IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2010 CORAM: THE HONOURABLE Mr. JUSTICE K. CHANDRU W.P.No.20049 of 2000 M.Thangamani ..Petitioner Versus 1. The Secretary Public Works Department Government of Tamil Nadu Fort St.George, Chennai – 9. 2. The Supervisor Radio Sub-division Public Works Department Government of Tamil Nadu Fort St. George, Chennai – 9. 3. Presiding Officer II Additional Labour Court Chennai. ..Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for the records and quash the award dated 28.09.1998 in I.D.No.377/95 passed by the 3rd respondent herein and consequently direct the respondents 1 and 2 herein to reinstate the petitioner as Helper (Electrical) in the 1st respondent Department with backwages, continuity of service and all other consequential benefits. For Petitioner : Ms.S.Suganthi For Respondents 1 & 2 : Mr.P.Subramanian Additional Government Pleader O R D E R Heard both sides. 2.The petitioner is a workman. He has come forward to challenge the award dated 28.09.1998 passed by the third respondent- Labour Court in I.D.No.377/95. https://hcservices.ecourts.gov.in/hcservices/ 3.The writ petition was admitted on 29.11.2000. The facts leading to the case are as follows: (a) The petitioner was employed as a Sound Operator in the Radio Wing operated by the Assistant Executive Engineer, Radio Sub- Division. The petitioner was engaged from time to time and when he was finally denied employment, he raised a dispute before the Government Labour Officer against the alleged non-employment during the year 1993. (b) The said dispute was conciliated upon by the Labour Officer and a failure report was given to him on 08.05.1995. On the strength of the failure report, the petitioner filed his claim statement before the Labour Court. (c) The Labour Court took up the dispute on the file as I.D.No.377/95 and ordered notice to the contesting respondents. (d) The contesting respondents filed a counter statement dated 10.04.1995. In the counter statement, they have taken the stand that the persons like the petitioner were engaged on 90 days employment and there was no continuous service given to the petitioner. For the purpose of arranging sound equipments in the Secretariat, a separate wing is functioning under the control of the Executive Engineer. The Wing in which the petitioner was employed is only covering the conference hall and training centre functioning under the control of Assistant Executive Engineer. It was also stated that the petitioner was not engaged beyond 90 days and only engaged on exigency of employment. 4.Before the Labour Court, the petitioner examined himself as WW1 and on the side of the Public Works Department, one Prema was examined as MW1. The petitioner had filed 9 documents and the same were marked as Ex.W1 to Ex.W9. The Labour Court held that the petitioner had not put in 240 days of service inspite of the fact that even after the weekly off is included in his service record. The Labour Court refused to believe the certificate produced by the petitioner, issued by one Chandrasekar, Radio Supervisor. The Labour Court held that the petitioner had not proved as to who gave the certificate and his authority to grant such certificate. Even though in the certificate obtained by the petitioner, marked as Ex.W3, on the reverse side of the said certificate, it was stated that the petitioner was employed from 7/91 to 1/93 as a Helper. But that itself cannot be a sufficient proof that the petitioner had worked for 240 days in each year of service. The slips produced by the petitioner in Ex.W2 series will show that in January 1993, he worked only for 21 days. The fact that he worked during February 1993 to September 1993 for a period of 84 days was not mentioned therein. Therefore, the Labour Court held that the petitioner had not proved to the satisfaction of the Court that he had put in 240 days of https://hcservices.ecourts.gov.in/hcservices/ service for the purpose of coming within the service condition of Chapter 5-A of the Industrial Disputes Act. 5.On the contrary, the Labour Court held that MW1, who was the Assistant Executive Engineer, had stated in her evidence that the petitioner was only engaged on daily wages basis and there was no specific post sanctioned. On the days when he was engaged, he has been paid wages and the days, when there was no work, he was not given any employment. She also stated that the petitioner was terminated after two years and another person was employed in the post held by the petitioner. It is on the basis of these materials, the Labour Court came to the conclusion that the petitioner is not entitled for any relief. It is against this award, the petitioner has come forward to challenge the same after a period of two years. 6.The contention raised by the petitioner was that the Labour Court further alleged that the certificate produced by the petitioner shows that he had worked for two years. Though in the affidavit filed in support of the writ petition, in para 11 a contention was raised regarding the computation of continuous service as found in Section 25-B of the Industrial Disputes Act and also it was further argued that in the presence of Ex.W3-certificate, it is unnecessary to prove that the workman has put in 240 days of service. Yet in the same para, it was stated that in fact he was not stated to be in continuous service, apart from the artificial breaks. When the service is not continuous, then it is obligatory on the part of the petitioner to prove that he has actually worked for 240 days. 7.In the present case, the Labour Court recorded a finding of fact namely, even after inclusive of holidays, his service is not for 240 days. The learned counsel for the petitioner relied upon the judgment of the Supreme Court in WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION reported in AIR 1986 SC 458. In that case, the Supreme Court after going into the calculation for the purpose of 240 days in terms of Section 25-B of the Industrial Disputes Act, held as follows: "5.............. The expression which we are required to construe is "actually worked under the employer". This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. ............." https://hcservices.ecourts.gov.in/hcservices/ 8.There is no quarrel with the proposition of law propounded by the Supreme Court and on the other hand, the Labour Court conscious of such an argument, had recorded a finding that even after inclusive of holidays, the petitioner had not put in 240 days of service. When the Labour Court held that the petitioner had not proved to the satisfaction of the Court that he had worked for 240 days, no infirmity can be found on the award passed by the Labour Court and the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To 1. The Secretary, Public Works Department, Government of Tamil Nadu, Fort St.George, Chennai – 9. 2. The Supervisor, Radio Sub-Division, Public Works Department, Government of Tamil Nadu, Fort St. George, Chennai – 9. 3. The Presiding Officer, II Additional Labour Court, Chennai. W.P.No.20049 of 2000 AKR (CO) GSK 18.03.2010. https://hcservices.ecourts.gov.in/hcservices/