IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.17324 of 2000 1. The Management of Metropolitan Transport Corporation (Chennai Division-II) Ltd. Formerly known as Dr.Ambedkar Transport Corporation Chennai 2. The Management of Metropolitan Transport Corporation (Chennai Division-I)Ltd. Formerly known as Pallavan Transport Corporation Ltd., Pallavan Salai Chennai-2 .. Petitioners Vs. 1. The Presiding Officer Principal Labour Court Chennai 2. M.Venkatesan .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the 1st respondent relating to the Award passed in I.D.No.348 of 1995 dated 24.11.1997 and quash the same. For Petitioner :: Mr.V.R.Kamalanathan For Respondents :: R1-Court Mr.K.M.Ramesh for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard both sides. 2. The two petitioners are the State owned Transport Corporation. They have filed the present Writ Petition seeking to challenge the award of the 1st respondent Labour Court in I.D.No.348 of 1995 dated 24.11.1997. By the impugned award, the Labour Court directed the reinstatement of the 2nd respondent with service continuity, backwages and other attendant benefits. 3. The Writ Petition was admitted on 12.10.2000. In the stay application, initially notice was ordered. Subsequently, the workman took out an application for payment of wages under section 17-B of the Industrial Disputes Act and also filed vacate stay application. The Court passed a consolidated order on the stay application as well as direction and vacate stay application on 8.10.2001. It was decided that the management should pay Rs.500/-by way of last drawn wages to the workman and it should start from October 2000 till the disposal of the Writ Petition. Since there was no stay granted by this Court, the 2nd respondent has moved the Labour Court under section 33-C (2) of the Industrial Disputes Act claiming the arrears of wages payable on account of the award. 4. The said Claim Petition was taken on file as C.P.No.1186 of 1997 before the Labour Court and the worker was given liberty to proceed with the Claim Petition. It is now claimed by Mr.K.M.Ramesh, learned counsel for the 2nd respondent that the Labour Court has proceeded with the claim petition and computed the amount to Rs.2,32,097/-. Since the petitioner Corporation has not filed all the material papers, this Court by an order dated 15.2.2010 directed the Registry to call for the entire case papers from the Labour Court. It was also summoned and circulated to this Court for perusal. 5. The case of the 2nd respondent as projected before the Labour Court in I.D.No.348 of 1995 was that he was employed as Casual Labourer/Material Handler on 2.1.1986. After the formation of the 2nd petitioner Corporation, he was employed in that Corporation from 1.4.1994 and had worked for more than 240 days. Despite the same, he was not made permanent. However, on 25.7.1994, he was retrenched from service and he was drawing salary of Rs.15/- per day. The said termination was done without https://hcservices.ecourts.gov.in/hcservices/ notice and without compensation and his juniors were retained. As per Sections 25-F and 25-N of the Industrial Disputes Act, he claimed reinstatement, continuity of service and backwages. 6. In response to the claim made by the 2nd respondent, the 2nd petitioner Corporation filed a counter statement dated 22.10.1996. In that counter statement, they had admitted that the 2nd respondent was engaged as Casual Labourer initially at the rate of Rs.15/- per day with the 1st petitioner Corporation and after the formation of the 2nd petitioner on 19.1.1994, he was engaged as casual labourer with effect from June 1994 and that too as and when work was available. He was never given any appointment order nor any termination order, as he was casual labourer. The question of infraction of Sections 25-F or 25-N or 25-G of the Industrial Disputes Act will not arise. 7. Before the Labour Court, the 2nd respondent examined himself as W.W.1 and marked 6 documents as Ex.W.1 to W.6. Insofar as the petitioner Corporation is concerned, M/s.Durairaj and T.N.Sugumar were examined as M.W.1 to M.W.6, but no documents were produced before the Tribunal. The workman had filed Ex.W.3 containing the various appointment orders given to him as Ex.W.3 series. In Ex.W.5 series, he also produced Photostat copies of the acquittance register. He also filed Ex.W.6 series, which is the Photostat copies of the attendance register. The Tribunal by its Award dated 24.11.1997 held that the petitioner Corporation though examined two witnesses, but they gave only oral evidence and no documents were produced. On the other hand, the workman had given Ex.W.1 to W.6, which proves that the workman had worked for more than 240 days. He was terminated from service by not following the mandatory provisions prescribed in Section 25-F of the Industrial Disputes Act. Therefore, accepting the evidence of the workman, the Labour Court granted the relief of reinstatement with continuity of service and backwages, which is a normal course and it is the appropriate relief. It is against this award, the petitioner Corporation has come forward to file the present Writ Petition. 8. The stand taken by the petitioner Corporation was the very same stand, which was advanced before the Labour Court and was not found accepted by the Labour Court. However, Mr.V.R.Kamalanathan, learned counsel for the petitioners made a further submission that in a matter of this nature, it is for the workman to prove by sufficient evidence regarding the number of days worked by him and the workman has not proved to the satisfaction of the authority. For proving that he had worked for more than 240 days, no https://hcservices.ecourts.gov.in/hcservices/ application was filed by him, summoning documents from the petitioner Corporation with regard to attendance details. Therefore, One cannot find fault with the Corporation in not discharging its obligation under law. The burden of proof is essentially on the workman and not on the Corporation. 9. However, a perusal of the original records produced would show that the workman had produced documents to the extent possible, the acquittance register marked as Ex.W.5 series and the attendance register marked as Ex.W.6 series. It is for the petitioner Corporation to have filed a contra material to disprove the stand taken by the workman and the documents produced by workman, as they were Photostat copies, are not acceptable in evidence. On the contrary, the public Corporation like the petitioners did not even produce a single document to the satisfaction of the Court. 10. The learned counsel for the petitioners also placed reliance upon two judgments of the Supreme Court in Essen Deinki v. Rajiv Kumar,(2002) 8 SCC 400. The reliance was placed upon paragraph 15 of the judgment, which reads as follows: "15. Significantly, the appellant’s contention does not run counter to the opinion expressed in American Express4. It has been the definite contention of Mr Ranjit Kumar that even the test laid down under American Express4 does not stand to acceptance of the workmen’s case. The requirement of the statute of 240 days cannot be disputed and it is for the employee concerned to prove that he has in fact completed 240 days in the last preceding 12 months’ period. As noticed hereinbefore, it has been the definite case of the workman concerned whilst at the stage of evidence that he has not worked for 240 days, as noticed hereinbefore in this judgment more fully. And it is on this score Mr Ranjit Kumar has been rather emphatic that the High Court has thus fallen into a grave error in reversing the order of the Labour Court. It is a finding of fact which the High Court cannot possibly overturn without assailing the order of the Labour Court as otherwise perverse. The High Court unfortunately has not dealt with the matter in that perspective." 11. He also relied upon the judgment of the Supreme Court in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, https://hcservices.ecourts.gov.in/hcservices/ reported in (2004) 8 SCC 161 and reliance was placed upon paragraph 6 of the judgment, which reads as follows: "6. 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 Range Forest Officer v. S.T. Hadimani 1. 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. Even if that period is taken into account with the period as stated in the affidavit filed by the employer, the requirement prima facie does not appear to be fulfilled. The following period of engagement which was accepted was 6 days in July 1991, 15-1/2 days in November 1991, 15-1/2 days in January 1992, 24 days in February 1992, 20-1/2 days in March 1992, 25 days in April 1992, 25 days in May 1992, 7-1/2 days in June 1992 and 5-1/2 days in July 1992. The Labour Court demanded production of muster roll for the period of 17-6-1991 to 12-11-1991. It included this period for which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days without indicating as to the period to which period these 240 days were referable." 12. Per contra, Mr.K.M.Ramesh, learned counsel for the workman relied upon the judgment of the Supreme Court in R.M. Yellatti v. Asst. Executive Engineer reported in (2006) 1 SCC 106. Reliance was placed upon paragraph 16 and 17 of the judgment, which reads as follows: "17.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 under Section 10 of the https://hcservices.ecourts.gov.in/hcservices/ 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." 13. It must be noted that the said judgment in R.M.Yellatti is given by a Three Judge Bench, wherein Kapadia, J had stated that the though the burden of proof is on the claimant to show that he had worked for 240 days in a year, that burden will be discharged upon the workman stepping into the witness box and speaks about the days of employment. In such circumstances, if there are oral and documentary evidence, then his burden will be discharged. The Court also entered a note of caution to state that a daily wage earner will not have a letter of appointment or termination, including proof of payment. Therefore, in most cases, muster rolls will not be produced. It is only in case where such documents were summoned but not produced, an adverse inference can be drawn. Otherwise, mere non-production of the muster rolls by itself will not enable the Labour Court to draw an adverse inference and held that the workman had produced necessary https://hcservices.ecourts.gov.in/hcservices/ records. 14. It is also necessary to refer to subsequent judgment in M/s.Sriram Industrial Enterprises Ltd. v. Mahak Singh, reported in (2007) 4 SCC 94. Speaking for the Bench, Altamas Kabir, J., after referring to the earlier judgment on the issue in paragraph Nos.31 to 34 had observed as follows: "31. In the light of the aforesaid case made out by the respondents, the Tribunal was persuaded on behalf of the petitioner herein to decide the case of the workmen on the basis of the materials produced by the petitioner for the year preceding the date of termination of their services from which it was shown that the workmen had not completed 240 days of continuous service in the said year. 32. The said approach, in our view, was erroneous in view of the decision of this Court in U.P. Drugs & Pharmaceuticals Co. Ltd.7 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 6-N read with Section 2(g) of the U.P. Act which is applicable to these petitions. 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 https://hcservices.ecourts.gov.in/hcservices/ burden of proof in Range Forest Officer case1 were watered down by the subsequent decision in R.M. Yellatti case8 and in our view the workmen had discharged their initial onus by production of the documents in their possession." 15. If we apply the facts, in the light of the decisions referred to above, in the present case, the workman had proved himself correctly not only going into the documents but also producing relevant documents filed for the purpose of making the Labour Court to accept the pleadings filed by him. On the other hand, it is the petitioner Corporation, which did not discharge its burden cast upon on it by letting any evidence. 16. In the light of the above, it is not a fit case, where any interference is called for in the award made by the 1st respondent Labour Court . Hence, the Writ Petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Presiding Officer Principal Labour Court Chennai +1cc to Mr.V.R.Kamalanathan, Advocate Sr 16065 +1cc to Mr.K.M.Ramesh, Advocate Sr 16072 DM(CO) km/23.3. W.P.No.17324 of 2000 https://hcservices.ecourts.gov.in/hcservices/