Madras High Court
S.K.Venkatesan vs The Presiding Officer on 19 April, 2011
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.9226 of 2003 S.K.Venkatesan .. Petitioner Vs 1.The Presiding Officer, Labour Court, Vellore. 2.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Section, 75th Cross Street, Gandhi Nagar, Vellore - 7 .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records from the files of the 1st Respondent in I.D.No.203 of 1996 and quash its impugned common Award made therein dated 24.06.2002 insofar as the Petitioner is concerned inasmuch as the 1st Respondent has denied the claim of the Petitioner for reinstatement in service, with continuity of service, with back wages and with all other attendant benefits and to award costs. For Petitioner : Mr.K.M.Ramesh For 1st Respondent : Labour Court For 2nd Respondent : Mrs.Sudharshanasundar ORDER
The Petitioner has filed the present Writ Petition in seeking the relief of Writ of Certiorari in calling for the records from the file of the 1st Respondent/Labour Court, Vellore in I.D.No.203 of 1996 and to quash the Award dated 24.06.2002 insofar as it relates to him.
2.The 1st Respondent/Labour Court, Vellore, while passing the Award dated 24.06.2002 in I.D.No.203 of 1996, has, among other things, observed that 'a perusal of Ex.W.10 shows that the Petitioner has worked for 16 days till 31.7.88, 31 days till 31.10.88, upto 25.9.908 days and in all for 3 years from the year 1988 to 1990 he has only worked for 95 days, though in the written arguments it is stated that he has worked for 569 days but it is not to be seen that he has worked for 569 days and in view of the fact the Petitioner in a year has not worked for 240 days and when he has admitted that he being a Daily Coolie it cannot be construed that refusal of work to him is an unlawful one and as such, he cannot be ordered to be reinstated into service and consequently, passed an Award thereto.'
3.The Writ Petitioner in I.D.No.203 of 1996 (in claim petition) has averred that he has been appointed and posted as Valve Operator and Night Watchman on 27.6.88 in the 2nd Respondent/Tamil Nadu Water and Drainage Board Office at Desur at Thellar Co-operative Drinking Water scheme on a daily wage of Rs.14.25 paise. On 6.12.1988 he has been appointed as a Daily Wage Coolie and his salary has been paid once in a month. He has been put in-charge of Thirukoil, Pavathampoondi, Panambattu and Desur. Further, on 24.6.89 his daily wage from Rs.14.25 has been increased to Rs.22/- and the same has been paid in lumpsum, per month.
4.The case of the Writ Petitioner is that on 05.9.90 he has been transferred from Desur to Cheyyar Co-operative Drinking Water Scheme Station and he has been working till 28.9.90. On 28.9.90 he has been again transferred to the place at Desur, Thellar Co-operative Drinking Water Scheme and has been working there till 26.12.1990. On 26.12.1990 he has been removed from service by the 2ndRespondent without any reason or any notice. His termination is against the principles of natural justice. He has not been provided with an opportunity prior to his removal from service. There has been no charge or defect on his part in doing his duties. Hence, the Petitioner has sought for his non-employment as an illegal one and to reinstatement him into service granting backwages and other incidental benefits.
5.The 2nd Respondent/T.W.A.D. Board, in its counter to I.D.No.203 of 1996, has, among other things, stated that the Petitioner has not been recruited through Employment Exchange and that the Respondent is not empowered to appoint him in their division. Also, it is the stand of the 2nd Respondent/T.W.A.D. Board that the Petitioner has been appointed on daily wages whenever required and moreover, the Cheyyar division has been closed and therefore, it is not in a position to absorb him. That apart, after his removal in the year 1990, he filed I.D.No.203 of 1996 after an interval of six years. It is barred by Limitation.
6.The Learned Counsel for the Petitioner submits that the Petitioner joined in the 2nd Respondent Office as Valve Operator and Night Watchman on 27.6.88 in Desur at Vellore Co-operative Drinking Water Scheme as a Non Muster Roll Employee. His daily wage of Rs.14.25 has been paid once in a month. He has been working continuously without any break. On 16.12.88 he has been appointed as a Daily Coolie and placed in charge of Thirukoil, Pavathampoondi, Panambattu and Desur. From 24.6.89 his daily wage has been increased to Rs.22/-. On 5.9.90 he has been transferred from Desur to Cheyyar Co-operative Drinking Water Scheme Station and has been serving there till 28.9.90. On 28.9.90 he has been re-transferred from Cheyyar to Desur at Thellar Co-operative Drinking Water Scheme and worked there upto 26.12.90.
7.According to the Petitioner, he has been orally terminated from service by the 2nd Respondent on 26.12.90. The Learned Counsel for the Petitioner contends that the award of the 1st Respondent/Labour Court suffers from non-consideration of relevant materials and facts.
8.The Learned Counsel for the Petitioner vehemently projects an argument that the 1st Respondent/Labour Court has not appreciated Ex.W.10 and Ex.W.11 in a proper and real perspective and the said exhibits clinchingly point out that the Petitioner has worked for 621 days for the period from 1.9.88 to 25.9.90 and for more than 240 days during the preceding calendar year prior to the date of his removal.
9.The core contention advanced by the Learned Counsel for the Petitioner is that the Petitioner has worked for more than 240 days prior to the date of his termination and consequently, he is entitled to get the benefits as per Section 25-F of the Industrial Disputes Act, 1947.
10.That apart, the Learned Counsel for the Petitioner contends that the act of the 2nd Respondent/T.W.A.D. Board in not regularising the services of the Petitioner and other workmen as per the provisions of Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 is an illegal one.
11.Also, the action of the 2nd Respondent in unjustly terminating the services of the Petitioner is in violation of the principles of Natural Justice.
12.In this connection, it is useful to refer to the evidence of W.W.1 (Petitioner in I.D.No.206/1996), W.W.2 (S.K.Venkatesan-Petitioner in I.D.No.203/1996) and the evidence of M.W.1 (Junior Engineer of 2nd Respondent/T.W.A.D. Board) for a fuller and better appreciation of the controversies involved in the respective industrial disputes.
13.W.W.1 (Petitioner in I.D.No.206/1996), in his evidence [adduced on behalf of other Petitioners in I.D.Nos.203, 204, 205, 207, 213, 233 of 1996), has deposed that the Petitioner in the aforesaid industrial disputes have worked in the Desur Thellar Joint Drinking Water Scheme and the Scheme Headquarters is situated at Vellore Gandhi Nagar and they have all worked as Valve Operator and Night Watchman.
14.It is the further evidence of W.W.1 that he has been appointed on 22.8.1988 and on 6.12.88 place of work where he has to work has been allotted to him and the said order is Ex.W.1 and on 14.6.89 he has been transferred and the Transfer Order is Ex.W.2 and on 24.6.89 his nature of work [viz., opening the valve and closing the valve] has been issued to him and the said order is Ex.W.3 and Ex.W.4 is the Transfer Order issued to him on 5.9.90 and another Transfer Order-Ex.W.5 issued to him is dated 28.9.90 and the Ex.W.6-Certificate has been issued to him by the Junior Engineer for the Valve Operator Job performed by him and that the Junior Engineer has issued the Job Certificate to him for his good work viz., Ex.W.7.
15.The evidence of W.W.1 is to the effect that when he joined the job originally he has been paid on daily wage of Rs.14.25 paise and that he has been paid the monthly salary and from 29.6.90 daily wage of Rs.22/- has been calculated and the same has been paid monthly to him.
16.The substance of evidence of W.W.1 is that he along with other workers [Petitioners who raised individual industrial disputes] have worked continuously for 480 days and therefore, they have to be regularised and pray for the reinstatement with backwages and also that totally 67 persons have worked and 7 workers have been made permanent and also they have been given the promotion.
17.W.W.1, in his cross examination, has stated that they have not been appointed through Employment Exchange and that they have been taken in as Daily Coolies by the Vandavasi Water Supply and Drainage Board and at that time, one Sivasankaran has been serving as Executive Engineer and that the Desur Thellar Joint Drinking Water Supply Scheme has been completed and for that scheme work they have been appointed and after the closure of the said scheme, the Vandavasi Water Supply and Drainage Scheme Board has been closed and one section of their workers have been transferred to Chetpet and another set of persons have been transferred to Cheyyar and lastly they have served at Cheyyar and Chetpet division and these divisions are presently there or presently in existence and they have not added the companies.
18.W.W.2-S.K.Venkatesan [Petitioner in I.D.No.203/1996], in his evidence, has deposed [before the 1st Respondent/Labour Court] to the effect that he and others have been removed from service on 26.12.90 and that they have been given the petition through their Union before the Inspector of Labour after the removal and the Inspector of Labour has passed an order Ex.W.14 dated 10.10.91 that they should be reinstated into service and that the Managing Director has given an order that if a person has worked for 480 days he can be made permanent and accordingly, 71 persons have been made permanent and the further, the details of date of appointment, number of days worked are mentioned in Ex.W.15-order of the 2nd Respondent/ Management to the workers dated 19.9.96.
19.W.W.2 in his cross examination has deposed that they obtained Ex.W.15-Order of the Management dated 19.9.96 through their workers Union and the original of Ex.W.15 has not been marked and also it is true to state that persons mentioned in Serial No.1, 2, 42 to 48 and 50 to 71 have been recruited through Employment Exchange and the persons who have been recruited through the Employment Exchange have passed in 10th Standard. It is also the evidence of W.W.2 that after 12.5.88 all appointments have been made through Employment Exchange office and the Vandavasi division presently has been included in the Cheyyar division.
20.It is the evidence of M.W.1 [Junior Engineer of the 2nd Respondent/T.W.A.D. Board] that he has not worked at the Vandavasi section and at that time when the Petitioners have filed the case before the Tribunal, he served as Junior Engineer at Chetpet Deputy Water and Drainage Board and that he served from 24.11.88 till 6.6.94 and that he does not know about the details of appointments of the Petitioners and that the Petitioners have worked as daily wages.
21.It is the further evidence of M.W.1 that their Board's Memorandum Order M.S.No.247 dated 9.10.90 is Ex.M.1 and for more than 7 seven days the Petitioners have not been appointed continuously and that they are appointing persons for all jobs through Employment Exchange.
22.M.W.1 in his cross examination, has stated that the details mentioned in Ex.W.2 [Transfer Order dated 14.6.89 issued to W.W.1 and other two workers] and Ex.W.3 [order dated 24.6.89 issued to W.W.1 and another worker] are true and that he does not know about Ex.W.10 [list of workers worked at Cheyyar office] and he does not know as to the number of days worked by the Petitioners which has been mentioned in Exs.W.9 to 13 and further, it is not correct to state that Ex.M.1 the Proceedings Order of the Appellant/Management bearing No.M.S.247 dated 9.10.96 will not bind the Petitioners.
23.In Ex.W.1-Work Distribution Order of the Junior Engineer Office, Chetpet, North Arcot District dated 6.12.88 the Petitioner's name (in I.D.No.203 of 1996) is mentioned in Serial No.4. Ex.W.1-Work Distribution order of the Management refers to the Desur, Thellar and other 87 tenements in regard to the Drinking Water Maintenance Scheme wherein the jobs/works have been distributed to the Watchman and Assistants.
24.Ex.W.8 is the xerox copy of the letter dated 5.9.90 of the Petitioner addressed to the 2nd Respondent/Administrative Engineer whereby the Petitioner has expressed his desire to work in Cheyyar Sub Division of the Desur Thellar Joint Drinking Water Scheme. In the said Ex.W.8, there is an endorsement made by the 2nd Respondent's Junior Engineer that the Petitioner may be sent to Cheyyar Sub Division.
25.In Ex.W.9-Copy of Muster Roll of Chetpet office of the 2nd Respondent, the Assistant Executive Engineer of T.W.A.D. Board, R.W.S. Sub Division, Chetpet has signed and also attested the same. In the first page of Ex.W.9 the Petitioner is reported to have worked for 474 days.
26.In Ex.W.10-Statement showing the details of N.M.R. workers under the control of 2nd Respondent/Office Sub Division, Cheyyar signed by the Assistant Executive Engineer for the period from 16.7.88 till 25.12.1990. In the said Ex.W.10-Statement, the Petitioner-S.K.Venkatesan is reported to have worked for 16 days for the period from 16.7.88 to 31.7.88 and for the period from 1.10.88 to 31.10.88 he has worked for 31 days and subsequently for the period from 26.8.90 to 25.9.90 he has worked for 8 days and aggregating in all worked for 95 days [but actual calculation comes to 55 days as per Ex.W.10]. If one has to go by the version of Petitioner Ex.W.9 and Ex.W.10, then, the Petitioner out turn of work comes to 529 days. But in reality, a perusal of Ex.W.10 shows that the Petitioner has only worked for 55 days in all as referred to supra.
27.In Ex.W.14-Communication dated 10.10.91 the Inspector of Labour, Tiruvannamalai addressed to the Superintending Engineer of the Tamil Nadu Water Supply and Drainage Board, Vellore and to the Chairman of the Tamil Nadu Water Supply and Drainage Board, Vellore, has, among other things, stated in paragraph 4 that 'the Administrative Engineer of the 2nd Respondent Office has stated during the enquiry on 16.9.91 that he is anticipating the order of the Managing Director of the T.W.A.D. Board as regards the permanency of the individuals mentioned therein and increased in salary to be paid by the Board to them etc.
28.In Ex.W.14-Communication of the Inspector of Labour, Tiruvannamalai, the Petitioner [S.K.Venkatesan in I.D.No.203/1996] is stated to have joined as Night Watchman on 27.6.88. In Ex.W.14 in paragraph 3 it is made mention of that the Petitioner and 14 others have themselves relieved from service etc.
29.In Ex.W.15 Communication of the Managing Director of the T.W.A.D. Board, Chennai dated 19.9.96 it is among other things mentioned that 386 workers as per the list have been directed to be made permanent if they have completed 480 days of work and that proper salary will have to be given to them and annual notional salary increase will have to be given and their salary in the minimum scale of pay will have to be refixed from 1.8.96. A perusal of Ex.W.15 Managing Director's Proceedings dated 19.9.96 together with the List of N.M.R. Personnel of Northern Region indicates that only 78 names are found. Significantly, in Ex.W.15 List of N.M.R.s ranging from Serial No.1 to 78 the Petitioner's name [I.D.No.203/1996] does not find a place. Further, the Appointing Authority viz., Superintending Engineers/ Administrative Engineers have been directed to regularise the time scale of pay of the daily wage workers who have been made permanent on completion of 480 days.
30.As per Ex.M.1-Board Proceedings Order M.S.No.247, dated 9.10.1990 of the Tamil Nadu Water Supply and Drainage Board, Secretariat, Madras-5 in paragraph vi, it is mentioned hereunder:
"that the Executive Engineers shall have powers to engage N.M.Rs only for such works which are not susceptible of measurements viz., for survey and levelling operations, for conducting geophysical, survey etc., for period not exceeding 7 days at a time; that for any special reasons, if the employment of N.M.Rs become necessary for more than 7 days for maintenance of Pilot water supply scheme etc., Prior approval of concerned Chief Engineers should be obtained for engaging N.M.Rs. that even in such cases, the employment of N.M.Rs. should not exceed more than 85 days and that any violation of these instructions shall be dealt with several by imposing Punishment of removal from service without exception."
31.In Ex.M.1-Communication of the Joint Director of the T.W.A.D. Board dated 9.10.90, in last paragraph, it is mentioned as follows:
"The Chief Engineers should collect the particulars of appointments made in violation of the Board's instruction with effect from 16.3.1974 and furnish to the Board the name of officers who were responsible for such irregular appointments. Action should also be taken immediately to discharge the Work Charged Establishment Personnel whose services are not required as well as those who were appointed after 31.12.1985."
32.In short, the T.W.A.D. Board has issued instructions as per Ex.M.1 dated 9.10.90 pertaining to the Appointment of Work charged Establishment/N.M.R. and in paragraph 2 of the said instructions, it is mentioned thus:
"The Board considered the question of stopping the appointment of Work Charged Establishment N.M.R. personnel as also the question of awarding without exception, exemplary punishment, to the extent of removal from service, to the officers who made such appointments or who authorised such appointments. The Board has approved the proposal."
33.At this stage, this Court worth recalls the decision of Hon'ble Supreme Court in Haryana State Electronics Development Corporation V. Mamni AIR 2006 Supreme Court 2427 at page 2428 wherein in paragraphs 12, 13, 14, 15 and 20, it is laid down as follows:
"12.However, indisputably, the respondent was appointed on an ad hoc basis. She, although qualified to hold the post of Junior Technician, when the advertisement had been issued for filling up the said post, did not apply therefor. The services of the respondent was terminated as far back as in the year 1992. Even if she is reinstated in her service on an ad hoc basis, her services cannot be regularized in view of a recent Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., [2006 (4) SCALE 197]. Furthermore, she had absented herself for a period of 19 days from 20.1.1992 to 7.2.1992 and for a period of 11 days from 17.2.1992 to 27.2.1992.
13.We, therefore, are of the view that in the peculiar facts and circumstances of this case, interests of justice would be sub-served if in the place of reinstatement with back wages, a lump sum amount is directed to be paid by way of compensation. This order is being passed keeping in view the fact that the respondent has not worked since 1992. The post on which she may have been working must have also been filled up.
14.It is wholly unlikely that respondent in the meantime had not been working anywhere else, since the respondent had not placed any material on record to show that she had not been working.
15.This Court in a number of decisions has categorically held that the relief of reinstatement with full back wages is not to be given automatically. Each case must be considered on its own merit.
....
20.In view of the settled legal position, as noticed hereinbefore, we modify the impugned order by directing that the respondent shall be compensated by payment of a sum of Rs.25,000/- instead of the order for reinstatement with back wages."
34.In the State of Rajasthan V. Sarjeet Singh and another (2006) 8 Supreme Court Cases 508 at page 510 in paragraph 7 to 9 it is observed as follows:
"7.Furthermore, Respondent No. 1 was appointed for a fixed period. His services might have continued but it appears that the same was to remain in force till the Scheme was completed.
8.We may in the aforementioned backdrop notice the definition of 'retrenchment' as contained in Section 2(oo)(bb) of the Industrial Disputes Act, which is in the following terms:
"2(oo) "Retrenchment" means termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
* * * (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein;.."
9.It is a case which attracts clause (bb) of Section 2(oo) of the Industrial Disputes Act."
35.Apart from the aforesaid decisions, this Court aptly points out the following Decisions:
(a)In Pramod Kumar Tiwari V. Hindustan Fertilizers Corporation Limited 1995-Vol.1-L.L.J.-192, it is held as follows:
"In the facts and circumstances of the case, the project could be said to be an industry within the meaning of Sec.2(j) of the Act, but was the impugned termination a retrenchment within the meaning of Sec.2(oo) attracting the provisions of Sec.25F of the Act. Termination of service of workman on transfer or closure of an undertaking is treated as "deemed retrenchment" after introduction of Sec.25FFF which provided that compensation shall be payable to workman in cases also of transfer of undertaking or closure, as if the workman had been retrenched. The result is termination due to transfer or closure of undertaking is treated as deemed retrenchment and to such deemed retrenchment provisions of Sec. 25FF & 25FFF, as the case may be, are attracted, but not the provisions of Sec.25F.
In the instant case the project is an undertaking. The provisions of Sec.25FFF are squarely attracted. In addition to notice pay, compensation at the rate of 15 days average pay for every completed year of continuous service or any part thereof in excess of six months, as provided in Sec.25F (b) read with Sec.25FFF, should have been paid to the petitioner on account of termination. We can direct payment of that money, but the termination in question being under Sec.25FFF was not invalid or inoperative on account of non-payment."
(b)In Shushil Kumar Pandey V. Director, Bal Vikas Seva Evam Pausht Ahar, Lucknow & others 1998-Vol.3-L.L.J.(Supp.)-140 it is held thus:
"Upon termination of his services as a junior Clerk on daily wage basis by the third respondent, the petitioner filed the present writ petition impugning the termination. The Court dismissed the writ petition. It observed the order of termination was on the basis of the conditions contained in the appointment letter according to which the petitioner's services could be terminated without prior notice. It was a temporary arrangement which ceased to be effective in terms of the conditions given in the appointment letter."
(c)In Haryana State F.C.C.W. Store Limited and another V. Ram Nivas and another 2002-II-L.L.J.-1153 the Hon'ble Supreme Court has held as follows:
"The Supreme Court observed that the engagement/appointment of the respondent-workmen was for a specific purpose and for a particular period. Their disengagement on the completion of the purpose and expiry of the period, was in terms of the contract of service and therefore not a 'retrenchment' within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947."
(d)In Nuclear Fuel Complex, Hyderabad V. K.Petna Reddy and others 2002 (2) L.L.N. 966, it is held, inter alia, that 'The contract labour engaged by a contractor for a particular period for a particular job are not "workmen" under Industrial Disputes Act and further that such an employment comes to an end automatically as soon as the time is over and the job is over and moreover, the disengagement of contract labour does not amount to retrenchment and does not attract S.25F of Industrial Disputes Act, 1947 and as such, they are not entitled to the absorption in the service of the company in respect of whose work, they were engaged by contractor.'
(e)In Batala Co-operative Sugar Mills Limited V. Sowaran Singh 2005 (6) Service Law Reporter 413 at page 414 in paragraph 4 to 8 the Hon'ble Supreme Court has laid down as follows:
"4.In support of the appeal, learned counsel for the appellant submitted that both the Labour Court and the High Court fell in grave error by acting on factually and legally erroneous premises. The definite stand of the appellant was that the workman was engaged on casual basis on daily wages for specific work and for specific period. Details in this regard were undisputedly filed. Therefore, the provisions of Section 2(oo)(bb) of the Act are clearly applicable. In addition, the onus was wrongly placed on the employer to prove that the workman had not worked for 240 days in 12 calendar months preceding the alleged date of termination. No material was placed on record by the workman to establish that the workman had offered himself for job after 12.2.1994. The award of the Labour Court does not speak of the requirement to maintain the muster roll. This point was taken up suo moto by the High Court without any opportunity to the appellant to have its say.
5.In response, learnd counsel for the respondent submitted that in the factual scenario as noticed by the Labour Court the award was made and the High Court has rightly refused to interfere with it.
6.We find that the High Court's judgment is unsustainable on more than one count. In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan and Ors., [1995] 5 SCC 653: [1995 (5) SLR 232 (SC)], it was observed as follows:
"4. It would thus be clear that the respondents were not working throughout the season. They worked during crushing seasons only. The respondents were taken into work for the season and consequent to closure of the season, they ceased to work.
5. The question is whether such a cessation would amount to retrenchment. Since it is only a seasonal work, the respondents cannot be said to have been retrenched in view of what is stated in clause (bb) of Section 2(oo) of the Act. Under these circumstances, we are of the opinion that the view taken by the Labour Court and the High Court is illegal. However, the appellant is directed to maintain a register for all workmen engaged during the seasons enumerated hereinbefore and when the new season starts the appellant should make a publication in neighbouring places in which the respondents normally live and if they would report for duty, the appellant would engage them in accordance with seniority and exigency of work.'' The position was re-iterated by a three-Judge Bench of this Court in Anil Bapurao Kanase v. Krishna Sahakari Sakhar Karkhana Ltd. and Anr., [1997] 10 SCC 599: [1997 (4) SLR 586 (SC)]. It was noted as follows:
"The learned counsel for the appellant contends that the judgment of the High Court of Bombay relied on in the impugned order dated 28.3.1995 in Writ Petition No. 488 of 1994 is perhaps not applicable. Since the appellant has worked for more than 180 days, he is to be treated as retrenched employee and if the procedure contemplated under Section 25-F of the Industrial Disputes Act, 1947 is applied, his retrenchment is illegal. We find no force in this contention. In Morinda Coop. Sugar Mills Ltd. v. Ram Kishan, in para 3, this Court has dealt with engagement of the seasonal workman in sugarcane crushing; in para 4 it is stated that it was not a case of retrenchment of the workman, but of closure of the factory after the crushing season was over. Accordingly, in para 5, it was held that it is not `retrenchment' within the meaning of Section 2(oo) of the Act. As a consequence the appellant is not entitled to retrenchment as per clause (bb) of Section 2(oo) of the Act. Since the present work is seasonal business, the principles of the Act have no application. However, this Court has directed that the respondent management should maintain a register and engage the workmen when the season starts in the succedding years in the order of seniority. Until all the employees whose names appear in the list are engaged in addition to the employees who are already working, the management should not go in for fresh engagement of new workmen. It would be incumbent upon the respondent management to adopt such procedure as is enumerated above.'' Section 2 (oo) (bb) reads as follows:
"(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein''.
The materials on record clearly establish that the engagement of the workman was for specific period and specific work.
7.In view of the position as highlighted in Morinda Coop. Sugar Mills and Anil Bapurao's cases (supra), the relief granted to the workman by the Labour Court and the High Court cannot be maintained.
8.So far as the question of onus regarding working for more than 240 days is concerned, as observed by this court in Range Forest Officer v. S.T. Hadimani, [2002] 3 SCC 25 : [2002 (2) SLR 401 (SC)] the onus is on the workman. It was noted in the said judgment 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 no 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.
"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, [2001] (9) SCC 713. 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 so 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 form today.''
(f)The termination of a workman appointed for a fixed period will not amount to retrenchment even if such a workman has continued to work after stipulated period in anticipation of the sanctioned post as per decision Ram Prasad V. State of Rajesthan 1993-1-L.L.N.-601.
(g)In Pradeed Kumar V. The Secretary, Ganga Nagar Sugar Mills Limited 1994-1-L.L.J.-1139, it is held that 'the non-payment of retrenchment compensation will not violate the provision of the Section since such a termination of a adhoc/temporary employee due to closure of establishment does not amount to retrenchment.'
(h)A termination of a contractual appointment though made thrice in 18 months, will not be an illegal retrenchment as per decision Municipal Council Samarala V. Sukhwinder Kaur 2006-6-SCC-516.
(i)The termination of a workman who has worked on a project for more than 4 years will be legal if the management fails to pay the retrenchment compensation at the time of termination as per decision Gujarat State Construction Corporation V. Indravadan Ambalal Soni 2003 (99) FLR 850 (Guj HC).
(j)The non-renewal of contract of an employee who was engaged on a daily wage basis will not amount to retrenchment as per decision Surendra Kumar V. Labour Court Uttarpradesh, Agra and another 2005 LLR 84 (All HC).
(k)If a workman has not rendered continuous service for 240 days, the provisions of Section 25H of the Industrial Disputes Act providing for the right of re-employment to a retrenched workman will not be attracted as per decision State of Gujarat V. Ramesh Mopabhai Rathod 2004 LLR 255 (Guj HC).
(l)If an employee has not worked for 240 days, his termination will not amount to retrenchment as per decision Har Nath Singh Yadav V. The Administration/Chairman Provincial Cooperative Federation, Lucknow and others 2004 LLR 741 (All HC).
(m)A termination of a workman on completion of project will not be a retrenchment as per decision Telecom District Manager and others V. A.A. Angali and others 2000 LLR 219 (Ker HC).
(n)The Labour Court can substitute the relief with compensation when retrenchment is invalid as per decision Lala Ram V. State of Rajesthan and another 2001 LLR 802 (Raj HC).
36.It is to be pointed out that the Writ Petitioner/Petitioner (in I.D.No.203/1996) has taken a plea that he has worked for more than 240 days prior to the date of his termination and as such, he is entitled to the protection as per Section 25F of the Industrial Disputes Act, 1947.
37.The 2nd Respondent/T.W.A.D. Board, in its counter in I.D.No.203 of 1996, has, inter alia, averred that 'its office commenced from 1.5.95 onwards and that it is not in a possession of the Petitioners file etc.'
38.It is to be borne in mind that the proof of establishing a fact is on the person who substantially asserts the affirmative of the subject matter in issue and not upon the individual who denies the same. In short, the individual who asserts a particular fact as to prove the same by means of the ingredients of Sections 101 and 102 of the Indian Evidence Act. Ordinarily, the persons in whom rests the onus of proving any of the issues has the right to begin. Further, Section 102 of the Indian Evidence Act provides a test in regard to the question of whom does the burden of proof lie, i.e. that the burden lies on the person who will fail if no evidence has been adduced on either side.
39.Suffice it for this Court to make a significant mention that the burdens of 'proof' and 'presumptions' will have to be considered together. Section 102 of the Indian Evidence Act provides a test for ascertaining on whom the burden of proof lies. The term 'burden of proof' as a matter of law and pleading means it is establishing a case. This rests on the party whether Plaintiff/Petitioner or Defendant/ Respondent who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings, or their equivalent, and it is settled as a question of law, remaining unchanged under any circumstances whatsoever and this is enshrined under Section 101 of the Indian Evidence Act. The burden of proof as a matter of adducing evidence in this sense is not static and may shift constantly, throughout the trial, according to one scale of evidence or the other preponderates as per decision Pickup V. Thames Insurance Company, 3 QBD 594, 600; Radhakrishun V. Jagsahu, 47 MLJ 329 = 80 IC 791 PC.
40.As per Section 106 of the Indian Evidence Act, when a fact to be proved (whether positive or negative) is peculiarly within the knowledge of a party, it is for him to prove it. The static onus falling under Section 101 or 102 of the Indian Evidence Act, cannot be shifted by the use of Section 106 of the Indian Evidence Act, though the certain onus of proving facts and circumstances lie specially within the knowledge of the person. Also, the term 'especially' refers to facts that which exceptionally or preeminently within ones knowledge. As a matter of fact, the knowledge ought to be in the nature of something peculiar.
41.As far as the present case is concerned, as per Ex.W.9 xerox copy of Muster Roll of the 2nd Respondent's Chetpet Office, the Petitioner is reported to have worked for 474 days. On behalf of the 2nd Respondent's office, Ex.W.9 there is a reference to the xerox copy of Register . 1 No.(Page No 1 to 84) and xerox of m books page No. 1) 484 A, 2) 490 A, 3) 737 A, 4) 722 A Total Nos.4. In fact, the Ex.W.9 the xerox copy of Muster Roll of the 2nd Respondent's Chetpet office has been attested by Assistant Executive Engineer of T.W.A.D. Board, Chetpet 606 801. Ex.W.9 the xerox copy of Muster Roll of the 2nd Respondent's office, Chetpet has been signed by one V.Arunachalam, Assistant Executive Engineer, T.W.A.D. Board, R.W.S. Sub Division, Chetpet. However, before the Tribunal in I.D.No.203 of 1996 one R.Ganaprakasam, Junior Engineer has been examined as M.W.1 on behalf of the 2nd Respondent Office.
42.M.W.1, in his evidence, has categorically stated that he does not know about the appointment of the Petitioners and he does not know about the details like the date of appointment, as to who appointed the Petitioners. Before the Tribunal, the person who signed Ex.W.9 viz., V.Arunachalam, Assistant Executive Engineer of T.W.A.D. Board, R.W.S. Chetpet, has not been examined as a witness. He has only forwarded the xerox copy of registers through his letter dated 28.11.2000 addressed to the 1st Respondent/Labour Court, Vellore.
43.The evidence of M.W.1 though he is a Junior Engineer of the 2nd Respondent office, he is not helpful to the 2nd Respondent/ Management. He has deposed in his evidence that he has not served in the Vandavasi Section. Though he has worked at the Chetpet Deputy Water Drainage Board Office as Junior Engineer from 24.11.1988 to 6.6.94 yet, because of his evidence that he does not know about the appointment details of the Petitioners. Therefore, this Court is of the considered view that his evidence is not any way heightening the case of the 2nd Respondent's Office, T.W.A.D. Board. Equally, on the side of the Writ Petitioner, though a plea is taken that the Petitioner has worked for more than 240 days prior to the date of his termination, the same has not been proved to the subjective satisfaction of this Court.
44.On behalf of the Petitioner, a Chart has been filed before this Court for the period from 26.3.1989 to 25.12.1990 that the Petitioner has worked for 511 days. But this fact is denied or disputed by the 2nd Respondent.
45.Indeed, the burden of proof is not static. The burden of proof initially lies on the Petitioner to show that he has worked for more than 240 days prior to the date of his termination so as to claim benefits as per the relevant provisions of the Industrial Disputes Act only when the Petitioner has discharged his burden in establishing his case, then, the burden immediately shifts to the 2nd Respondent/ Management to rebut the stand taken by the Petitioner. Unfortunately, in the present case on hand, the evidence adduced on the side of the Petitioner W.W.1 and W.W.2 as well as on the side of the 2nd Respondent/ Management as M.W.1 are scrappy jumpy and they are not sufficient so as to enable this Court to arrive at a definite conclusion in resolving the controversies/disputes involved between the parties in the Industrial Dispute in I.D.No.206 of 1996.
46.In the present case, whether the Petitioner's removal from service on 26.12.1990, as alleged by him, is a retrenchment under Section 2(oo) of the Industrial Act or it is a termination from service or it is a discharge simplicitor?, such a question has not been adverted to by the 1st Respondent/Labour Court, Vellore. Also, the 1st Respondent/ Labour Court, Vellore has not adverted to the material fact whether the Petitioner is entitled to claim the relief of reinstatement when he has been engaged in a daily wage basis in regard to the Cheyyar Division work. Moreover, the 1st Respondent/Labour Court has not delve into the issue of whether the Petitioner is entitled to project I.D.No.203 of 1996 after a lapse of 6 years when he has been perpetually removed on 26.12.1990. Even according to him, the other aspect whether filing of I.D.No.203 of 1996 after lapse of 6 years from the date of his perpetual removal from office on 26.12.1990 is a sterile one in the eye of law, notwithstanding the fact that the Industrial Disputes Act prescribes no limitation for filing of a claim projected by a party.
47.Therefore, this Court, without going into merits of the matter opines that an opportunity to both sides will have to be provided to prove their case based on Equity, Fair Play, Good conscience and even as a matter of prudence, remits the matter back to the 1st Respondent/ Labour Court, Vellore the I.D.No.203 of 1996 for fresh consideration in a threadbare fashion, by raising the following issues for adjudication:
(i)Whether the Petitioner's removal from service on 26.12.1990 is a Retrenchment as per Section 2(oo) of the Industrial Disputes Act or it is a case of Termination or it is a case of Discharge Simpliciter?
(ii)Whether the Petitioner has worked for more than 240 days prior to the date of his termination? If so, whether he is entitled to claim the benefits of Section 25-F of the Industrial Disputes Act?
(iii)Whether the I.D. filed by the Petitioner is a sterile claim?
48.It is not out of place for this Court to make a significant mention that the Hon'ble Supreme Court in Union of India V. Durairaj 2011 AIR SCW 873 at page 878 in paragraph 14, has laid down hereunder:
"A Court or Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. If it is with reference to a 'dead' or 'stale' issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches." and further observed that "We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches."
Also, in the aforesaid decision, at page 879 in paragraph 19, it is inter alia observed that '... Sympathy cannot erase the clear principles of law and findings of fact, or the effect of delay and laches.'
49.In the circumstances, to meet the ends of justice and also to prevent an aberration of justice, since the Industrial Dispute is of the year 1996, this Court directs the 1st Respondent/Labour Court, Vellore to deal with the I.D.No.203 of 1996 afresh, by answering the points that arise for rumination, as referred to supra, by permitting the parties to adduce further, oral evidence by examining the additional witnesses and also to adduce documentary evidence if the parties so desire/advised. In any event, the industrial dispute is to be disposed of in a dispassionate manner uninfluenced with any of the observations made by this Court in this Writ Petition within a period of six months from the date of receipt of copy of this order. The 2nd Respondent/ Management is directed to mark original documents [as the primary evidence] and not the xerox copies of documents and in this regard, the 1st Respondent/Labour Court, Vellore is to act in accordance with law.
50.Accordingly, the Writ Petition is disposed of, leaving the parties to bear their own costs.
Sgl To
1.The Presiding Officer, Labour Court, Vellore.
2.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Section, 75th Cross Street, Gandhi Nagar, Vellore 7