IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11-4-2008 CORAM THE HON'BLE MR.JUSTICE K. CHANDRU W.P.No.14059 of 1998 The Management of Toshnival Instruments (Madras) Ltd., (formerly known as Tovac Equipment Private Limited, rep by its Manager S-6, Industrial Estate, Ambattur, Chennai-600 058 ... Petitioner vs 1. The Presiding Officer, II Additional Labour Court Madras 2. K. Mohan ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the records of the 1st respondent in I.D.No.282/91 dated 19.5.1997 and quash the same. For petitioner : Ms.Narmada Sampath For 2nd respondent : No appearance ORDER The Management is the Writ Petitioner. Aggrieved by the Award of the Labour Court made in I.D.No.282/91 dated 19.5.1997, the present writ petition has been filed. 2. Heard the arguments of Ms.Narmada Sampath, learned counsel for the petitioner/Management. The second respondent is not appearing either in person or through counsel. 3. By the impugned Award, the Labour Court directed reinstatement of the second respondent with back wages. During the pendency of the writ petition, an interim stay was granted of the operation of the Award on 10.9.1998. Subsequently, the same was modified on 9.12.1999 and this Court directed the Management to deposit a sum of Rs.70,000/- to the https://hcservices.ecourts.gov.in/hcservices/ credit of I.D.No.282/91 on the file of the first respondent and on such deposit, a sum of Rs.10,000/- was directed to be paid to the workman/R2 and the balance sum was directed to be invested in a Fixed Deposit with Indian Bank, Egmore Branch for a period of four years. The workman was also permitted to withdraw the interest on the said amount. Further with effect from 1.1.2000, the Management was directed to pay wages in terms of 17-B of Industrial Disputes Act at the rate of Rs.600/-per month. 4. During the interim order, the Management was permitted to exercise its option of reinstating the workman, The Management though was not willing to reinstate the workman at that time subsequently, he was reinstated. But he was not paid the current wages, which forced the workman to take out an application before this Court. This Court, by order dated 13.3.2001 directed the Management to pay the workman Rs.2,500/-per month together with usual annual increments till the disposal of the writ petition. 5. Before the Labour Court, the second respondent pleaded that he was denied employment with effect from 21.9.1990. Few weeks before the said date, he had met with an accident, which necessitated the workman to get himself treated in the hospital run by E.S.I., Corporation. When he went to ESI Corporation, he was informed that he was not insured and no subscription was paid by the Management. Then the workmen showed his pay slips, and it was seen amounts were deducted towards E.S.I. Hence action was taken by the E.S.I authorities against the management. 6. Before the Labour Court, the petitioner/Management pleaded that originally the workman was mentioned as an Apprentice under the "Apprentice Training Programme" and after the training, there was no obligation to provide any such employment and they had employed him occasionally and no part of his employment, he had put in 240 days' of continuous service at any point of time. 7. In the counter statement filed before the Labour Court, the petitioner/Management had also stated that the workman himself stopped coming to work after completion of the apprenticeship course from 29.3.90. The workman also filed a rejoinder before the Labour Court and certain pay slips were produced showing that the workman has worked subsequent to march 1990. 8. Before the Labour Court, the workman had examined himself as W.W.1 and on the side of the Management, P. Sethuraman was examined as M.W.1. 9. The Labour Court, in the impugned award, referred to all the evidence, including oral and documentary, and held in paragraphs 14 and 15 that the statement made by the petitioner/Management before the Labour Court was contrary to the records and it is made only to deny the https://hcservices.ecourts.gov.in/hcservices/ employment to the workman. The Labour Court took into account the various pay slips produced by the workman which were marked as Exs.W.10 to W.23 and held that the workman had worked even after the accident and upto the date of his non-employment viz., 21.9.90. 10. In paragraph-17 of the Award, it was also mentioned that M.W.1 in his cross examination had offered to produce acquittance rolls and payment registers, but they did not do so. In the absence of the Management discharging their obligation to disprove the averments made by the workman, the Labour Court on the basis of materials produced by the workman took adverse inference about the inaction on the part of the management and held that the workman had worked for more than 240 days and his non employment may be due to the complaint made by the workman before the E.S.I authorities. 11. The Labour Court came to the conclusion that the workman was not a casual labour and there is no reasonable cause for denying the employment and that he had worked for more than 240 days in a year in the petitioner's establishment. In that view of the matter, the relief as noted earlier, was granted by the Labour Court under the impugned Award. 12. So far as the question of 240 days' of service is concerned, Ms.Narmada Sampath, learned counsel for the petitioner/Management submits that even assuming that the Management had not produced the registers, it is incumbent on the part of the workman to prove that he had actually worked 240 days and the burden of proof cannot be shifted on the management. The question of drawing any adverse inference does not arise because all that the workman had produced was only some pay slips and even if the number of days are calculated from them, 240 days cannot be arrived at. 13. The submission made by the learned counsel on the onus proof may be broadly correct. But the question of burden of proof is a concept keep shifting from time to time. Though the necessary burden is on the workman to prove the total number of days he had worked, but the fact that the Management had denied his employment after March 1990, which statement was disbelieved by the Labour Court and also coupled with the fact that the workman produced several pay slips which were available with him as well as the inaction on the part of the Management in not producing the statutory registers, even though M.W.1 had offered to produce the same, clearly proves that in the present case when the burden of disproving shifted on the management. They had not discharged their obligation under law. 14. Thereafter, the learned counsel submitted that in any event grant of back wages in a case of alleged retrenchment does not arise. In that context, the learned counsel relied on the judgment of the Supreme Court reported in 2006 (1) L.L.N 125 (Uttar Preadesh State https://hcservices.ecourts.gov.in/hcservices/ Brassware Corporation, Ltd and another vs Udai Narain Pandey). In Paragraph-48 of the said Award, the Supreme Court held that in granting relief, application of mind on the part of the industrial Court is imperative and payment of full back-wages, therefore, cannot be a natural consequence. 15. Even though there is no quarrel over the said proposition, the said decision is distinguishable. In paragraph-62, the Supreme Court held that the industry, in which, the workman was directed to be reinstated, was sold during the pendency of the dispute and in that context the Court held that direction to pay full back wages is not proper and the Court restricted the relief to payment of 25% of back wages for the period during which, the workman was not employed. 16. In the present case, we are not faced with any such circumstances because when the Management was directed to make payment under Sec.17-B of the I.D.Act the Management took advantage of the observation made by this Court in the interim order and reinstated the workman. By a further direction also enhanced his wages to Rs.2,500/- together with annual increments. It is stated that the workman is still in service though without prejudice to the rights of the parties. It clearly shows that it is a running industry and the workman's service are required. 17. Thereafter, the learned counsel referred to an unreported decision of this Court in W.P(MD)No.8315 of 2005 in M. Natarajan vs The Special Officer, Madurai District Central Co-op Bank Ltd, Madurai. In that decision (rendered by me), it was pointed out in paragraph-8 that the workman did not move the Labour court after his oral termination nearly for five years and in that context it was held that the Labour Court ought not to have compensated for the deliberate delay on the part of the workman moving the Labour Court. I do not think that the above said case can apply to the facts of this case. 18. Under such circumstances, I do not find any merit in entertaining the writ petition. Hence the writ petition fails and the same is dismissed. But in so far as the wages for the period of non- employment is concerned, it is admitted that the workman was receiving Rs.600/- from December 1999 till the workman was reinstated. Subsequent to the reinstatement, the workman was paid enhanced wages after the interim order. 19. By the Interim Orders of this Court dated 9.12.99, the Management had already deposited Rs70,000/-, out of which, Rs.10,000/- has been withdrawn by the workman. The balance amount of Rs.60,000/- is permitted to be withdrawn by the second respondent, which was invested in Fixed Deposit with the Indian Bank, Egmore Branch to the credit of IP No.282/91. In the circumstances of the case it is directed that the workman is not entitled for any more wages in terms of the Award of the https://hcservices.ecourts.gov.in/hcservices/ Labour Court impugned in this writ petition. 20. Except for the above direction, the writ petition stands dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sr To 1. The Presiding Officer, II Additional Labour Court Madras 2. The Indian Bank, Egmore Branch Chennai 3. The Section Officer, Accounts Section, High court, Madras. +1 cc to Mr.r.Parthiban, Advocate, SR.No.21210. Ku (Co) krd / 2.5 W.P.No.14059 of 1998 https://hcservices.ecourts.gov.in/hcservices/