IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 02-12-2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.653 of 2003 The Management of State Express Transport Corporation (Tamilnadu Division-I) Limited, Pallavan Salai, Chennai. .. Petitioner. Versus 1.The Presiding Officer, Labour Court, Tirunelveli. 2.S.Lazar .. Respondents. Prayer: Petition filed seeking for a writ of Certiorari, to call for the records of the Presiding Officer, Labour Court, Tirunelveli, the first respondent herein, passed in I.D.No.71 of 1993, dated 28.2.2001, and to quash the same. For Petitioner : Mr.S.Sathiamurthi For Respondent : No Appearance O R D E R Heard the learned counsel appearing for the petitioner. 2. This writ petition has been filed by the management of the petitioner Corporation, challenging the award of the Labour Court, dated 28.2.2001, made in I.D.No.71 of 1993. 3. It has been stated that the second respondent was working as a Driver in the petitioner corporation, on daily wages, with effect from 4.4.91, after having undergone training for a period of two months. His appointment was purely temporary and casual in nature. He was paid wages for the work done by him. When the second respondent was driving the bus from Marthandam to Tiruchirappalli, on 17.11.91, he had dashed the bus against a tamarind tree due to his rash and negligent driving. Two persons including the conductor had died due to the accident. Since the services of the second respondent was temporary in nature and since he had caused a fatal accident during his short period in https://hcservices.ecourts.gov.in/hcservices/ service, his services were terminated, on 29.1.92. Aggrieved by the order of termination from service issued by the petitioner Corporation, the second respondent workman had raised an industrial dispute before the first respondent Labour Court in I.D.No.71 of 1993. 4. Even though it was found that the second respondent had not completed 240 days of service in the petitioner Corporation, the first respondent Labour Court had erroneously held that his termination from service is not justified. The Labour Court has also held that the second respondent should have been given an opportunity before his services were terminated. The Labour Court had ignored the fact that the second respondent had caused a fatal accident, due to his rash and negligent driving. The Labour Court had passed an award, without properly appreciating the evidence on record, holding that the second respondent is entitled to reinstatement in service, without backwages and without continuity of service. 5. The learned counsel appearing on behalf of the petitioner Corporation had submitted that the award of the Labour Court, dated 28.2.2001, made in I.D.No.71 of 1993, is against law, weight of evidence and the probabilities of the case. The Labour Court had failed to note that the second respondent was working only as a casual employee and therefore, the Standing Orders are not applicable to him. The Labour Court had also ignored the fact that the second respondent had caused a fatal accident during his short span of service and therefore, it was not safe to continue him in service as a Driver in the petitioner Corporation. The Labour Court had wrongly relied on Ex.W.6 showing that the second respondent had been acquitted in the criminal case, since such an acquittal is not a conclusive proof that the second respondent is not responsible for the accident. Once the first respondent Labour Court had accepted the fact that the first respondent had caused the accident, before he had completed 240 days in service, it should have come to the conclusion that there was no need to give an opportunity to the first respondent before his services were terminated. Further, the second respondent could not be construed to be a workman, under the provisions of the Industrial Disputes Act, 1947, and therefore, Section 25-F of the said Act, would not be applicable to him. 6. The learned counsel appearing on behalf of the petitioner Corporation had relied on a recent decision of this Court in The Management of Tamilnadu State Transport Corporation (Coimbatore Division-I) Vs. The Presiding Officer and another (CDJ 2006 MHC 2331), rendered under similar facts and circumstances, wherein, the award of the Labour Court, reinstating the employee in service, with backwages, had been set aside. https://hcservices.ecourts.gov.in/hcservices/ 7. No counter affidavit has been filed on behalf of the second respondent and there is no appearance on behalf of the second respondent employee. 8. In view of the contentions raised on behalf of the petitioner Corporation and on a perusal of records produced, this Court is of the considered view that the award of the first respondent Labour Court, dated 28.2.2001, made, in I.D.No.71 of 1993, is not sustainable in the eye of law. Even though the first respondent Labour Court had found that the second respondent had not worked for 240 days during the year when he was in service under the petitioner Corporation, it had come to the erroneous conclusion that the industrial dispute raised by the second respondent was maintainable and that the second respondent would be entitled to reinstatement in the service of the petitioner Corporation. 9. The first respondent Labour Court had come to the conclusion that the second respondent could have caused the accident due to the family circumstances prevailing at that time and due to the compulsion of the management of the petitioner Corporation, compelling him to drive the bus on the day of the incident. Further, the first respondent Labour Court had relied on the certificate in which it was stated that the second respondent had successfully completed two months of training in driving. Further, the second respondent had been acquitted in the criminal case filed against him. 10. The Labour Court had also held that there was no investigation or report, with regard to the mechanical failure of the vehicle, which was one of the claims of the second respondent. Further, the Labour Court had held that the second respondent ought to have been issued with the charge memo and a show cause notice before he was terminated from service. Based on the above said reasons the Labour Court had come to the conclusion that the second respondent had been illegally terminated from the service of the petitioner Corporation and therefore, it had passed the award, dated 28.2.2001, reinstating the second respondent in service, in the petitioner Corporation. 11. However, the first respondent Labour Court had failed to consider the fact that the second respondent had not completed 240 days in service, to be qualified to invoke the provisions relating to `retrenchment' of a workman, under Sections 25-B and 25-F of the Industrial Dispute Act, 1947. It is seen from the decisions of the Supreme Court in Manager, Reserve Bank of India Bangalore Vs. S.Mani and others (2005(5) SCC 100) and R.M.Yellatti Vs. Assistant Executive Engineer (2006(1) SCC 106), https://hcservices.ecourts.gov.in/hcservices/ that 240 days of continuous service by a workman does not by itself give rise to a claim of permanency and that the onus is on the workman to prove, by cogent oral, as well as documentary evidence, that he has been in continuous service for 240 days or more, in a given year. Accordingly, all the other reasons stated by the first respondent Labour Court, as noted above, cannot be relied on to sustain its award, reinstating the second respondent in service. In such view of the matter, the award of the first respondent Labour Court, dated 28.2.2001, made in I.D.No.71 of 1993, is liable to be set aside. Hence, it is set aside. Accordingly, the writ petition stands allowed. No costs. csh Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Presiding Officer, Labour Court, Tirunelveli. + 1 cc to Mr. S. Sathiamurthi, Advocate SR No. 67643 W.P.No.653 of 2003 KM(CO) SR/30.12.2008 https://hcservices.ecourts.gov.in/hcservices/