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Judgment
V.S. Sirpurkar, J.—These two writ petitions shall be disposed of by this common judgment as the question involved is common.
The petitioner in both these writ petitions is the Management of Agricultural Research Station, Tamil Nadu Agricultural University, Kovilpatti.
The third respondent Mangammal (in W.P. No.1061 of 1995) and Kaliammal (in W.P. No.1062 of 1995) were the labourers working in the
petitioner research institute. They were superannuated on 3-6-1992. On that day, their service period was calculated as five years and three
months and on that basis they were paid the gratuity of Rs.5,205/-. They were not satisfied with this gratuity amount and, therefore, claimed
gratuity at the higher rate as, according to them, they were serving the institute right from 1960 in the capacity as casual labourers and, therefore,
that service period also was liable to be taken into consideration and not merely 5 years and 3 months.
This claim of the respondents was resisted by the petitioner on the ground that there was nothing to prove that these labourers were firstly
working since 1960 and further every year that they worked for a period of 240 days or more.
The matter was decided by the controlling authority before whom evidence was led. Both the respondents examined themselves as witnesses
and they were cross-examined also. It is significant that during the proceedings, a notice was given to the petitioner to produce the records as it
was obvious that the records were kept of the service as well as the payment of salaries, etc. However, no record came to be produced on the
ground that all the records were destroyed after the audit. The controlling authority found in favour of the respondents and ordered the payment of
Rs.13,625.76 extra over and above the payment which was paid by way of gratuity. In that, the authority treated that the service period which was
liable to be taken into consideration was 32 years in respect of both the respondents. The authority also rejected the case put up by the petitioner
that these employees were regularised only on 6-3-1987 and as such, their service for a period of 5 years and 3 months alone was liable to be
taken into consideration for the purposes of payment of gratuity. The order passed by the controlling authority was appealed against by the
petitioner. However, it was maintained by the appellate authority. These, two concurrent orders are now being challenged before me by way of the
present writ petitions.
At the out set, the learned counsel appearing on behalf of the petitioner very vehemently argued that there was absolutely no proof available to
suggest that these respondents were working for the last thirty-two years i.e. from the year 1960 onwards or that they had worked for more than
240 days in each year. The learned counsel points out that the burden to prove that an employee worked for more than 240 days in a year or that
he worked for certain number of years, in this case for more than thirty years, was certainly on the employee and in this case, the respondent-
employees had thoroughly failed to discharge this burden. Learned counsel very heavily relied on the judgment of the Supreme Court in The Range
Forest Officer Vs. S.T. Hadimani, and pointed out that in this reported decision also, the situation was more or the less identical on facts inasmuch
as there also the employee had not produced any proof and had merely filed an affidavit in support of his claim that he had worked for more than
240 days in a year. Learned counsel points out that the burden has been held to be that of the employee and that a mere statement in favour of
himself made by the employee would be of no consequence.
Considering the rival submissions, it must be said that though prima facie the Supreme Court''s decision in Hadimani''s case, cited supra, appears
to be helping the petitioner''s case, on a deeper scrutiny, it must be said that the facts in the said Supreme Court decision are slightly different and
that would make a lot of difference.
In the first place, in Hadimani''s case, cited supra, the Tribunal had stated that the burden to prove that the employee had not worked for 240
days in a year was on the Management and since that onus was not discharged by the Management, the claim was settled in favour of the
employee. Such is not the case here. I have seen both the orders carefully where the burden has been placed on the employees themselves. Both
the authorities, i.e. the Controlling Authority as well as the Appellate Authority, have not committed any error by placing the burden on the
Management. True it is, in this case also affidavits were filed on behalf of the employees in support of their claim. However, it cannot be forgotten
that in this case, those employees offered themselves for the cross-examination and they were thoroughly cross-examined. Such was not the
situation in Hadimani''s case.
Secondly, unlike the Hadimani''s case, here a specific effort has been made on behalf of the respondent-employees by giving a notice to the
Management to produce the relevant documents. It has to be borne in mind that the respondent-employees here were illiterate workmen. Their
major part of life was spent in working as casual workers in the petitioner institute. It was only in the evening of their career, for the last five/six
years, that they came to be regularised. It is very difficult to expect that such employees would be able to produce any documentary proof as is
being required by the learned counsel for the petitioner. The respondent-employees cannot be blamed because they had issued a notice to the
petitioner institute to produce the relevant records and, in fact, it was an admitted position that the petitioner institute had maintained the records
regarding the attendance as well as the distribution of wages, etc. to the respondent-employees. If for some fanciful reasons, the petitioner institute
chooses to destroy all the records then, there would be no question of finding any fault with the poor labourers. Beyond this, they could not have
done anything. The situation would be more grim particularly because these labourers - who are obviously illiterate and living in the hand to mouth
situation - were admittedly only casual workers for a very long time. Under such circumstances, to expect them to come out with documentary
proof for their having worked more than 240 days in a year or that they worked for more than thirty-two years would be too much to expect.
Thirdly, the respondent-employees cannot be blamed as they have given a notice to the Management to produce the relevant records which
records have been claimed to have been destroyed. There appears to be no apparent reason why those service records should have been
destroyed. The Management have not shown any rule that the records after certain period have compulsorily to be destroyed. It is no doubt true
that the burden to prove that the employees worked for 240 days in a year certainly lies on the employees. However, since the Management has
not given any satisfactory reason for destroying the records, the adverse inference will have to be drawn against the Management.
In view of the above reasons, the facts in Hadimani''s case, cited supra, are different and, therefore, the petitioner cannot draw support from
the ruling of that decision. In my opinion, both the authorities have correctly held that the burden stood discharged.
When I see the order of the controlling authority, it is to be seen that the controlling authority has recorded a specific finding that the petitioner
being an agricultural research institute, there were three wells and motor pump-sets, etc. and as such, it could be reasonably expected that the
work was done continuously all through the year. In fact, it was up to the Management to prove that there was no continuous work and the work
was seasonal and used to be done only for three/four months in a year. Even that has not been done by the Management by leading any evidence.
On the otherhand, both the employees, in their cross-examination, have asserted that there used to be sufficient and continuous work through out
the year.
Learned counsel tried to point out that there was a communication by the Union that the work should be provided for at least more than three
days a month. In the absence of any positive evidence in that behalf, it will be hazardous to act on such communication. In my opinion, the word on
oath, which was tested by the cross-examination, has been rightly held to be sufficient to discharge the burden.
Be that as it may, since these are the questions of fact, it will not be proper for me to go into the facts afresh in a writ petition under Art.226.
The only question which would be required to be considered is as to whether the orders of the authorities below and the findings recorded by them
are perverse in any manner. I do not find any such perversity in the orders passed by the authorities below. The concurrent finding of facts is,
therefore, confirmed. The writ petitions are without merits and are, therefore, dismissed but without any orders as to the costs.