IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 9..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 9300 of 1998 and W.M.P. No. 14249 of 1998 and W.M.P. No. 7263 of 1999 Tamil Nadu State Transport Corporation Rep. by its Managing Director Formerly known as Nesamony Transport Corporation Madurai Division – III Nagercoil .. Petitioner vs. 1. N. John Henri Raj 2. Presiding Officer Labour Court Tirunelveli .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the second respondent relating to order dated 23.12.1996 passed in I.D. No. 146 of 1992 and quash the same. For Petitioner : Mrs. Rita Chandrasekar for Mr. Jayesh B. Dolia For Respondent 1: Mr. K.S. Kumar O R D E R Heard the arguments of the learned counsel for the parties and perused the records. 2. This writ petition is directed against the Award of the second respondent Labour Court dated 23.12.1996 made in I.D. No. 146 of 1992. 3. The petitioner is the Management. Parties in this writ petition are referred to as the Management and workman respectively. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief facts leading to the industrial dispute are as follows: The first respondent workman was appointed as a security guard w.e.f. 13.11.1987 and was posted at the Thoduvatty Depot. It was stated that the workman was refused employment from 27.6.1988 and he raised a dispute before the Assistant Commissioner of Labour, Nagercoil. The said dispute was taken on file by the second respondent Labour Court as I.D. No. 146 of 1992. The workman filed 13 documents and they were marked as Exs. W.1 to W.13. The Management filed the enquiry proceedings and it was marked as Ex. M.1 series. Both sides let in oral evidence. The Labour Court, on an analysis of the evidence (both oral and documentary) passed the Award dated 23.12.1996 impugned in this writ petition. By the impugned Award, the first respondent was directed to be reinstated with continuity of service, full backwages and all other attendant benefits. 5. Pending the writ petition, this Court granted an interim stay on 09.7.1998. Subsequently, the stay was modified and the Management was directed to deposit a sum of Rs.1,50,000/- to the credit of I.D. No. 146 of 1992 and out of which, Rs.25,000/- was directed to be paid to the workman and the balance amount was to be invested in a Nationalised Bank. The Management was also directed to pay the workman a sum of Rs.550/- every month from 01.9.1999 pending disposal of the writ petition. 6. Mrs. Rita Chandrasekar, learned counsel appearing for the Management, submitted that the approach of the Labour Court was improper and the workman was engaged only on casual basis as a watchman and after 31.5.1988, his services were not utilised as there was no work. His employment from 20.11.1987 to 31.12.1987 is a different spell of employment. In the second spell, he was stopped from work on 31.5.1988. he also filed a Civil Suit before the District Munsif Court, Kuzhithurai in O.S. 806 of 1988 and the same was dismissed. The Labour Court was wrong in coming to the conclusion that during the period from 20.11.1987 to 31.5.1988 (even if the workman's employment is accepted up to 27.6.1988) that too, within a period of eight months, he could have worked for 258 days. In fact, the Labour Court itself had stated that the period from 20.11.1987 to 31.12.1987 was taken as double duty. Such a calculation is not coming within the definition provided under Section 25B of the Industrial Disputes Act, 1947. 7. It is fairly admitted that by the learned counsel for the workman that only if the double duty is taken as two days of work, the workman would have completed 240 days of actual employment. The learned counsel for the workman relied upon an https://hcservices.ecourts.gov.in/hcservices/ unreported judgment of the Division Bench of this Court in W.A. No. 1569 of 2002 [C. Vijayakumaran v. The Tamil Nadu State Transport Corporation (Madurai Division – III) Ltd.], disposed on 27.6.2007. In that case, the Division Bench dealt with a case where the Court did not proceed on the basis of any adverse inference regarding the number of days worked but the service was calculated on the basis of the actual evidence adduced by the parties. 8. In the present case, the Labour Court came to the conclusion that the total number of 258 days includes double duties performed by the workman for which there is no statutory sanction available under the I.D. Act. For the second duty performed on the same day, at the maximum the workman was eligible for Overtime Allowance only and it cannot be construed as two working days so as to come within the purview of Chapter V-A of the I.D. Act. Once it is held that the workman had not completed 240 days within a period of 12 months, then it is axiomatic that the labour Court cannot grant any relief to the workman. 9. In this context, it is necessary to refer to the recent decision of Supreme Court in G.M., B.S.N.L. v. Mahesh Chand [2008 AIR SCW 1521]. The following passages found in paragraphs 5 and 11 may be usefully reproduced:- Para 5: "In a large number of cases the position of law relating to the onus to be discharged has been delineated. In Range Forest Officer v. S.T. Hadimani, [(2002) 3 SCC 25], it was held as follows: "2. In the instant case, dispute was referred to the Labour Court that the respondent had worked for 240 days and his service had been terminated without paying him any retrenchment compensation. The appellant herein did not accept this and contended that the respondent had not worked for 240 days. The Tribunal vide its award dated 10-8- 1998 came to the conclusion that the service had been terminated without giving retrenchment compensation. In arriving at the conclusion that the respondent had worked for 240 days, the Tribunal stated that the burden was on the management to show that there was justification in termination of the service and that the affidavit of the workman was sufficient to prove that he had worked for 240 days in a year. https://hcservices.ecourts.gov.in/hcservices/ 3. For the view we are taking, it is not necessary to go into the question as to whether the appellant is an “industry” or not, though reliance is placed on the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar.In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside. However, Mr Hegde appearing for the Department states that the State is really interested in getting the law settled and the respondent will be given an employment on compassionate grounds on the same terms as he was allegedly engaged prior to his termination, within two months from today." The said decision was followed in Essen Deinki v. Rajiv Kumar (2002 (8) SCC 400." Para 11: "Additionally, the specific stand of the appellants in the proceedings before the Tribunal and the High Court was that there is no sanctioned post of Safaiwala. There is no finding recorded by the Tribunal or the High Court that this stand is incorrect. Further, the respondent is also not consistent as to the period for which he worked. At one place he said he was working for five hours each day and other places he had stated that he was working for 8 hours. On the contrary, the appellant with reference to the nature of work done categorically stated that on a part-time basis depending on the need and requirement the respondent was engaged for 2 to 3 hours periodically. Interestingly, the work that was being done by the respondent was also being done by his wife and his mother. Sometimes, no order of https://hcservices.ecourts.gov.in/hcservices/ appointment was admittedly issued to the respondent. This fact is misconceived. In view of the aforesaid factual scenario, the award made by the Tribunal as affirmed by learned Single Judge and the Division Bench cannot be sustained and is set aside." 10. In view of the above facts and circumstances, the writ petition will stand allowed and the Award of the Labour Court in I.D. No. 146 of 1992 dated 23.12.1996 is set aside. No costs. However, the Management is precluded from making any recoveries from the amount paid to the workman already by way of interim orders of this Court. But the Management is at liberty to withdraw the balance amount lying in deposit with the Labour Court. Connected Miscellaneous Petitions are closed. gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To Presiding Officer Labour Court Tirunelveli 1 cc to Mr.K.S.Kumar, Advocate, SR.27923 1 cc to M/s.Jayesh B.Dolia, Advocate, SR.27580 gb (co) dv/17.6. W.P. No. 9300 of 1998 https://hcservices.ecourts.gov.in/hcservices/