No.4 petitioner in W.P. No. 8840 of 1982) as the 4th respondent was not successful in its claim for absorption of their members against the 60 vacancies. Evidently the 4th respondent has not made the allegation of bias against the sixth respondent. Nor, it has preferred a writ appeal against the order of the learned single judge as already pointed out. The resultant position is that the sixth respondent functioning as the fifth respondent has not done any favour to the first respondent and that the first respondent has not been in any way a beneficiary in the impugned award. Viewed from any aspect, we hold that the order of the learned single judge is perfectly correct and it warrants no disturbance at our hands.
15. In the result, the appeal is dismissed, but without costs.