IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.07.2011 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.12964 of 2003 Tamil Nadu Handicrafts Development Corporation, Rep. by its Secretary & Personnel Management, No.759, Anna Salai, Chennai - 600 002. ... Petitioner Vs. 1.B.R.Padmanabhan 2.The Principal Labour Court, City Civil Court Buildings, High Court Campus, Chennai - 600 104. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorari to call for the records pertaining to I.D.No.698 of 1997, dated 07.11.2001 on the file of the 2nd respondent, namely the Principal Labour Court, Chennai. For Petitioner :Mr.N.Jyothi For Respondents :Mr.M.Boopathy for R1 R2 - Court ORDER The petitioner has filed the present writ petition challenging the correctness of the award passed by the Principal Labour Court, in and by which, the Principal Labour Court has ordered the petitioner's corporation to reinstate the first respondent in service. 2. This is a case where the first respondent-B.R.Padmanabhan, after being dis-engaged by the petitioner's corporation on 20.05.1997, filed a petition before the Conciliation Officer. After the conciliation proceedings met with failure, once again he has raised an industrial dispute under Section 2-A(2) of the Industrial Disputes Act before the 2nd respondent-Principal Labour Court. 3. A claim made by the first respondent before the Principal Labour Court was that he was employed in the petitioner's corporation as Sales Assistant on 06.06.1994. But, after some time, he was https://hcservices.ecourts.gov.in/hcservices/ illegally retrenched from service from 20.05.1997. When he was drawing a salary of Rs.65/- per day from the petitioner's corporation, even without any notice whatsoever, the petitioner's corporation has retrenched the service of the petitioner totally in violation of Section 25-F of the I.D. Act. As he was not given any notice for retrenchment from service, he prayed for passing the suitable award, by accepting his claim petition, before the 2nd respondent - Principal Labour Court. 4. Before the Labour Court, the petitioner's Corporation has also filed a detailed counter raising the maintainability of the claim petition under Section 2-A of the I.D. Act. When the petitioner's corporation had argued their case before the Labour Court that the said Act was not applicable to the case of the petitioner as he was not employed for more than 10 days in the petitioner's corporation and even for that 10 days also, he was recruited for a stop gap arrangement only as a daily wager to meet the festival sales and other activities in the petitioner's corporation, the second respondent-Labour Court has allowed the claim petition directing the petitioner's corporation to reinstate the first respondent with backwages, without taking into consideration the burden of proof that always lies with the first respondent. 5. Learned counsel appearing for the petitioner further submits that when the first respondent was appointed for 10 days on a daily wage basis to meet the festival sales in the petitioner's corporation, he has to establish his case before the Labour that he was appointed by issuing any appointment order. When the first respondent has failed to establish his case that he was an employee of the petitioner's corporation, the second respondent-Labour Court cannot shift the burden of proof upon the petitioner's corporation, when they have already discharged the onus admitting that the employee was engaged on stop gap arrangement only for 10 days to meet the festival rush. Further, it was contended that when the first respondent miserably failed to produce any document to show that the first respondent has worked in the petitioner's corporation as an employee for more than 10 days, the Labour Court should have dismissed the claim petition made by the first respondent, by holding that the first respondent was not employed on a regular basis. When there is no finding given on this issue, the award passed by the Labour Court is not legally sustainable in the eye of law. On that basis, he further contended that except a direction to reinstate the first respondent with payment of backwages, no other finding has been given by the Labour Court. On that note, he prayed for setting aside the award passed by the Labour Court, as it is not legally maintainable. 6. Per contra, learned counsel appearing for the first respondent has submitted that when the first respondent was appointed as Salesman on 06.06.1994, he has worked for more than 240 days. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the petitioner's corporation, before retrenching the first respondent, should have atleast issued a notice. As they have not done so, the first respondent has rightly approached the Conciliation Officer by moving an application. The Conciliation Officer, even after completing the proceedings, was unable to submit any report, which resulted the first respondent to raise an industrial dispute under Section 2-A of the Act before the Labour Court. When the first respondent has approached the Labour Court, the Labour Court accepted the case of the first respondent on the ground that the petitioner's corporation has deliberately concealed all the documents including the register maintained by the petitioner's corporation. Therefore, the Labour Court has rightly putting onus upon the petitioner's corporation finally allowed the claim petition directing the petitioner's corporation to reinstate the first respondent with backwages along with continuity of service. Therefore, the award passed by the second respondent with reinstatement of service need not be interfered with. 7. Heard the learned counsel appearing on either side and perused the materials available on record. 8. It is a case where the first respondent was appointed as Salesman on 06.06.1994 in the petitioner's corporation. The counter statement filed by the petitioner's corporation before the second respondent shows that only to meet the festival sales in their exhibition, they have gone for appointing some persons on daily wage basis, therefore, when the petitioner's corporation has filed a counter stating that first respondent was not appointed on regular basis and he was appointed only for 10 days to meet the festival rush in the showroom, the question of proving the appointment made by the petitioner's corporation appointing the first respondent in their corporation on regular basis is certainly cast on the first respondent. In fact, the first respondent also except making a bald statement in his claim petition, nowhere he has mentioned the date of appointment or the payment of salary received by him from the petitioner's corporation, his nature of work discharged, the co- employees worked along with him. 9. At this juncture, it is not out of context to refer to maxim of affirmatis est probare, the person who affirms must prove. In the present case, the first respondent, who has made a claim that he has worked for more than 240 days in the petitioner's corporation, should have furnished atleast a minimum evidence to the Labour Court to accept his claim that he has worked for more than 240 days. Since the proof is incumbent on the one who affirms, not on the one who denies, the Labour Court ought not to have accepted the claim of the first respondent, particularly, when the petitioner's corporation specifically took a plea that he was appointed only for 10 days to meet the festival rush in their showroom. Further, when the petitioner's corporation has maintained their stand before the Labour https://hcservices.ecourts.gov.in/hcservices/ Court pleading that the first respondent was appointed only for 10 days by way of stopgap arrangement, the Labour Court should have insisted upon the first respondent to produce atleast some information, like, appointment order, ID card if any issued by the petitioner's corporation or a copy of pay slip. But, on the other hand, the Labour Court, by merely accepting the averments made in the claim petition, wrongly allowed the prayer by passing the award. 10 Though the learned counsel for the first respondent cited a judgment of the Apex Court in Triveni Engineering and Industries Limited Vs. Jaswant Singh and Another ((2010) 9 SCC 151) on the point to decide whether a person is workman or not, the said judgment does not lend any support to the case of the petitioner. In paragraph 22 thereof, the Apex Court has held that whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue is the nature of job performed by the person concerned, duties and responsibilities vested in him and other such relevant material. Therefore, even if this Court applies the test mentioned in the above said judgment, as per the observation made in paragraph 22 thereof, the first respondent has failed to establish his case before the Labour Court by producing minimum evidence. Secondly, in another judgment referred by the learned counsel for the first respondent, in the case of Srirangam Co-operative Urban Bank Ltd., Srirangam, Vs. Labour Court, Madurai (1996 (1) L.L.N.647), a Division Bench of this Court has held that an employee, who enters the service, under a valid contract of service, cannot be terminated without complying with the provisions of Section 25F. Such workman, in order to avail the benefits of Section 25F, should, therefore, establish that he has right to continue in service and that the said service has been terminated without complying with the provisions of Section 25F. Whileso, when the first respondent has failed to establish his case before the Labour Court that he has entered into the service of the petitioner's corporation under a valid contract of service by producing a minimum acceptable documents, like, appointment order, I.D. card, pay slip or any other communication between the petitioner's corporation and the first respondent, he cannot deny the fact that he was engaged on a stopgap arrangement for 10 days to meet the festival rush in their showroom as claimed by the petitioner's Corporation. 11. Therefore, since no such finding has been given by the Labour Court, I am of the considered view that the award challenged in the present writ petition by the petitioner's corporation is liable to be set aside and further I am of the view that the first respondent should also be given another chance to reappreciate his case before the Labour Court. Accordingly, the matter is remanded to https://hcservices.ecourts.gov.in/hcservices/ the Principal Labour Court with a direction to take up the matter and dispose of the same in accordance with law within a period of three months from the date of receipt of a copy of this order, since the matter is being a old one, pending since 2002. 12. With the aforesaid direction, the present writ petition is allowed by setting aside the award passed by the second respondent- Principal Labour Court, Chennai. No Costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar rkm To 1.The Principal Labour Court, City Civil Court Buildings, High Court Campus, Chennai - 600 104. 2.The Section Officer, V.R.Section High Court, Madras-104. 1 cc to Mr.N.Jyothi , Advocate, Sr.No.41108 1 cc to Mr.K.P.Chandrasekaran , Advocate, Sr.No.41189 W.P.No.12964/2003 gr(co) pmk.3.8.2011 https://hcservices.ecourts.gov.in/hcservices/