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Judgment
T. Raja, J.—This writ petition has been filed challenging the soundness of the impugned common award passed by the I Additional Labour
Court, Chennai in I.D. Nos. 79 to 85, 124 and 125 of 2000 dated 23.4.2004, to quash the same insofar as the first respondent has negatived the
claim of the petitioners for reinstatement with continuity of service along with back wages and all other attendant benefits. Mr. K. Mohanamurali,
learned counsel for the petitioners submitted that when all the writ petitioners were engaged by the second respondent Management as casual
workers on various dates between 5.10.94 and 24.12.94, they were paid with a daily wage of Rs. 80 to Rs. 85. While so, all of a sudden, in the
month of May 1998, the services of the petitioners were terminated without assigning any reason. As the Management did not follow or comply
with the mandatory requirements of Section 25F of the Industrial Disputes Act, 1947 (""the Act"" in short), although the petitioners worked
continuously for more than 240 days in the preceding one year, the Axle India Workers Union, which is championing the cause of majority
workmen, objected to the said practice of engaging casual and contract workmen and also pressed for regularisation of their service. Accepting
the objection made by the Axle India Workers Union, the second respondent Management reinstated all the petitioners in service in the month of
March, 1999. Ironically, within a month thereafter, the second respondent again orally terminated the services of the petitioners erroneously
without complying with the mandatory requirements of Section 25F of the Act. When the union intervened with protest against the unjust
termination of the petitioners, the second respondent stated that there has been a recession in the automobile industry, therefore, they were unable
to continue the services of the petitioners. At the same time, the second respondent also announced a voluntary retirement scheme for the
permanent workmen. Even though the union advised the workmen not to opt for the voluntary retirement scheme, the second respondent offered a
substantial amount as compensation to some of the casual workmen also and finally the second respondent entered into a settlement u/s 18(1) of
the Act with the individual workman for leaving the company on payment of compensation. Accepting the settlement, out of 56 workmen, 47
workmen accepted the compensation. However, 9 of them refused to accept the settlement reached u/s 18(1) with the second respondent
Management. As they refused to accept the Section 18(1) settlement, the second respondent terminated their service. Therefore, challenging their
non-employment, the petitioners raised industrial disputes u/s 2-A(1) of the Act. When the issue was taken up for conciliation by the Assistant
Commissioner of Labour (Conciliation), Chennai, it was specifically represented before the Conciliation Officer that the petitioners had worked for
more than 480 days in two calendar years, therefore, they had become entitled for regularisation in accordance with the provisions of the Tamil
Nadu Industrial Establishments (Conferment of Permanent Status) Act, 1981. But the second respondent adopted a stiff and adamant attitude, as
a result, the conciliation ended in failure and the matter was brought before the I Additional Labour Court in I.D. Nos. 79 to 85, 124 and 125 of
2000.
It was further stated that since the issue raised in all the aforementioned industrial disputes was one and the same, both parties filed a joint memo
for letting common evidence and for joint trial of all the disputes. Accordingly, two witnesses were examined as W.W. 1 and W.W. 2 and Ex. W1,
copy of the petition given by the petitioners along with the letter from the petitioner union to the management dated 28.6.91 and Ex. W2, copy of
the enquiry proceedings dated 3.5.2001 in respect of W.W. 1 and Thiru Rammohan were marked to support the case of the workmen. From the
management side, one witness was examined as M.W. 1 and Exs. M1 to M165 were marked. Even during the course of arguments, the second
respondent offered to give employment to the casual workmen on fresh terms, but the petitioners were advised not to accept such offer. Ignoring
all these aspects, the Labour Court has wrongly dismissed all the disputes assigning unreasonable and unsound reasons, more particularly when the
petitioners have complained that their services were terminated without following the mandatory requirements u/s 25F of the Act, the second
respondent having not even taken up the plea of the petitioners for having worked for 240 days prior to the date of termination, the Labour Court
miserably failed to accept the case of the petitioners. When there was no pleading from the side of the second respondent that the petitioners have
not worked for 240 days, the petitioners need not prove that they had worked for more than 240 days prior to the date of termination. Moreover,
he pleaded, when the second respondent Management had deducted the contributions towards provident fund scheme from the wages of the
petitioners every month and the petitioners have also been paid with the annual bonus and overtime wages, the Labour Court ought to have held
that the petitioners had worked for 240 days prior to the date of termination, for the simple reason that unless the petitioners continuously worked
for more than 240 days, the second respondent Management would not have deducted the contributions towards provident fund scheme from the
wages of the petitioners and the second respondent would not have paid the annual bonus and overtime wages. When these vital aspects have
been completely overlooked, the impugned award is liable to be set aside.
Further, the learned counsel for the petitioners, having filed an interlocutory application in W.P.M.P. No. 104 of 2013 during the pendency of
the writ petition seeking permission to file additional documents in support of the writ petition, again pleaded that when the petitioners were
working as casual workers, they were actually engaged in regular production jobs along with the other workmen in the factory of the second
respondent. When the second respondent had paid bonus to the permanent employees as per Section 8 of the Payment of Bonus Act, 1965, the
same bonus was paid to the casual workmen. In support of his submission, the learned counsel also took me through the set of documents annexed
to the typeset viz., receipt dated 13.10.95 issued by the second respondent in the name of Mr. N. Ramesh, the sixth petitioner herein for payment
of bonus of Rs. 1880/- for the year ended 31.3.95, another receipt dated 18.10.96 issued to the very same person for payment of bonus of Rs.
2239.40 for the year ended 31.3.96, another receipt dated 28.11.97 for payment of bonus of Rs. 2690/- for the year ended 96-97 and for
payment of festival advance. Similarly, one another set of documents forming part of the typedset for payment of bonus in the name of Mr. J. Balu,
the seventh petitioner herein for the year 1995 was also taken through to show that the said Mr. J. Balu was paid with the provident fund
contribution. Except these documents, no other document supporting the case of the petitioners has been filed by the petitioners. However, with
the documents of these petitioners, the learned counsel submitted that all these material documents will show that the petitioners are all working
continuously and they were paid with the bonus, festival advance, overtime wages. Therefore, all these documents cannot be ignored lightly.
However, when the second respondent has failed to raise the point of continuous employment of the petitioners, the petitioners were not able to file
all the documents before the Labour Court, even though they had worked for more than 240 days. Therefore, the matter has to be remanded to
the Labour Court with a direction to take on record all the relevant documents filed before this Court for proper adjudication of the entire industrial
disputes of all the petitioners. In support of his submissions, he also relied upon the judgment of the Apex Court in the case of Santuram Yadav
and Another Vs. Secretary, Krishi Upaj M.S. Bemetara and Another, and contended that important material documents showing the continuous
service of the petitioners working under the employer cannot be lightly ignored. Hence, he pleaded, the issue needs to be remanded for a decision
afresh to the Labour Court.
Per contra, the learned counsel for the second respondent Management, relying upon the counter affidavits filed in the main writ petition and
miscellaneous petition, vehemently contended that the writ petition filed challenging the correctness of the award passed by the Labour Court is not
maintainable, since the petitioners have challenged only the finding of facts, inasmuch as the Labour Court, having perused the entire material on
record both oral and documentary, passed the impugned award purely on question of fact as to whether the petitioners are permanent employees
and they have not been properly dealt with as per Section 25F of the Act. When it is a settled law that the casual labourers on daily wages are not
entitled for reinstatement, the said reasoning cannot be questioned on the ground that the Labour Court has committed a factual mistake. When it is
an admitted fact that all the nine petitioners were only casual employees working intermittently without any appointment order for appointing any
one of them as casuals, that at the time of dispensing with their service also no termination order was either issued to any of them, that the
petitioners have not even produced any single evidence before the Labour Court to show that they were working continuously from a particular
time to particular year, that the petitioners were paid only Rs. 70 per day as wages, but not Rs. 80 to Rs. 85 as falsely alleged, the petitioners have
not established any case before the first respondent in support of their contentions by producing all these documents. Moreover, the learned
counsel for the second respondent, by bringing to the notice of this Court Section 8 of the Payment of Bonus Act, submitted that the case of the
petitioners that they were paid bonus for various years which show that they were all continuously employed, cannot be accepted, for the simple
reason that Section 8 of the Payment of Bonus Act clearly says that every employee, whether permanent or casual, shall be entitled to be paid by
his employer in an accounting year bonus in accordance with the provisions of the Act, provided he has worked in the establishment for not less
than thirty working days in that year. Therefore, in terms of Section 8 of the Payment of Bonus Act, two of the petitioners, namely, Mr. N. Ramesh
and Mr. J. Balu, having worked for 30 days during the relevant period, were paid with the bonus. But that does not mean that they were all
continuously working, he pleaded. Moreover, when an opportunity was given to them before the Labour Court to produce all the documents to
prove their continuous employment, no document whatsoever has been produced including the documents which are sought to be filed before this
Court. Secondly, no other document relating to other petitioners have been produced even before this Court, even though the Labour Court has
dismissed their case for want of documents to establish that they were continuously working. Therefore, simply for the reason that they were paid
bonus, it cannot be misconstrued that they were continuously working for more than 240 days. When it is the primary obligation on the part of the
petitioners to establish that they had worked for 240 days prior to their termination, they miserably failed to establish this important aspect before
the Labour Court. Therefore, it is not open to them to say that the matter should be remanded to the Labour Court for fresh disposal on the basis
of the documents showing the payment of bonus and the payment of festival advance.
Further, it was stated that the writ petition has been filed for frivolous reasons and the petitioners are no more interested in getting employment
from the second respondent Management, because, as a matter of fact, when the second respondent was facing acute recession, they introduced a
voluntary retirement scheme to benefit the permanent workmen. Most of the permanent employees accepted the voluntary retirement scheme.
Along with the voluntary retirement scheme, the second respondent also entered into a settlement u/s 18(1) of the Act to benefit all the 56 casual
workmen. Except these nine petitioners, knowing the difficult situation faced by the second respondent, 47 workmen accepted the Section 18(1)
settlement and received their compensation. In that process, the petitioners were also offered a sum of Rs. 75,000/- as compensation, which is
more than the compensation as determined u/s 25F of the Act. But unfortunately, the petitioners neither came forward to accept the Section 18(1)
compensation, which is more than the compensation contemplated u/s 25F of the Act, nor accepted the offer of fresh employment given by letter
dated 20.1.2004. Even after sending the letter dated 20.1.2004, unfortunately the petitioners bluntly refused to accept the offer of fresh
employment. Therefore, it is not fair on the part of the petitioners to complain the unfair labour practice on the part of the second respondent
Management. On this basis, it was pleaded that when the petitioners have not even established their case that they were continuously employed for
more than 240 days in the second respondent Management, yet, they were offered compensation along with 47 other workmen, the petitioners
unreasonably rejected the same. Moreover, when they were offered employment, even that offer of employment was also rejected by the
petitioners. Therefore, the petitioners are unreasonable in their approach. Therefore, the impugned award passed by the Labour Court cannot be
interfered with.
Heard the learned counsel for the parties. It is an admitted case of the petitioners that they were all engaged by the second respondent
Management as casual labourers on various dates. Though it was claimed in the affidavit filed in support of the writ petition that they were engaged
as casuals between 5.10.94 and 24.12.94 and they were paid with daily wages, no such proof whatsoever has been produced either before the
Labour Court or before this Court. When nine persons have come to the Labour Court raising industrial disputes on the ground that they were all
terminated without following the conditions mentioned in Section 25F of the Act and the matter was also taken up for common trial, it is the
bounden duty of the petitioners to produce some clinching evidence in support of their case that they were employed continuously for a period of
240 days. Unfortunately, no document whatsoever has been produced in support of any one of the petitioners. It shows that no order of
appointment was issued by the second respondent for appointing them as casuals. However, when this Court looks at the copies of documents
showing the payment of bonus in the names of Mr. N. Ramesh and Mr. J. Balu viz., the receipt dated 13.10.95 for payment of bonus to Mr. N.
Ramesh for the year ended 31.3.95 for a sum of Rs. 1880/-, another supplementary payment of incentive for October, 1995, festival advance for
October, 1995 and the bonus amounts paid by receipts dated 18.10.96, 28.11.97 and the payment of bonus in the name of Mr. J. Balu as on
31.3.96 cannot improve their case that they had worked for 240 days by virtue of Section 8 of the Payment of Bonus Act, which reads as under:-
Eligibility of bonus: Every employee shall be entitled to be paid by his employer in an accounting year, bonus, in accordance with the provisions
of this Act, provided he has worked in the establishment for not less than thirty working days in that year.
A mere reading of Section 8 shows that every employee is entitled to get bonus in the accounting year if he has worked in the establishment for not
less than thirty working days in that year. Therefore, two of the petitioners viz., Mr. N. Ramesh and Mr. J. Balu were paid bonus for the period
1995-96. That will not improve their case to show that they had worked for more than 240 days. Moreover, when the case of the petitioners were
non-suited by the Labour Court on the ground that they miserably failed to establish their continuous employment for more than 240 days, even
before this Court, while filing the writ petition challenging the correctness of the award, again none of the petitioners have produced any acceptable
evidence to establish their case that they have worked for more than 240 days during the relevant period. That apart, when the second respondent,
after facing difficult times, announced the voluntary retirement scheme for the permanent workmen, to help out the casuals like the petitioners, the
second respondent also came forward to pay sufficient compensation to all the casual employees. Accepting the offer of voluntary retirement
scheme announced by the second respondent, all the permanent workmen and also the casual employees have accepted the financial benefits. In
this context, it could be seen that 47 casual employees have also entered into the Section 18(1) settlement and only the petitioners alone have
refused to fall in line with the majority of the employees. Thirdly, the second respondent, after the production volume has increased, fairly came
forward to accommodate the petitioners by writing letters dated 13.1.2004 inviting all of them to come back to work and the relevant portion of
the letter reads as under:-
You were working as a daily rated casual worker in Sriperumbudur factory till March 1999. Your services were dispensed with, as there was
no work. You were taken as a casual due to exigencies of work and along with you 47 casuals were also dispensed with their services, as there
was no work. These 47 casuals got their full and final settlement from the company by accepting substantial compensation paid to them by the
company. Although you had also accepted to settle your accounts by accepting compensation like the other 47 casuals, you had suddenly resiled
from the accepted proposal, presumably on the ill advice of some one.
The production volume has increased now and due to exigencies of work, we are prepared to entertain you as a casual.
For your information, Sriperumbudur factory now works for 6 days a week and in three shifts a day pattern. Besides, production/productivity
norms have been revised. Accordingly, the requirement of a minimum of 9 axles per hour and 70 per shift of 7 � hours are also in existence, and
these workmen have committed to increasing productivity in each operation and shift output on a continuous basis. Production standards, work
content, norms of production etc., will be revised by the company from time to time. The requirement of recording hourly production in the job
ticket by workmen is also in practice. You will be required to comply with all these requirements and sign a settlement u/s 18(1) of the Industrial
Disputes Act, 1947 as per the draft enclosed.
Please inform in writing from what date you are prepared to join. If no reply letter is received on or before 23.1.2004, it will be presumed that
you are not interested to join our company.
But unfortunately, all the petitioners, in their reply dated 20.1.2004, outrightly rejected the offer of employment made in the year 2004, that is nine
years ago. The relevant portion of the cryptic stand taken by all the petitioners are given as under:-
We gone through of your letter and the draft copy of the settlement proposal and as well your increased production etc....
We at the outset thanks to company and you for the offer of casual post. We are not in a position to accept the same, due to various reasons,
particularly due to pending disputes before the Court. You are aware it reached argument stages and pending. It be posted for hearing on
17.2.2004 too.
We also need to consult our legal advisers over this because we all worked more than 4 years early. It is a fact that more than retrenched persons
company appointed in the last 4-5 years. Many of them in the name of company apprentices all of them now signed settlement through their Union
it appears. These vacancies need to be offered early to 9+47 casuals retrenched without any proper norms followed too.
....
The above offer of employment by the second respondent way back in the year 2004 and the outright rejection by the petitioners nine years ago
do not justify the case of the petitioners any longer. When the petitioners were casual employees, according to them, they were denied employment
from April, 1999. However, when they laid their claim before the Labour Court alleging violation of Section 25F of the Act that they were not paid
with the compensation as determined at the time of their oral termination, unfortunately, none of the petitioners produced any document to show
their continuous employment for more than 240 days. Further, when it is the bounden duty of the petitioners to establish their case before the
Labour Court that they were working for more than 240 days when they were terminated orally by the second respondent, it is not open to them
to say that the second respondent never took up any plea before the Labour Court that they were not working continuously for more than 240
days. Further, when the management themselves have come forward to offer employment even in the year 2004, the petitioners, for the reasons
best known to them, rejected the same, which shows that they are not prepared to accept the offer of employment through amicable settlement.
Therefore, this Court also, at the time of hearing the matter, although directed the second respondent to bring nine demand drafts carrying Rs.
1,00,000/- in the name of each of the petitioners, when the other 47 workmen accepted only Rs. 70,000/-, the petitioners have again rejected the
said offer. Therefore, this Court, finding that no satisfactory acceptable evidence has been produced by any one of the petitioners to prove their
case that they worked for 240 days continuously prior to the date of oral termination, is not inclined to interfere with the impugned award even for
remanding the matter to the Labour Court for fresh disposal, for the simple reason that even though certain documents were produced before this
Court in the names of Mr. N. Ramesh and Mr. J. Balu, they were relating only to the payment of bonus and festival advance for the relevant
period. Hence, as highlighted above, when Section 8 of the Payment of Bonus Act contemplates the payment of bonus for any employee who has
worked for more than thirty days in that accounting year, these documents cannot be taken on record to substantiate that they were continuously
working for 240 days. Moreover, except the two petitioners Mr. N. Ramesh and Mr. J. Balu, the other petitioners have not produced any
document at least to show that they were casuals working intermittently in the second respondent Management and they were paid with the wages
during the relevant time.
Besides, these documents could never be construed that the petitioners were in continuous service with the second respondent. Hence, in my
considered opinion, to prove the case that the second respondent has violated the provisions of Section 25F of the Act, all the petitioners should
have established their case that they were in continuous service, but they failed to prove the issue. In this context, a reference can be made to the
judgment of this Court in M. Madhu Vs. The Management Tamil Nadu Water Supply and Drainage Board and The Presiding Officer, Labour
Court, , wherein this Court has held that in the absence of any evidence produced by the petitioner therein to show that he worked for 240 days in
a period of one year, it cannot be said that there has been any violation of Sections 25B and 25F of the Industrial Disputes Act, therefore, the
petitioner therein was not in continuous service. In the said judgment, this Court has further added that the High Court should not sit in appeal to
re-appreciate the evidence while exercising the jurisdiction under Article 226 of the Constitution of India. Paragraph 14 of the said judgment reads
as under:-
The law is well settled that while testing the award of Labour Court, this Court, exercising jurisdiction under Article 226 of the Constitution, is
not sitting in appeal to reappreciate the evidence. But the fact remains that there is absolutely no evidence on the side of the petitioner to
substantiate his case and in such circumstances, there is absolutely nothing warranting this Court to interfere with the award of Labour Court.
While considering a similar issue u/s 25B of the Industrial Disputes Act, the Delhi High Court, in the case of Dharam Pal Vs. Management of
M/s. J. Roy and Bros and Another, , has held that it is the burden of the workman to prove that he was in continuous employment with the
management prior to termination. Mere self-serving documents of workman would not suffice to discharge the burden cast upon him. In the above
case, although the petitioner therein produced the photocopies of notice, identification certificate, visiting card, it was held that the above
documents placed by the workman do not show that he has worked for 240 days with the management prior to termination. The above ratios will
squarely apply to the case of the petitioners. For, in the present case, although the learned counsel for the petitioners produced only two
documents relating to Mr. N. Ramesh and Mr. J. Balu for payment of bonus and festival advance, the petitioners have not produced any other
document to substantiate their claims that they had worked for 240 days with the management in 12 months preceding their terminations.
Therefore, the receipts showing the payment of bonus, which has been given to every employee who has worked for not less than thirty days,
cannot be construed as reliable and sufficient documents to show that either Mr. N. Ramesh or Mr. J. Balu had worked for 240 days with the
management in 12 months preceding their termination. Further, when no other document has been produced in respect of the other petitioners, this
Court has to hold that the petitioners have miserably failed to discharge the burden of proof. For all the above reasons, this Court, finding no
clinching evidence from any of the petitioners, cannot re-appreciate the evidence once again when the petitioners have repeatedly failed both
before the Labour Court and also before this Court to show that they had worked for 240 days in 12 months so as to get the benefit of Section
25F of the Act. Accordingly, the writ petition fails and is dismissed. Consequently, W.P.M.P. No. 104 of 2013 is also dismissed. There shall be
no order as to costs.