IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.33465 of 2004 A.M.Muniswamy Proprietor, The Bharathi Roadways Sholingur, Vellore District. .. Petitioner Vs. 1. The Presiding Officer Principal Labour Court Chennai. 2. M.A.Shahjehan .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the first respondent in I.D.No.9 of 1984, dated 4.8.2004 and quash the same. For Petitioner : Mr.Balan Haridoss for Mr.K.L.Sekar For Respondents : Mr.V.Prakash, Sr.Counsel for Mr.N.R.Elango ORDER The writ petition is filed by the management, which is the respondent before the Labour Court, challenging the award passed in I.D.No.9 of 1984, dated 4.8.2004. 2.1. The second respondent was appointed as Checking Inspector in the year 1966 in the petitioner/management and he is stated to have worked for 16 years. Without any notice, the petitioner is stated to have terminated the second respondent from service on 22.11.1982. The termination of the second respondent was due to the reason that the second respondent wanted to start an union and he has also submitted an application by way of demand in Application No.134 of 1982. 2.2. The termination was challenged by the second respondent by raising an industrial dispute. The https://hcservices.ecourts.gov.in/hcservices/ petitioner has filed counter to the effect that the second respondent was working temporarily and he used to inspect vehicles one or two days in a month during the time when the permanent staff are on leave and for that he was paid Rs.15/- per day as salary and therefore, the provisions of the Industrial Disputes Act are not applicable and in these circumstances, no prior notice is required. It was also denied that the second respondent has worked for 16 years. 2.3. Before the Labour Court, on behalf of the second respondent/ workman, he examined himself as W.W.1 and marked nine documents as Exx.W1 to W9, while on the side of the petitioner/management, two witnesses were examined as M.W.1 and M.W.2 and one document was marked as Ex.M1. 2.4. It was the case of the second respondent/workman that he has been working for 16 years and before termination no notice was given and no compensation was paid and persons who have joined service after him, viz., Mani and Murugesan, were working on monthly salary of Rs.900/-. 2.5. The Labour Court has considered Ex.W1, which is a letter written by the owner of the petitioner/management dated 14.10.1980 directing the second respondent to go to Maduranthagam to take charge of a vehicle, and found that it was given as a direction by the management to the workman and therefore, the Labour Court has come to a conclusion that the second respondent was working as a Checking Inspector on 14.10.1980. 2.6. The Labour Court has also relied upon Ex.W2, which is a letter written by one Ramachandran working on behalf of the petitioner/ management dated 21.12.1980 addressed to the second respondent, directing the second respondent, as a Checking Inspector, to take charge of a vehicle TMN-234, and has come to a conclusion that the second respondent was working as on 21.12.1980 as a Checking Inspector. 2.7. The said Ramanchandran, on behalf of the petitioner/ management, has written another letter dated 23.7.1981, marked as Ex.W3, by which also he has called the second respondent as Checking Inspector of TMN-1777 to take charge of TNH-9090. 2.8. The Labour Court has also considered Ex.W4, which is a letter written by the second respondent to the petitioner/management, by which he has stated on 8.3.1982 that he has been working continuously as Checking Inspector for 16 years and every month for minimum 25 days he has been working. The more relevant factor is that for the said letter marked as Ex.W4, the petitioner/management has written a reply dated 23.3.1982, marked as Ex.W5, which does not contain any statement that the second respondent was working as a Checking Inspector temporarily. https://hcservices.ecourts.gov.in/hcservices/ 2.9. The Labour Court has found that the second respondent/ workman, through his counsel, has written a letter to the petitioner/ management on 26.4.1983, marked as Ex.W6, which has been received by the petitioner/management, as evidenced under Ex.W7 – postal acknowledgement, which reveals that on 7.4.1983, the Labour Commissioner has passed an order against the petitioner/management directing it to pay salary of Rs.900/- to the second respondent during national holidays and holidays and that there was a letter dated 11.11.1981, marked as Ex.W9, written by one of the passengers of the bus belonging to the petitioner/Management to the effect that the second respondent was working as a Checking Inspector. 2.10. The Labour Court, by analysing the entire evidence, has arrived at a conclusion that the second respondent was continuously working as a Checking Inspector under the petitioner/management and was not employed temporarily as and when required. This is a factual finding. 2.11. On behalf of the petitioner/management, the salary registers for the years 1981, 1982 and 1983 were marked as Exx.M4, M5 and M6 and M.W.2, in the cross-examination, has clearly stated that the persons who have signed in the registers have not signed with any date and it is not known on what date they have signed and there was no voucher except the registers produced as Exx.M4 to M6. It was the admitted evidence on the side of the petitioner/management that there are different types of workers like Fitters, Cleaners, Mechanics and no separate registers are maintained. While it was the evidence of M.W.2 that the petitioner/management used to deduct P.F. and E.S.I, in the salary registers marked as Exx.M4 to M6, it is admitted that there was no such deduction and it was in those circumstances, the Labour Court has come to a conclusion that the said documents Exs.M4 to M6 are not absolute documents and they were prepared for the purpose of the case and simply because in those documents the name of the second respondent does not find place, it does not affect the case of the second respondent. 2.12. The Labour Court has further relied upon the evidence of M.W.2, who has clearly admitted that the petitioner/management is not in the habit of getting any signature at the time of issuing salary; that no written order is given at the time of regularisation of service; and that in the year 1984 when General Checkers were appointed, they were not given written orders. Moreover, in the salary registers, the name of M.W.2, who is admitted to be a permanent worker, does not find place. Therefore, on fact, the Labour Court has come to a conclusion based on the evidence of M.W.2 that the petitioner/management is not in the habit of issuing any written appointment orders or regularisation orders and that no receipts used to be given for the salary also. On the evidence of M.W.2, it was realised that the petitioner/management has employed https://hcservices.ecourts.gov.in/hcservices/ nearly 50 Checking Inspectors and there are 20 buses on various routes and relying upon Exx.W1 to W3, the Labour Court has come to a conclusion that the second respondent has been working as Checking Inspector on permanent basis and therefore, has come to a conclusion that the termination of the second respondent from service is unlawful and directed his reinstatement with back-wages. 3. On a reference to the award passed by the Labour Court, it is clear that there has been cogent evidence and the same has been discussed by the Labour Court. Therefore, the contention of the learned counsel for the petitioner that the second respondent should satisfy that he has been employed has no meaning. On the basis of the letters of the petitioner/management, viz., Exx.W1 to W3, marked by the second respondent/workman, the Labour Court has come to a conclusion that the second respondent has been permanently employed and was working for 16 years as Checking Inspector and therefore, it cannot be said that the onus on the part of the workman has not been discharged. When prima facie the onus has been discharged by the second respondent, it is for the petitioner/management to prove that the second respondent has not been working regularly in the management at all. Therefore, the contention of the learned counsel for the petitioner that there is jurisdictional error committed by the Labour Court is untenable. I am of the considered view that the second respondent by documents has established that he has been permanently employed under the petitioner/management and in such circumstances, certainly the burden shifts on the employer. 4. In fact, on the side of the petitioner/Management, M.W.2 was examined and his evidence was thoroughly analysed by the Labour Court to come to a conclusion that the petitioner/Management is not in the habit of issuing any appointment orders or regularisation orders. The clinching evidence of M.W.2, who is himself a Checking Inspector, shows that when he was appointed in the year 1974, there was no written order given; in the year 1982, when his service was regularised, there was no written order given; and in the year 1984, when he was appointed as General Checker, there was no written order, and the management was not in the habit of giving written order for any appointments and in the records of the petitioner/management his name itself has never been found and in spite of it, his claim is that he has been working from the year 1974 to 1984 as a Checking Inspector. Therefore, the evidence of M.W.2 is overwhelmingly clear that there are no records available in respect of the service conditions of any of the persons. 5. The further contention of the learned counsel for the petitioner that there is oral evidence by the second respondent to the effect that he is getting rental income to the extent of Rs.1200/- and he has been doing business along with his wife and in spite of it reinstatement has been ordered by the Labour Court with back-wages as a routine, and the same is incorrect. However, it is https://hcservices.ecourts.gov.in/hcservices/ the admitted fact that the second respondent has reached the age of superannuation as early as in the year 2002 and therefore, this issue has become academic. 6. The further contention that even if there is a violation of Section 25-F of the Industrial Disputes Act, there is no question of ordering payment of full back-wages, is also incorrect for the reason that it was only the case of the second respondent/workman that no notice was given before his termination and for non compliance of provision of Section 25-F of the Industrial Disputes Act, he is not claiming retrenchment compensation, but he is entitled to claim reinstatement on the basis that the termination is illegal. Further, simply because in the cross-examination the second respondent has admitted that at one point of time he has claimed a sum of Rs.9 Lakhs as compensation, that by itself cannot deprive the right of the second respondent, if he is otherwise entitled to in accordance with law. 7. The Supreme Court in Sriram Industrial Enterprises Ltd. v. Mahak Singh and others, [2007] 4 SCC 94, has held that in the event of the management withholding the attendance and other registers, including the muster rolls of the previous years, an adverse inference can be drawn and the workman's initial onus is discharged on his producing all the documents in his possession. It is relevant to extract some of the paragraphs, which are as under: "32. The said approach, in our view, was erroneous in view of the decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. v. Ramanuj Yadav, [2003] 8 SCC 334. The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise. 33. In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6N read with Section 2(g) of the U.P. Act which is applicable to these petitions. https://hcservices.ecourts.gov.in/hcservices/ 34. Having correctly interpreted the provisions of Section 6-N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer v. S.T.Hadimani, [2002] 3 SCC 25 were watered down by the subsequent decision in R.M.Yellatti v. Assistant Executive Engineer, [2006] 1 Scc 106 and in our view the workmen had discharged their initial onus by production of the documents in their possession." 8. The jurisdiction of this Court under Article 226 of the Constitution of India while deciding about the award passed by the Labour Court is limited to the extent whether the award is without jurisdiction or there has been manifest error and certainly while appreciating the award passed by the Labour Court, this Court cannot re-appreciate evidence. It is trite law that when once the Labour Court decides an issue on analysis of material facts, merely because a different version is possible on appreciation of evidence by this Court, it does not mean that this Court can substitute its own meaning for such conclusion arrived at by the Labour Court on appreciation of evidence. While analysing about the jurisdiction of this Court under Article 226 of the Constitution of India, I had an occasion to decide in Management of Bata India Limited, Hosur and another v. Presiding Officer, Industrial Tribunal and others, 2010- II-LLJ 175 as under: "18. From the above said categorical legal position, it is clear that the scope of jurisdiction of this Court under Article 226 of the Constitution of India in issuing writ of Certiorari is restricted to cases where there are manifest error in the impugned order or the order is contrary to the provisions of law or the order has been passed without jurisdiction or in cases where the authority, while passing orders has taken into consideration certain extraneous matters which are not relevant or in cases where the authority has failed to take into consideration certain relevant factors, particularly the basic principle that on the materials available, no ordinary reasonable person would come to such a conclusion." 9. The reliance placed on behalf of the learned counsel for the petitioner on various judgements of the Supreme Court to show that the initial onus is on the workman to prove that he has worked continuously for 240 days in the preceding year is not applicable on https://hcservices.ecourts.gov.in/hcservices/ the facts of the present case, because it has been the categoric case of the second respondent that he has been working for 16 years and for minimum 25 days in a month and that was sought to be substantiated with available records, especially Exs.W1 to W3, which has been accepted by the Labour Court and in such circumstances, when the petitioner/management by shifting the responsibility has produced the attendance registers marked as Exx.M4 to M6, the Labour Court on appreciation of the records has found that it does not contain even the signature and it was considered in the context of the evidence given by the management witness M.W.2, who is himself a person working as a Checking Inspector and has stated that the management is not in the habit of maintaining any records, including the issuance of appointment order, regularisation order, etc. Therefore, there is no question of the second respondent/workman proving that he has worked for 240 days in the preceding year. For the reasons aforesaid, I do not see any perversity or illegality in the award of the Labour Court. Accordingly, the writ petition fails and the same is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: The Presiding Officer Principal Labour Court Chennai. 2.The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.R.Vivekananthan, Advocate, SR.8242 1 cc To Mr.K.L.Sekar, Advocate, SR.8007 W.P.No.33465 of 2004 rsy(co) pmk.18.2.2011 https://hcservices.ecourts.gov.in/hcservices/