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Judgment
K.K. Sasidharan, J.—These writ petitions are directed against the award of the Labour Court in I.D.Nos.90 of 2001 to 95/2001, whereby
the Labour Court declared the termination of the respective petitioners as unfair and directed their reinstatement in service with full back wages and
other consequential benefits.
Factual matrix:
W.P. No. 23160/2004 (I.D. No. 91/2001):
The workman, petitioner in I.D. No. 91/2001, claims to have worked in the Tamil Nadu State Transport Corporation from 22.09.1997 to
21.09.1998 as conductor originally and later as Time Keeper at their Tindivanam Depot. During such service, he had worked for 720 days and
more particularly from 22.09.1997 to 21.09.1998. Subsequent to the rejection of the representation submitted by the workman for regularization,
he was orally terminated and the said termination was challenged before this Court and while dismissing the writ petition, this Court granted liberty
to the workman to approach the Labour Court for appropriate reliefs. Accordingly, the matter was referred to the Labour Court for adjudication.
W.P. No. 23161/2004 (I.D. No. 90/2001):
According to the second respondent workman, he was recruited through employment exchange for the post of Conductor in Tamil Nadu State
Transport Corporation and he was in service since 03.05.1997. Originally, the petitioner was working at Villupuram as Conductor and he served
there for more than 240 days per year. Later, he was transferred as Time Keeper in the Tindivanam Depot of the Corporation and during such
service, he made an application on 21.07.2000 with a prayer to declare him as a permanent employee of the Corporation. The said prayer was
not considered by the Corporation which resulted in filing a writ petition in W.P. No. 15957/2000 and the High Court as per order dated
20.09.2000 directed the Management to consider the request of the petitioner and to pass orders thereon. On the basis of the said order, the
management considered the case of the workman and as per their communication dated 27.12.2000, rejected the claim for regularization and he
was orally terminated. Even though the termination was challenged by the petitioner by filing writ petition, the same was rejected by this Court
granting liberty to the workman to seek relief through Labour Court. Subsequently, there was an unsuccessful conciliation. After submission of the
failure report, the matter was referred to the Labour Court. According to the workman, he had put in 720 days in a period of three years from
03.05.1997 to 02.05.1998 in the Corporation and as such, his termination was unjust and illegal and was made in violation of Section 25(f) of the
I.D. Act.
W.P. No. 23162/2004 (I.D. No. 93/2001):
The workman in I.D. No. 93/2001 was alleged to be in the service of the Corporation from 22.09.1997 to 21.09.1998 and he was selected in
the personal interview conducted by the officials of the Corporation. The workman had a continuous service of 720 days during the period of three
years. He was orally terminated consequent to the rejection of his claim for regularization and ultimately, he was permitted by this Court as per
order dated 27.12.1990, to move the Labour Court.
W.P. No. 23163/2004 (I.D. No. 92/2001):
The workman in I.D. No. 92/2001, is stated to have been in the service of the Corporation from 22.09.1997 to 21.09.1998 and as such, he
was in service for a total period of 720 days in three years. His entry to the service was also through Employment Exchange after interview. Since
he had completed more than 240 days in a year, he made a request to the Corporation to regularize his service and on rejection of the said
request, he was orally terminated, which made the workman to file a writ petition before this Court. While dismissing the writ petition, liberty was
granted to challenge the termination before the Labour Court and accordingly, the matter was referred to the Labour Court for adjudication.
W.P. No. 23164/2004 (I.D. No. 95/2001):
The workman in I.D. No. 95/2001 also claims to have been appointed in the interview conducted by the respondent on the basis of the list
forwarded by the local employment exchange. The workman was in the service of the Corporation from 27.10.1997 to 21.07.1998, originally as
conductor and later as Time Keeper in the Tindivanam Depot. In view of his continuous service for more than 240 days in a year and his total
service of more than 740 days during the period of three years, he made a request to regularize his service but however, the same was rejected by
the Corporation, which ultimately, led to the reference to the Labour Court.
W.P. No. 23165/2004 (I.D. No. 94/2001):
The Workman is stated to have been in the service of the Corporation from 22.08.1998 to 21.07.2000, having been appointed by the
Corporation. He was in the service of the Corporation originally as a conductor and later, he was transferred to Tindivanam as Time Keeper. His
attempt to get himself regularized in the service of the Corporation failed on account of the rejection of his request by the Corporation and the
same culminated in raising dispute before the Labour Court for adjudication.
DEFENCE:
In the counter filed by the Tamil Nadu State Transport Corporation before the Labour Court, Cuddalore in all the proceedings, it was their case
that the Corporation called for list of candidates from the District Employment Exchange to fill up the post of conductor. As per the Service Rules,
the Conductor must have 160 c.m. of height. The appointing authority was the General Manager of the Corporation. The candidates sponsored by
the employment exchange were called for a personal interview and all these petitioners participated in the said interview and it was found that none
of the petitioners were qualified, as they were not having the prescribed height for the post of conductor. Accordingly, the petitioners were not
selected. The Corporation also denied the contention of the respective petitioners that they were in the rolls of the Corporation for the period they
claimed to have worked in the Corporation. In short, the Corporation contended that the workmen were not in the service of the Corporation so
as to enable them to obtain the relief claimed by them.
9.Since basic facts in all the writ petitions are one and the same, the learned Counsel for the petitioner as well as respondent made their submission
by highlighting the facts in W.P. No. 23161/2004. Therefore, the factual matrix would be noticed from the facts in I.D. No. 90/2001, filed by
D.Sachithanandam, the second respondent in W.P. No. 23161/ 2004. The petitioners in the Industrial Dispute is referred to as ""workmen"" and the
Tamil Nadu State Transport Corporation, petitioner in the Writ Petition as ""the Corporation"".
Lead Case:
W.P. No. 23161/2004 (I.D. No. 90/2001):
The contention of the workman in I.D. No. 90/2001 was to the effect that he was selected in the personal interview held on 03.05.1997 for
appointment to the post of conductor and his last drawn pay was Rs. 4,000/-. According to him, he was sponsored by the employment exchange
as per the request given by the Corporation.
According to the workman, the practice prevailing in the Corporation was to appoint conductor and other staff on daily wages initially and
make them permanent subsequently on completion of 240 working days of service in a given year. The workman concerned was stated to be in
service from 03.05.1997 to 21.07.2000 and as such, he was in the service of the Corporation for more than 240 days. However, he was not paid
the basic pay, dearness allowance and other allowances. Originally, the workman was working as conductor attached to Panruti Branch of the
Corporation and subsequently on 11.10.1999, he was transferred to Tindivanam Depot of the Corporation as Time Keeper. While so, he gave a
letter to the respondent on 21.07.2000 with a request to declare him as a permanent employee, but, however, the same was not considered by the
Corporation which resulted in filing a writ petition before this Court and while disposing of the said writ petition, this Court as per letter dated
20.09.2000 in W.P. No. 15957/2000, directed the Corporation to consider and pass orders in the representation submitted by the petitioner.
In obedience to the said direction, the matter was considered by the Corporation and ultimately, as per proceedings dated 27.12.2000, the
claim of the petitioner for regularization was rejected on the ground that the petitioner lacks basic qualification of 160 cms of height, prescribed for
appointment to the post of conductor. Immediately, the petitioner filed a writ petition in W.P. No. 3174/2001 and this Court as per order dated
27.12.2000, dismissed the Writ Petition granting liberty to approach the Labour Court for appropriate relief.
The workman further contended that he was terminated on account of his claim for regularization and the said termination was per-se illegal
besides made in violation of the provisions of Section 25(f) of the Industrial Disputes Act. Since the conciliation ended in failure, the matter was
referred to the Labour Court for adjudication.
The contention regarding appointment of the workmen as Conductor in the Corporation as well as his claim of continuous service for more
than 240 days in a given year as well as the total completion of 720 days during the period of three years were denied by the Corporation in the
counter filed by them.
The workman was examined as a witness and in his evidence, he had deposed that from 03.05.1997, he was working in Panruti Branch and
continued there till 10.10.1999. Subsequently, he was transferred to Tindivanam Depot as Time Keeper and he was functioning there from
11.10.1997. While so, he gave an application to the Corporation for regularization on 21.07.2000 and on the same day, he was terminated orally.
In the Chief examination, he also deposed that though he was appointed on daily wages, his salary was collected on monthly basis and such salary
was paid by Branch Manager of Tindivanam Depot.
The workman also exhibited 585 receipts as per Ex.W-1 series to prove his continuous service during three years period and the same was
marked with protest. Office copy of the letter sent to the workman on 02.02.1998, was marked as Ex.W-2. Similarly, Ex.W-3 and W-4, office
copies of the letter sent to the workman by management on 02.03.1998 and 07.11.1998 were also marked. Ex.W-5 is the deficiency report,
given by the Checking Inspector on 02.12.1998 during the period of his functioning as Conductor.
The petitioner was cross examined by the Management and during the cross-examination, the workman has admitted that written order was
issued by the Corporation to him appointing him to the post of Conductor. However, such appointment order has not been produced before the
court.
It was also elicited during cross examination that the personal interview was held on 21.09.1996 and in the said interview, the workman
participated and he was told that he should be 160 cms of height and ultimately, he was issued with an appointment order by the General Manager.
Subsequently, the matter was clarified by the workman by deposing that the appointment order was sent to him through telegram. However, the
said telegram was also not exhibited as a document in support of his claim. As per his evidence, no written order of termination was issued to him.
Officer of the corporation was examined as M.W.1 and Exs.M-1 to M-4 were marked on their side.
Findings of the Labour Court:
The Labour Court framed the following issues for consideration:
1.Whether the non-employment of the petitioner is justified ?
2.Whether the petitioner is entitled to secure the reinstatement in service with back wages and other benefits ?
The Labour Court found that the workman was in the service of the corporation for more than 240 days in a year and the same was evident
from the collection sheets produced by the workman and marked as Ex.W-1 series. The Labour Court on the basis of the Interview Card marked
as Ex.M-2 concluded that the workman appeared for the interview for the post of conductor and the contrary case pleaded by the corporation to
the effect that, as the workman was not having the prescribed height of 160 cms, his case was rejected, was not supported by any evidence.
According to the Labour Court, the 318 receipts marked for the year 1997 and 318 receipts marked for the year 1998 and 129 receipts for
the year 1999 were ample proof of the employment of the workman in the corporation for more than 240 days per year. The documents produced
on the side of the Management in Ex.M.1 and M.2 to prove that though the workman attended the interview he was not selected was not believed
by the Labour Court on account of the voluminous documents produced by the workmen. The Labour Court also appears to have drawn adverse
inference against the Corporation for their non production of the documents sought to be produced by filing an interlocutory application by the
workman. Ultimately, the Labour Court concluded that from the documents exhibited on the side of the workman, it was crystal clear that the
workman was in service for more than 240 days in a year and in the absence of non-availability of proof of documents to the effect that he was
issued with an order of termination, the act of termination was declared as illegal and against the provisions of Section 25(f) of the Industrial
Disputes Act, 1947 and answered the first issue in favour of the workman.
With respect to the second issue regarding reinstatement with back wages, the Labour Court opined that the oral termination of the workman
was bad and as such, he was entitled for reinstatement in service with back wages and other attendant benefits. Similar reliefs were given in other
cases also.
Aggrieved by the award of the Labour Court, the management of the Tamil Nadu Transport Corporation have preferred the above writ
petitions challenging the respective awards.
Submissions of the Corporation:
Thiru.T.Chandrasekaran, learned Standing Counsel appearing on behalf of the petitioner Corporation contended that there was no basis for
arriving at the conclusion about the initial entry of the workman into the service of the corporation as well as the factum of their service for more
than 240 days per year. According to the learned Counsel, the receipts produced by the workmen cannot be taken as proof, evidencing the
service of the workman in the petitioner Corporation. According to the learned Counsel, an employee engaged on daily wages used to be placed
in various sectors and for different schedule, and as such, there would be multiple receipts in a given day and therefore, the number of receipts
cannot be taken as the criteria to discharge the burden that the workman was in continuous service for more than 240 days in a year.
The learned Counsel by placing reliance on the Service Regulations as well as Office Memorandum, incorporating the scheme of management
of the corporation, submitted that the appointing authority in the case of conductor is none other than the General manager and as such, Branch
manager was not empowered to make such appointments. The learned Counsel also relied on the condition of eligibility in the service regulations
with respect to conductors, wherein there is a clear stipulation that the height of the candidate should not be less than 160 cms. The learned
Standing Counsel further contended that the workmen were not entitled to be regularized and the award of the Labour Court ordering
reinstatement as well as payment of back wages is liable to be interfered with as the very award is against law.
Submissions of the workmen:
Thiru N.G.R.Prasad, learned senior counsel appearing for the second respondent/workmen contended that the receipts produced by the
workmen in Exs.W-1 to W-5 series clearly shows that the workmen were in the service for more than 240 days in a year and in the face of such
overwhelming evidence supporting the case of the workmen, the Tribunal was justified in granting the relief of reinstatement with back wages.
According to the learned Counsel, in spite of direction given by the Labour Court to produce the documents summoned by the workmen, no
attempt was made by the Corporation to produce the documents. It was further contended that the workmen had discharged the initial burden of
proving that they were in continuous service for more than 240 days in a given year and when they have discharged the said burden, the burden
shifts on the management to prove that it was not correct and that there was no such continuous service. According to the learned Counsel, the
management should have produced the Attendance Register, Wages Register and other Registers maintained as mandated by various Labour
Legislations to prove that the name of the individual workmen were not found place in the records and in the absence of such records, the Labour
Court was perfectly justified in drawing adverse inference against the management. In such circumstances, the learned Counsel prayed for
confirming the award of the Labour Court.
The learned Counsel for the Corporation relied on the following Judgments in support of his contention.
State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, ; Executive Engineer ZP Engg. Divn. and Another Vs. Digambara Rao etc. etc.,
Ludhiana Central Co-operative Bank Ltd. Vs. Amrik Singh and Others, ; A. Umarani Vs. Registrar, Cooperative Societies and Others, ;
Shri Kanchi Kamakoti Peetam, Charitable Trust Hospital Vs. The Registrar, Industrial Tribunal, Tamilnad Hospital Employees Union, The
Management of Tamilnad Hospital Ltd. and The Manager, ICICI Limited, ; G. Ganesan, V. Rajaram and S. Subramanian Vs. The Government of
Tamil Nadu,
State of U.P. Vs. Neeraj Awasthi and Others, ; The Secretary Sindhi Academy Vs. Sarla Dharia and Others, ;
Secretary, State of Karnataka and Others Vs. Umadevi and Others, ; National Fertilizers Ltd. and Others Vs. Somvir Singh, ;
2007(I)LLJ 580; 2007(I) LLJ 593; 2007(I) LLJ 789;
Accounts Officer (A and I) APSRTC and Others Vs. K.V. Ramana and Others, ; J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, ; U.P.
Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others, ;
2008 (2) LLN 20 ; 2008 (2) LLN 26; 2008 AIR SCW 3274; and Judgment of Madras High Court in W.A. No. 1107/2003 dated 19.09.2006.
The learned Senior counsel for the workmen in support of his contention with respect to violation of Section 25F as well as adverse inference
drawn against the Management by the Labour Court relied on the following decisions:
H.D. Singh Vs. Reserve Bank of India and Others, ; 1996(2) LLJ 22; 2001 (1) LLJ 1516;
2005 (12) SCC 181; Management of Madurantakam, Co-operative Sugar Mills Ltd. Vs. S. Viswanathan, ; R.M. Yellatti Vs. The Assistant
Executive Engineer, ; and Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam,
The decisions relied on by the learned Counsel for the petitioner are all with respect to regularization. In those decisions, the Supreme Court as
well as this Court held that a temporary Government Servant has no right to hold the post and his service is liable to be terminated by giving one
month�s notice without any reason. Similarly, it was also held that in case the initial entry into service was not as per the service regulations and
against a sanctioned post, the employees have no right of regularization.
Since the dispute in the present case relates to illegal termination of the petitioners in violation of Section 25(f) of the Industrial Disputes Act,
there is no need to consider the issue at length with respect to regularization and as such, I am not dealing with the decisions cited by the learned
Counsel for the corporation even though there is no dispute with respect to the legal proposition as enunciated by the Hon''ble Supreme Court as
well as this Court in those decisions.
Analysis:
The main reason which weighed with the Labour Court to decide the issue pertaining to illegal termination in favour of the workmen appears to
be the voluminous receipts produced by the workmen in Ex.W-1 to W-5 series. The Labour Court marked the entire documents without making
an attempt to verify as to whether the documents were evidencing employment of the workmen as Conductor. According to the Labour Court,
Ex.W-1 consists of 318 receipts issued on various dates in the year 1997, 318 receipts issued for the year 1998 and 129 receipts for the year
1999. The receipts were taken as the basis for coming to the conclusion that 318 receipts for the year 1997 was ample proof of the service of the
workman for 318 days in the year 1997. Similarly 318 receipts for the year 1998 was taken as evidence of work for 318 days during the said
year. In the like manner, 129 receipts were taken as the total number of days of work in the year 1999.
I have summoned the Labour Court records with a view to arrive at conclusion as to whether the workmen have discharged the initial burden
of 240 days of work in a year. I have verified the receipts for the year 1998 on random basis. It was found that there were 48 double entries for
the year 1998 alone and as such, the entire 318 receipts cannot be taken as proof of actual number of days worked for the year 1998. The
learned Counsel for the corporation was correct in his submission that there was no attempt made by the Labour Court to verify each and every
receipt produced by the workmen in support of his plea that those receipts were proof of continuous work for the period of 240 days. There was
no date in some of the receipts verified by me and merely on the basis of the date noted in the docket attached to each of the documents, the
Labour Court took those documents as pertaining to every day�s work and on the basis of the number of receipts, the Labour Court fixed the
number of days of actual work by the workman in the petitioner corporation.
Unless and until the documents submitted by the workman in Ex.W-1 to W-5 series were verified with the documents maintained by the
Corporation certifying such collection, it cannot be said that the workman was in continuous service for more than 240 days. Therefore, the finding
that the workman was in continuous service of more than 240 days in each of the year is liable to be set aside and the Labour Court has to
examine the receipts independently with reference to collection sheet maintained by the petitioner corporation.
The other reason which weighed with the Labour Court to take a decision against the Corporation appears to be the non production of
documents by the corporation in spite of application submitted by the workman. The fact remains that the Labour Court failed to take note of the
order passed in I.A. No. 245 of 2002 on 27.01.2003 dismissing the petition filed for production of documents, by recording the submission of the
Management.
The workman made a prayer to cause production of the attendance register as well as duty charter, salary payment register etc. and it was
submitted by the Management that the petitioner was not an employee of the Corporation from 21.09.1997 to 20.07.1999 and as such, it was not
proper to direct them to produce the entire documents for the said period. The Labour Court by recording the statement, dismissed the application
preferred by the workman. Therefore, obviously, the Labour Court has negatived the plea for causing production of the documents. In case the
Labour Court was of the opinion that the documents summoned from the custody of the management were absolutely necessary for the effective
disposal of the claim petition, the Court should have summoned those documents, failing which, it was open to the Labour Court to draw adverse
inference against the management. Without directing the management to produce the documents sought for by the workman, it was not proper to
draw adverse inference against the management. In the absence of a direction for production of the documents, the Court is not expected to draw
adverse inference against a party who failed to produce the documents.
The learned Senior Counsel for the workman by placing reliance on the Supreme Court Judgment in R.M. Yellatti Vs. The Assistant Executive
Engineer, , contended that the Writ Petitioner failed to produce the muster roll, salary register and other relevant documents in support of their case
and as such, the Labour Court has rightly drawn adverse inference against the management.
It is true that in Yellatti case, cited supra, the Hon''ble Supreme Court observed that when the workman had stepped into the witness box and
proved that he was in the service of the employer for 240 days in a given year, the management was duty bound to produce before the Labour
Court the nominal muster rolls for the relevant period especially when they were summoned to do so. However, in the present case, though there
was an application filed by the workmen to summon the documents from the Corporation, the said application was dismissed by the Labour Court
by recording the submission of the Corporation to the effect that the documents summoned were not necessary. The said order has become final
also. In such circumstances, though the management ought to have produced documents to prove that the workman was not in their service and
there was no continuous work for more than 240 days in a given year, the fact remains that there was no direction given to them to produce the
documents and as such, no inference could be drawn against them.
The Judgment of the Hon''ble Supreme Court in Deep Chandra v. State of U.P. and Anr. 2001 3 LLN 820 was relied on by the learned
Senior Counsel for the workmen in support of his contention that the employee who had put in more than 240 days of service for several years
cannot be ordered to discontinue the service without following the procedure contemplated u/s 2(f) of the I.D. Act. There is no dispute with regard
to the legal proposition enunciated in the said Judgment, but, however, in the case on hand, the Labour Court miserably failed to examine the
documents submitted by the workmen in support of their case that they were in continuous employment for more than 240 days in a given year.
The Labour Court also failed to summon the documents from the employer to ascertain as to whether the workman had actually worked.
In a recent decision in the matter of Divisional Manager, New India Assurance Co. Ltd. v. A.Sankaralingam 2008 (13) Scale 232, the
Hon''ble Supreme Court extended the benefit of Section 25(f) even to part time workmen and observed thus:
16.The question as to whether a part-time workman would be covered within the definition of Section 2(s) of he Act and whether he would be
entitled to the benefit of continuous service u/s 25B and the benefit of Section 25F, is answered in favour of the workman- respondent. The appeal
is accordingly dismissed.
The learned Senior Counsel by placing reliance on the Judgment of the Supreme Court in Management of Madurantakam, Co-operative Sugar
Mills Ltd. Vs. S. Viswanathan, contended that the Labour Court being the final court on facts, any finding given by the Labour Court is not liable
to be interfered in a Writ Petition under Article 226 or 227 of the Constitution of India, unless the same is perverse.
In the very same Judgment, Management of Madurantakam, Co-operative Sugar Mills Ltd. Vs. S. Viswanathan, the Supreme Court also
observed that if a finding of fact recorded by the Labour Court is perverse or if the same is not based on legal evidence, it is open to the High
Court, exercising jurisdiction under Article 226 or 227 of the Constitution of India, to consider the question of fact also as decided by the Labour
Court or Tribunal. However, the High Court must record its reasons as to why it intends to reconsider the case.
In the case on hand, there was no attempt made by the Labour Court to find out as to whether the workman have proved their continuous
employment for more than 240 days in a given year. Even though it was the case of the workman that the appointment orders were issued to them,
they have not produced the appointment order before the Labour Court. It was also the contention of the workmen that they have been transferred
to Tindivanam Depot as Time Keepers but however, no documents were produced to show that they have been so transferred and appointed in
the post of Time Keeper. Though receipts were produced by the workman to show prima facie that they were working as conductor in the service
of the Corporation, no attempt was made by the Labour Court to verify the receipts individually and to satisfy that the claim of employee was
justified.
In the random check done by me in respect of the receipts marked in Exs.W-1 series, it is seen that there is duplication in respect of the
following receipts dated:
04.01.1998, 07.01.1998, 15.01.1998,
09.02.1998, 11.02.1998, 15.02.1998,
25.02.1998, 26.02.1998, 04.03.1998,
09.03.1998, 15.03.1998, 24.03.1998,
26.03.1998, 01.04.1998, 05.04.1998,
22.05.1998, 25.05.1998, 28.05.1998,
04.06.1998, 09.06.1998, 10.06.1998,
14.06.1998, 15.06.1998, 21.06.1998,
22.06.1998, 06.07.1998, 11.07.1998,
30.07.1998, 07.08.1998, 19.08.1998,
29.08.1998, 02.09.1998, 09.09.1998,
10.09.1998, 15.09.1998, 03.10.1998,
06.10.1998, 20.10.1998, 21.10.1998,
25.10.1998, 26.10.1998, 01.11.1998,
02.11.1998, 14.11.1998, 23.11.1998,
03.12.1978, 07.12.1998, 22.12.1998.
This shows that though there were number of receipts in a given year, some of the receipts are for the very same day thereby indicating that all
the receipts cannot be taken as proof of the factum of such work for a particular day. Since some of the receipts pertains to the very same day of
work, it cannot be said that merely by producing the document, it was proved that the workmen was in continuous service of more than 240 days.
Legal position:
The initial burden is always on the workmen to prove that they had completed 240 days of service. It is only after the discharge of the said
initial burden that onus shifts to the management to disprove the version of the workman and to prove that the workman was not in the service of
the employer or that they have not completed 240 days of continuous service in a given year.
In Manager, R.B.I., Bangalore Vs. S. Mani and Others, , after surveying the earlier decisions with regard to burden of proof, the Hon''ble
Supreme Court held that the initial burden of proof was clearly on the workmen to show that they had completed 240 days of service.
In Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another, , the Hon''ble Supreme Court, observed thus:
It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was
for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit.
It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the
conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in The Range Forest Officer Vs. S.T.
Hadimani, . No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the
muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed.
In yet another decision of the Supreme Court in R.M. Yellatti Vs. The Assistant Executive Engineer, , the legal position was reiterated thus:
Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s 10 of
the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly
taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only
upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and
documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no
receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the
nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of
adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits or
self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to
prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se
without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not
interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of
each case.
In Municipal Council, Sujanpur Vs. Surinder Kumar, , the Supreme Court highlighted the legal position thus:
The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240
days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman.
Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that
he was not gainfully employed, was on the workman.
It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn
against the management.
While giving its finding with regard to Issue No. 1, pertaining to the question of non-employment, the Labour Court obviously was carried
away by the number of receipts produced on the side of the workmen. However, the Labour Court failed to consider the receipts one after
another to find out as to whether the entire receipts if taken together would prove that the workmen have worked for a continuous period of 240
days in a given year. The Labour Court also should have directed the management to produce the required documents in case the Court was
satisfied that the initial burden has been discharged by the employee. The details furnished above on the basis of the random check made by me in
respect of the receipts produced by the workmen in Ex.W-1 series clearly shows that the entire receipts were not examined by the Court and the
conclusion arrived at by the Labour Court, therefore, is without materials and as such, is perverse, warranting fresh consideration.
The issue No. 2, pertaining to reinstatement and payment of full back wages were also very mechanically considered and allowed by the
Tribunal without any discussion as to whether the workmen were entitled for such reinstatement with full back wages.
It is trite that the payment of back wages is not automatic followed by an order of reinstatement. The Court has to consider the totality of the
case including the method and manner of appointment, the way in which the employee was terminated and all other relevant aspects and there
should be a factual finding justifying the order of reinstatement with back wages.
In the present case, the Issue No. 2 was decided by the Labour Court without giving any factual finding as well as justification for granting such
a relief.
In General Manager, Haryana Roadways Vs. Rudhan Singh, , the Supreme Court held that there is no rule of thumb that in every case where
an Industrial Tribunal gives a finding that termination of service was in violation of Section 25(f) of the Industrial Disputes Act, entire back wages
should be awarded and further observed thus:
There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section
25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether
after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc,
short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and
balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length
of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are
wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him
he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the
award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite
large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A
regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a
calendar year.
In U.P. SRTC Ltd. v. Sarada Prasad Misra 2006(4) SCC 723, the Supreme Court, after referring to the judgment in General Manager,
Haryana Roadways Vs. Rudhan Singh, , as well as the judgment in Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, , held thus:
From the above cases, it is clear that no precise formula can be adopted nor �cast-iron rule� can be laid down as to when payment of full
back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the
court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find
force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken
otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding
payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining
the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice,
equity and good conscience, should pass an appropriate order.
The Hon''ble Supreme Court in Talwara Coop. Credit and Service Society Ltd. Vs. Sushil Kumar, , after extracting the principles laid down in
Municipal Council, Sujanpur Vs. Surinder Kumar, , with regard to factors to be considered before grant of an order of reinstatement with back
wages, observed thus:
This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of
the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the
workman. The burden, however, is a negative one.
If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact
gainfully employed.
In a recent decision in U.P. State Electricity Board Vs. Laxmi Kant Gupta, , shift in the legal position with regard to the normal rule of
reinstatement with back wages was indicated by the Supreme Court thus:
Thus it is evident that there has been a shift in the legal position which has been modified by this Court and now there is no hard and fast
principle now that on the termination of service being found to be illegal, the normal rule is re-instatement with back wages. Compensation can be
awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case.
It would be appropriate to reproduce the observation of the Hon''ble Supreme Court in U.P. State Brassware Corpn. Ltd. and Another Vs.
Udai Narain Pandey, , with regard to the principles to be borne in mind while adjudicating the dispute between the management and the workmen,
which runs thus:
The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which
would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial
Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically.
Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial
Court shall lose much of their significance.
The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the
Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
It is evident that there is no reasoning in the award of the Labour Court with regard to the order for reinstatement with full back wages. None
of the legal principles enunciated by the Supreme Court in the matter of reinstatement as well as payment of back wages were taken into
consideration by the Labour Court while adjudicating the matter.
Since the Labour Court failed to consider the issue by analyzing the facts in its proper perspective, I am of the opinion that the finding rendered
by the Labour Court on both the issues are perverse, warranting interference by this Court.
Accordingly, the award of the Labour Court impugned in all these Writ Petitions are set aside and the matter is remitted to the Labour Court
for fresh consideration with the following directions:
(i) The Labour Court shall consider the receipts produced by the workmen and marked as Exs.W-1 series and each of the individual receipts have
to be examined so as to come to a finding as to whether there was evidence to show that the workmen were in continuous service for a period of
240 days in a given year as well as their alleged total service.
(ii) In the event of the Labour Court coming to a factual finding that the documents produced by the workmen clearly shows that they were in
service for a period of 240 days in a given year, the Labour Court shall direct the employer to produce the Attendance Register, Duty Charter,
Salary Payment Register and other statutory registers maintained under the Labour Welfare Legislations for the relevant period.
(iii) The Labour Court shall give a factual finding with regard to the violation of Section 25(f) of the Industrial Disputes Act as contended by the
petitioners and shall decide the dispute in the light of the legal position indicated above.
(iv) The Labour Court shall grant reasonable opportunity to the parties to adduce further evidence both oral as well as documentary.
The Writ Petitions are disposed of accordingly. No costs. Consequently, W.P.M.P.Nos.28008 to 28013/2004 and W.V.M.P.Nos.1749 to
1754/2004 are closed.
Since the industrial dispute is of the year 2001, the Labour Court is requested to dispose of the matter as expeditiously as possible.