Tamil Nadu Handicrafts DevelopmentCorporation v. B.R.Padmanabhan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:12.07.2011CORAMTHE HONOURABLE MR. JUSTICE T.RAJAW.P.No.12964 of 2003Tamil Nadu Handicrafts DevelopmentCorporation,Rep. by its Secretary & Personnel Management,No.759, Anna Salai, Chennai - 600 002.... PetitionerVs.1.B.R.Padmanabhan2.The Principal Labour Court, City Civil Court Buildings, High Court Campus, Chennai - 600 104.... RespondentsPRAYER: Writ Petition filed under Article 226 of Constitution ofIndia praying to issue Writ of certiorari to call for the recordspertaining to I.D.No.698 of 1997, dated 07.11.2001 on the file of the2nd respondent, namely the Principal Labour Court, Chennai.For Petitioner :Mr.N.JyothiFor Respondents:Mr.M.Boopathy for R1 R2 - CourtORDERThe petitioner has filed the present writ petition challengingthe correctness of the award passed by the Principal Labour Court, inand by which, the Principal Labour Court has ordered the petitioner'scorporation 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 on20.05.1997, filed a petition before the Conciliation Officer. Afterthe conciliation proceedings met with failure, once again he hasraised an industrial dispute under Section 2-A(2) of the IndustrialDisputes Act before the 2nd respondent-Principal Labour Court. 3. A claim made by the first respondent before the PrincipalLabour Court was that he was employed in the petitioner's corporationas 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 wasdrawing a salary of Rs.65/- per day from the petitioner'scorporation, even without any notice whatsoever, the petitioner'scorporation has retrenched the service of the petitioner totally inviolation of Section 25-F of the I.D. Act. As he was not given anynotice for retrenchment from service, he prayed for passing thesuitable award, by accepting his claim petition, before the 2ndrespondent - Principal Labour Court.4. Before the Labour Court, the petitioner's Corporation hasalso filed a detailed counter raising the maintainability of theclaim petition under Section 2-A of the I.D. Act. When thepetitioner's corporation had argued their case before the LabourCourt that the said Act was not applicable to the case of thepetitioner as he was not employed for more than 10 days in thepetitioner's corporation and even for that 10 days also, he wasrecruited for a stop gap arrangement only as a daily wager to meetthe festival sales and other activities in the petitioner'scorporation, the second respondent-Labour Court has allowed the claimpetition directing the petitioner's corporation to reinstate thefirst respondent with backwages, without taking into considerationthe burden of proof that always lies with the first respondent.5. Learned counsel appearing for the petitioner further submitsthat when the first respondent was appointed for 10 days on a dailywage basis to meet the festival sales in the petitioner'scorporation, he has to establish his case before the Labour that hewas appointed by issuing any appointment order. When the firstrespondent has failed to establish his case that he was an employeeof the petitioner's corporation, the second respondent-Labour Courtcannot shift the burden of proof upon the petitioner's corporation,when they have already discharged the onus admitting that theemployee was engaged on stop gap arrangement only for 10 days to meetthe festival rush. Further, it was contended that when the firstrespondent miserably failed to produce any document to show that thefirst respondent has worked in the petitioner's corporation as anemployee for more than 10 days, the Labour Court should havedismissed the claim petition made by the first respondent, by holdingthat the first respondent was not employed on a regular basis. Whenthere is no finding given on this issue, the award passed by theLabour Court is not legally sustainable in the eye of law. On thatbasis, he further contended that except a direction to reinstate thefirst respondent with payment of backwages, no other finding has beengiven by the Labour Court. On that note, he prayed for setting asidethe award passed by the Labour Court, as it is not legallymaintainable.6. Per contra, learned counsel appearing for the firstrespondent has submitted that when the first respondent was appointedas 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 firstrespondent, should have atleast issued a notice. As they have notdone so, the first respondent has rightly approached the ConciliationOfficer by moving an application. The Conciliation Officer, evenafter completing the proceedings, was unable to submit any report,which resulted the first respondent to raise an industrial disputeunder Section 2-A of the Act before the Labour Court. When the firstrespondent has approached the Labour Court, the Labour Court acceptedthe case of the first respondent on the ground that the petitioner'scorporation has deliberately concealed all the documents includingthe register maintained by the petitioner's corporation. Therefore,the Labour Court has rightly putting onus upon the petitioner'scorporation finally allowed the claim petition directing thepetitioner's corporation to reinstate the first respondent withbackwages along with continuity of service. Therefore, the awardpassed by the second respondent with reinstatement of service neednot be interfered with. 7. Heard the learned counsel appearing on either side andperused the materials available on record.8. It is a case where the first respondent was appointed asSalesman on 06.06.1994 in the petitioner's corporation. The counterstatement filed by the petitioner's corporation before the secondrespondent shows that only to meet the festival sales in theirexhibition, they have gone for appointing some persons on daily wagebasis, therefore, when the petitioner's corporation has filed acounter stating that first respondent was not appointed on regularbasis and he was appointed only for 10 days to meet the festival rushin the showroom, the question of proving the appointment made by thepetitioner's corporation appointing the first respondent in theircorporation on regular basis is certainly cast on the firstrespondent. In fact, the first respondent also except making a baldstatement in his claim petition, nowhere he has mentioned the date ofappointment or the payment of salary received by him from thepetitioner'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 maximof affirmatis est probare, the person who affirms must prove. In thepresent case, the first respondent, who has made a claim that he hasworked for more than 240 days in the petitioner's corporation, shouldhave furnished atleast a minimum evidence to the Labour Court toaccept his claim that he has worked for more than 240 days. Sincethe proof is incumbent on the one who affirms, not on the one whodenies, the Labour Court ought not to have accepted the claim of thefirst respondent, particularly, when the petitioner's corporationspecifically took a plea that he was appointed only for 10 days tomeet the festival rush in their showroom. Further, when thepetitioner'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 10days by way of stopgap arrangement, the Labour Court should haveinsisted upon the first respondent to produce atleast someinformation, like, appointment order, ID card if any issued by thepetitioner's corporation or a copy of pay slip. But, on the otherhand, the Labour Court, by merely accepting the averments made in theclaim petition, wrongly allowed the prayer by passing the award. 10 Though the learned counsel for the first respondent cited ajudgment of the Apex Court in Triveni Engineering and IndustriesLimited Vs. Jaswant Singh and Another ((2010) 9 SCC 151) on the pointto decide whether a person is workman or not, the said judgment doesnot lend any support to the case of the petitioner. In paragraph 22thereof, the Apex Court has held that whether or not a person is aworkman is a matter that relates primarily to facts and circumstancesof the case. The same has nothing to do with the application andinterpretation of the Standing Orders. What needs to be examined andlooked into for deciding the aforesaid issue is the nature of jobperformed by the person concerned, duties and responsibilities vestedin him and other such relevant material. Therefore, even if thisCourt applies the test mentioned in the above said judgment, as perthe observation made in paragraph 22 thereof, the first respondenthas failed to establish his case before the Labour Court by producingminimum evidence. Secondly, in another judgment referred by the learned counselfor the first respondent, in the case of Srirangam Co-operative UrbanBank Ltd., Srirangam, Vs. Labour Court, Madurai (1996 (1) L.L.N.647),a Division Bench of this Court has held that an employee, who entersthe service, under a valid contract of service, cannot be terminatedwithout 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 saidservice has been terminated without complying with the provisions ofSection 25F. Whileso, when the first respondent has failed toestablish his case before the Labour Court that he has entered intothe service of the petitioner's corporation under a valid contract ofservice by producing a minimum acceptable documents, like,appointment order, I.D. card, pay slip or any other communicationbetween the petitioner's corporation and the first respondent, hecannot deny the fact that he was engaged on a stopgap arrangement for10 days to meet the festival rush in their showroom as claimed by thepetitioner's Corporation. 11. Therefore, since no such finding has been given by theLabour Court, I am of the considered view that the award challengedin the present writ petition by the petitioner's corporation isliable to be set aside and further I am of the view that the firstrespondent should also be given another chance to reappreciate hiscase 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 anddispose of the same in accordance with law within a period of threemonths from the date of receipt of a copy of this order, since thematter is being a old one, pending since 2002.12. With the aforesaid direction, the present writ petition isallowed by setting aside the award passed by the second respondent-Principal Labour Court, Chennai. No Costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarrkmTo1.The Principal Labour Court,City Civil Court Buildings,High Court Campus,Chennai - 600 104.2.The Section Officer,V.R.SectionHigh Court, Madras-104.1 cc to Mr.N.Jyothi , Advocate, Sr.No.411081 cc to Mr.K.P.Chandrasekaran , Advocate, Sr.No.41189W.P.No.12964/2003gr(co)pmk.3.8.2011