IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.8.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.Nos. 45488 of 2002 and 35205 of 2004 W.P.No.45488 of 2002 G.Vetrivel .. Petitioner in W.P.No.45488/2002 -Vs- 1. The Station Master Singapore Airlines Second Floor, Anna International Terminal Madras International Airport Chennai-600 027. 2.The Central Government Industrial Tribunal-cum- Labour Court, 1st Floor, Shastri Bhavan 'B' Wing 26, Haddows Road, Chennai-600 006. .. Respondents in W.P.No.45488/2002 W.P.No.35205 of 2004 D.Sasikumar .. Petitioner in W.P.No.35205/2004 -Vs- 1. The Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, 1st Floor, Shastri Bhavan 'B' Wing 26, Haddows Road, Chennai-600 006. 2. The Station Master Singapore Airlines Second Floor, Anna International Terminal Madras International Airport Chennai-600 027. .. Respondents in W.P.No.35205/2004 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.45488 of 2002 has been filed praying this Hon'ble Court to issue a writ of certiorarified mandamus to call for the records relating to the Award in I.D.No.107 of 2001, dated 24.5.2002 from the second respondent Tribunal and to quash the same and consequently to direct the first respondent to reinstate the petitioner in services, with effect from the date of illegal termination, together with back wages, continuity of service and all other attendant benefits and award costs. W.P.No.35205 of 2004 has been filed praying this Hon'ble Court to issue a writ of certiorarified mandamus to call for the records relating to the Award in I.D.No.109 of 2001, dated 24.5.2002 from the first respondent Tribunal and to quash the same and consequently to direct the second respondent to reinstate the petitioner in services, with effect from the date of illegal termination, together with back wages, continuity of service and all other attendant benefits and award costs. For petitioners in both W.Ps. : Mr. K.M.Ramesh For respondent No.1 in WP. No.45488 of 2002 : Mr.M.Vijayan For R2 in W.P. for M/s.King & Patridge No.35205 of 2004 R2 in WP.No.45488/2002 & R1 in W.P.No.35205/2004 - Tribunal. COMMON ORDER There are two writ petitions filed by two employees challenging the Awards passed by the Central Government Industrial Tribunal-cum-Labour Court in I.D.Nos.107 and 109 of 2001, dated 24.5.2002, the second respondent in W.P.No.45488 of 2002, in and by which, the claims of the petitioners for reinstatement were rejected. Aggrieved by the same, the present writ petitions have been filed. 2. While advancing his arguments, Mr.K.M.Ramesh, learned counsel appearing for the petitioners in both the writ petitions, has submitted that the petitioners G.Vetrivel and D.Sasikumar were temporarily appointed as Loaders on 17.3.1994 to load and unload the baggages in the Aircraft. The Station Master, Singapore Airlines, the first respondent in W.P.No.45488 of 2002 and second respondent in W.P.No.35205 of 2004 has also issued the passes to them to enter into the International Airport Authority of India and to carry out the day-to day work. Further, the respondents https://hcservices.ecourts.gov.in/hcservices/ Airlines also used to write letters to the International Airport Authority of India to accept the passes for carrying out the work. Thereafter, from 22.3.1994 till 16.6.1994, temporary passes were issued by the Bureau of Civil Aviation Security to enter the Airport and to work under the respondents Aircraft. 3. The learned counsel for the petitioners further submitted that though passes were produced as exhibits before the Labour Court, the Labour Court having seen those documents and after taking note of the fact that the above documents indicate the designation and place of work and the names of the petitioners, has finally refused to accept the case of the petitioners that they have worked for more than 240 days. On this basis, he further contended that the Awards passed by the Labour Court are not only unjustified but also perverse. 4. The further arguments advanced by the learned counsel for the petitioners shows that the Management is duty bound to inform the Authorities under Industrial Disputes Act, 1947 and the Rules made thereunder about the number of days the employees worked. These facts have not been disputed by the respondents Airlines, but simply disengaged the petitioners after completing 240 days continuous service in a period of twelve calendar months. The learned counsel has further contended that the respondents acted against the rights of employees under Section 25F of the Industrial Disputes Act, 1947. On that basis, he prayed for setting aside the Awards passed by the Industrial Tribunal. In support of his submission, he also relied upon a Judgment of the Apex Court in R.M.YELLATTI Vs. THE ASSISTANT EXECUTIVE ENGINEER (AIR 2006 SC 355) for a proposition that in case of termination of service of daily wage workman, there will be no letter of appointment and there will also be no proof to show the receipt for payment of wages. Therefore, in most cases, the workman/employee can only call upon the respondents Management to produce the proof viz. muster roll or wage register or attendance register of the employee into the Court in order to draw adverse inference upon the Management, but the Labour Court without calling upon the management to produce the documents, wrongly dismissed the claim and such an approach is liable for interference. On this basis, the learned counsel for the petitioners prays for setting aside the Award. 5. Per contra, the learned counsel appearing for the respondents Airlines, has submitted by refuting all the allegations made by the petitioners that at no point of time, the petitioners worked with the respondents Airlines for more than 240 days. Even if they worked for 240 days, when they approached the Labour Court, it is their duty to discharge the burden by producing evidence that they have https://hcservices.ecourts.gov.in/hcservices/ worked for more than 240 days. He further submitted that in the present case, both the petitioners by their own mouth have categorically admitted before the Industrial Tribunal/Labour Court by standing in the witness box that they did not remember the number of days they worked. Even though the Labour Court ventured, they were not able to establish their case by producing relevant documents viz., Identity Card or Pass book said to have been issued beyond 240 days. He further submits that in the absence of the said documents like Identity Cards, Pay slips etc, the Labour Court could not be able to draw any adverse inference against the management. On this basis, he prayed for dismissing the writ petitions. In support of his submission, he also relied upon the following two Judgments of the Apex Court:- " 1) KRISHNA BHAGYA JAL NIGAM LTD. VS. MOHD. RAFI (2006) 9 SCC 697) 2) SRIRAM INDUSTRIAL ENTERPRISES LTD. VS. MAHAK SINGH AND ORS. (AIR 2007 SC 1370)" 6. While dealing with the similar issue, the Apex Court in the case in KRISHNA BHAGYA JAL NIGAM LTD. VS. MOHD. RAFI (2006) 9 SCC 697), by discussing with several other decisions of the Apex Court, has finally held that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, the Apex Court has held that drawing of adverse inference ultimately would depend on the facts of each case. In the above decision, it was held that the initial burden of proof is on the workman to show that he had worked for 240 days in a year, and this burden can be discharged only by stepping into the witness box. 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. Under these circumstances, the Apex Court has further held in the above decision 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. 7. In Municipal Corpn., Faridabad v. Siri Niwas ((2004) 8 SCC 195), the Apex Court has held that the burden was on the workman to show that he was working for more than 240 days in the preceding one year prior to his alleged retrenchment. In M.P.Electricity Board v. Hariram ((2004) 8 SCC 246), this has been reiterated in para 11 as follows: "11. The above burden having not been discharged and the Labour Court having held so, in https://hcservices.ecourts.gov.in/hcservices/ our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in Municipal Corpn., Faridabad v. Siri Niwas ((2004) 8 SCC 195) wherein this Court disagreed with the High Court's view of drawing an adverse inference in regard to the non- production of certain relevant documents. This is what this Court had to say in that regard: (SCC p.198, para 15) "15. A court of law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The mater, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse interference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent." 8. Again, in Manager, Reserve Bank of India v. S.Mani ((2005)5 SCC 100), a three-Judge Bench of the Apex Court considered the matter and held that the initial burden of proof was on the workman to show that he had completed 240 days of service. 9. Therefore, in view of the above said decisions of the Apex Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles, I find that the initial burden has not been discharged by the workman. https://hcservices.ecourts.gov.in/hcservices/ Further, when I look at the deposition recorded before the Labour Court, it is seen that the petitioners themselves, by stepping into the witness box, have stated that they do not know as to how many days they worked under the Management, that shows that they failed to discharge their burden, that they worked for 240 days in a year. 10. In view of the aforesaid reasons, I do not find any merit in the writ petitions filed by the petitioners and accordingly, the same are dismissed. No costs. Sd/- Deputy Registrar //true copy// Sub Asst.Registrar vks Copy to:- The Registrar, Central Government Tribunal-cum- Labour Court, 1st Floor, Shastri Bhavan 'B' Wing, 26,Haddows Road, Chennai-600 006. 2 cc to Mr.K.M.Ramesh, Advocate, Sr.No.51810 COMMON ORDER in W.P.Nos. 45488 of 2002 and 35205 of 2004 KK {CO} TP/28.9.2011. https://hcservices.ecourts.gov.in/hcservices/