High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 27-06-2007CORAMTHE HONOURABLE MR.JUSTICE DHARMA RAO ELIPEANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWRIT APPEAL No.1569 OF 2002C.Vijayakumaran...Appellant/2nd Respondent inWP.No. 12174/94.-vs-1.The Tamilnadu State Transport Corporation (Madurai Division-III), rep.by its Managing Director, Ranithottam, Nagercoil, Kanyakumari District....Ist respondent/Petitioner inWP.No. 12174/94.2.The Presiding Officer, Labour Court, Tirunelveli....2nd Respondents/Ist Respondent in 12174/94Appeal against the order, dated 12.02.2002, made in W.P.No.12174of 1994 on the file of this Court Writ of Certiorari to call for therecords in ID.No. 552/1989 from the Ist respondent and quash teh aawarddated 9.6.1993 passed by the firs respondent in the said ID.No. 552/1989.For appellant : Mr.N.Edwin JeyakumarFor respondent 1 : Mr.V.R.KamalanathanJ U D G M E N TS.PALANIVELU,J.This Writ Appeal is directed against the order of a learnedsingle Judge of this Court, dated 12.02.2002, made in W.P.No.12174 of https://hcservices.ecourts.gov.in/hcservices/ 1994, whereby the award of the Labour Court, directing reinstatement ofthe appellant with back wages, was set aside.2. The factual background, leading to the filing of this WritAppeal, is recounted as under :2.1. On 18.11.1987, the appellant/workman was appointed as aSecurity Guard in the respondent Corporation at Thoduvetty (Marthandam)New Depot, Kanyakumari District. 2.2. On 23.11.1987, there was a theft of cement, allegedly byone Selvaraj, Junior Engineer, one Muthiyan, permanent Security Guard,and the Contractor, who had undertaken the construction of new depot work. 2.3. The matter was reported by the appellant to the higher-upsand, thereafter, an inquiry was conducted, in which the appellant deposedabout the facts of theft. The said proceedings culminated in removal ofthe said Junior Engineer and the permanent Security Guard from service. 2.4. On 29.11.1987, the appellant was transferred fromMarthandam New Depot to Mondaymarket New Depot. He was drawing Rs.17.50ps. per day and, after four months, his wages were increased to Rs.18.50ps. per day. During the period of his service, no adverse remarks werenoted or recorded by the management against him. He worked in the abovesaid two depots from 18.11.1987 to 15.12.1988, without any break. 2.5. When the appellant went to attend duty in the MondaymarketNew Depot at 08.00 a.m. on 16.12.1988, he was not allowed by his superiorsto sign in the attendance register. Thereafter, when he approached thesuperior officers for joining duty, they continuously refused to permithim to join duty. Though a registered letter was sent by the appellant on20.12.1988, there was no reply. Hence, he preferred a conciliationpetition under Section 2 A of the Industrial Disputes Act before theAssistant Commissioner of Labour, Tirunelveli, for taking him to work withusual service benefits and promotion.2.6. The said petition was opposed by the first respondentCorporation, stating that the appellant/workman was engaged only as acasual labourer at the market rate of wages to look after the materials,stored for construction of new depot building, on the basis "no work, nowages"; since he was a casual labourer, no attendance was necessitated;there was no scope for his permanent absorption; he was not appointed as aSecurity Guard in the Corporation; he was not issued with any appointmentorder; the allegation that he served continuously from 18.11.1987 to15.12.1988 is false; he was engaged for the periods from 18.11.1987 to16.01.1988; 20.01.1988 to 18.03.1988; 24.03.1988 to 21.05.1988; 01.08.1988to 25.08.1988 and 14.07.1988 to 12.08.1988 and, thereafter, he was notunder engagement by the Corporation. https://hcservices.ecourts.gov.in/hcservices/

2.7. On 24.08.1989, the Conciliation Officer passed an orderunder Section 12 (4) of the Industrial Disputes Act, stating that sinceboth the workman and the management were reiterating their contentions, noconciliation was arrived at and that the workman was advised to raise anindustrial dispute before the Labour Court.2.8. Then, the appellant raised an industrial dispute inI.D.No.552 of 1989 before the Labour Court, Tirunelveli, in which, anaward came to be passed on 09.06.1993, directing the management toreinstate the appellant/workman in service with continuity of service andfull back wages. The finding of the Labour Court was that the workmanestablished that he worked under the management continuously for 384 daysi.e., from 18.11.1987 to 15.12.1988.2.9. Aggrieved over the said award of the Labour Court, therespondent/management preferred a writ petition, which was allowed by alearned single Judge of this Court, setting aside the award of the LabourCourt. 2.10. Hence, this Writ Appeal, at the instance of the workman.3. The main point that arises for consideration in this appealis, whether the appellant had been in service for a continuous period of240 days under the respondent Corporation ?4. It was not debated that the appellant worked under therespondent Corporation. But, it was disputed by the respondent that theappellant did not work continuously and, instead, he was engaged on dailywage basis with breakups for certain days.5. The Labour Court, as a fact finding authority, on a thoroughanalysis of the oral evidence on record and the exhibits produced by bothsides, concluded that the appellant had worked continuously for 240 days.It was observed in the award that I.A.No.81 of 1991 was filed by theworkman on 16.08.1991, wherein an order was passed on 04.10.1991 thatattendance registers and salary receipts ought to be produced by themanagement. It was also observed therein that a similar request toproduce the above said records was made by the workman before theAssistant Commissioner by filing a petition on 16.03.1989, while theproceedings were pending before him, but, there was no response from themanagement.6. The contention by the management before the Labour Court was,that while an inquiry was conducted in 1993, the records, required by theworkman, were destroyed. https://hcservices.ecourts.gov.in/hcservices/

7. Since, under the above said circumstances, the records werenot brought out by the respondent Corporation, the Labour Court had takeninto consideration the xerox copies of attendance register and otherdocuments, produced by the workman. Exs.A-7 to A-14 are the xerox copiesof attendance registers, maintained by the Corporation, for recordingattendance of certain staff, including the present appellant. Exs.A-15 toA-18 are the xerox copies of payment vouchers, maintained by theCorporation. The appellant claimed that the above said documents wereissued to him by the management itself. The appellant also producedExs.A-19 to A-21, stating that they are the xerox copies of receipts, forpayment of salary. In the cross-examination, when a suggestion was put tothe appellant that the above said documents were created by him for thepurpose of the case, his answer was in the negative. He also examinedtwo more witnesses on his side as W.W.2 and W.W.3, who were also SecurityGuards, worked with him, during the relevant point of time. Both of themdeposed in a similar tone that the appellant was working under therespondent Corporation continuously. Witness No.3 deposed that hissignature was found in Exs.A-9 to A-14. Both the above witnesses wereremoved from service by the management and they also raised industrialdisputes, for reinstatement. 8. Civil Engineer of the respondent Corporation posed as M.W.1and denied the genuineness of Exs.A-7 to A-14. He deposed, that forpayment of salary to the workmen, the Corporation used to get receiptsfrom them. Further, in his cross-examination, he stated that they had notreceived any receipts from the workmen for payment of wages and,afterwards, he added that such receipts were to be cancelled, after thecontents of which were entered in relevant registers. His testimonies areself-contradictory. In an institution like that of the respondent, nomoney will be disbursed without getting receipts. When that be so, thosereceipts should have been in possession of the management and producedbefore the Labour Court.9. According to the respondent Corporation, the appellant wasnot in continuous service. But, if the attendance registers and paymentvouchers are taken into consideration, it could be seen that the appellanthad been in continuous service for over 240 days. Based on the saidrecords and observing that the Corporation had not produced any records toshow that there was no continuous service, the Labour Court has rendered afinding that the appellant was in continuous service for 384 days i.e.,from 18.11.1987 to 15.12.1988. It was also observed by the Labour Courtthat even after a request was made by the workman on more than oneoccasion for production of relevant attendance registers and paymentvouchers, the management failed to produce them. https://hcservices.ecourts.gov.in/hcservices/

10. The learned single Judge observed that there was no evidenceto show that the workman had worked for 240 days and that the Labour Courtwas not justified in accepting the case of the workman and orderingreinstatement. 11. When there was a categorical admission by the Corporationthat they used to maintain payment vouchers for the purpose of payment ofsalary to the workmen and as per the procedure they used to cancel themafter entering the contents in the registers maintained for that purpose,the failure on the part of the Corporation to produce those documentsbefore the Court stands unexplained. Even though the attendance registerswere denied by the respondent Corporation, still, there was no embargo forproducing the payment vouchers before the Court, to show that there was nocontinuity of service. 12. Learned counsel for the respondent vehemently contends thatthe Labour Court has drawn an adverse inference against the management fornon-production of certain documents, which is not legally supported, andthe law does not require the Court to draw an adverse inference, when adocument was not produced by the management. For this proposition of law,he garners support from a decision of the Hon'ble Supreme Court inMunicipal Corporation v. Siri Niwas, 2004 (4) L.L.N.785, in which it isheld thus :"21. Curiously, the respondent produced copies ofsome muster-rolls before this Court. If he was inpossession of the said documents, it betrays one'simagination as to why the same had not been producedbefore the Tribunal. As indicated hereinbefore, hefiled some documents before the High Court but the samewere not accepted. The High Court, therefore,proceeded to pass the impugned judgment only on thebasis of the materials relied on by the parties beforethe Tribunal. The High Court, in our opinion,committed a manifest error in setting aside the awardof the Tribunal only on the basis of adverse inferencedrawn against the appellant for not producing themuster-rolls."13. A careful perusal of the award of the Labour Court wouldshow that it had not drawn any adverse inference for non-production ofcertain documents by the management/Corporation. Though the Labour Courtobserved that the documents, required by the workman, were not produced bythe management, it intended to proceed, considering the documentsexhibited on behalf of the workman. https://hcservices.ecourts.gov.in/hcservices/

14. In the case discussed before the Hon'ble Supreme Court, theworkman produced copies of muster-rolls before the Supreme Court and theSupreme Court has also observed that had the said documents been with theworkman, they might have been produced before the Tribunal, whereas thefacts of the present case are distinguishable. 15. In the above said decision of the Hon'ble Apex Court, it isruled that the burden of proof lies on the workman that he had workedcontinuously for 240 days in the preceding one year, prior to hisretrenchment. 16. In the case on hand, the question of retrenchment does notarise. In order to establish that the appellant had worked continuouslyfor over 240 days, sufficient materials are available. 17. The findings of the Labour Court are very much consideredby us and they could bear the seal of approval of this Court. We feel,nothing was wrong on the part of the Labour Court to pass an award infavour of the appellant, relying on the documents produced by him.However, the observation of the Labour Court with regard to payment ofback wages requires reconsideration.18. Keeping in view the peculiar facts and circumstances of thiscase, we are of the opinion that the direction for payment of full backwages warrants modification and interest of justice would be served, ifthe respondent is directed to pay 50% of the back wages. 19. Accordingly, the Writ Appeal is allowed in part, settingaside the order of the learned single Judge and modifying the award of theLabour Court, to the effect that the respondent Corporation shall pay 50%of the back wages to the appellant. In other aspects, the award standsconfirmed and restored. No costs.dixitSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Presiding Officer,Labour Court,Tirunelveli. https://hcservices.ecourts.gov.in/hcservices/

2.The Managing Director, Tamilnadu State Transport Corporation (Madurai Division-III), Ranithottam, Nagercoil, Kanyakumari District. + One cc to Mr. Edwin Jeyakumar, Advocate sR 38085ASM (co)sg 3/7/07 W.A.No.1569 OF 200227-06-2007