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Judgment
R. Banumathi, J.—Petitioner/Management seeks a Writ of Certiorari to quash the Award of the first Respondent/Labour Court, Chennai
made in I.D. No. 734 of 1997 dated 31.8.2000, directing reinstatement of the 2nd Respondent and ordering other benefits.
Brief facts are as follows:- The second respondent was temporarily engaged as Field Worker on nominal muster roll basis in 1983.
Occasionally, the Petitioner also served as boiler operator. The second respondent was engaged as boiler operator on temporary basis, even
though he was not holding a Boiler Operator''s Certificate. The second respondent filed W.P. No. 15051 of 1991 to regualrise his services as a
Boiler Operator. That writ petition was dismissed directing that as and when the post of Boiler Operator is brought into existence in the
Corporation, the management shall consider the petitioner''s case for being appointed in that post.
Thereafter, on the ground that he was orally terminated in June 1997, the second Respondent raised a dispute and on failure of conciliation, he
filed a claim Petition before the Labour Court in I.D. No. 734/1997. The Management resisted that Claim Petition. The Labour Court passed the
impugned Award directing the Management to appoint the second Respondent according to his qualifications to any appropriate post and make
him permanent and with continuity of service and backwages.
Seeking regularization of his services as boiler operator, the Petitioner had filed W.P. No. 15051/1991. After hearing both parties, the Writ
Petition was rejected. However, the learned Judge has observed:
As and when the post of Boiler Operator is brought into existence in the Respondent''s Corporation, the Respondent shall consider the Petitioner''s
case for being appointed in that post. This Writ Petition is rejected with the above observation.
Laying stress upon the earlier order passed in W.P. No. 15051/1991, the learned Counsel for the Management vehemently contended that the
second Respondent having moved the High Court for regularization of his services as Boiler Operator, has again moved the Labour Court for the
same relief of regularization of services and other reliefs and hence the Claim Petition before the Labour Court was hit by Resjudicata. This
contention of the management does not merit acceptance. In W.P. No. 15051/1991, the Petitioner sought for regularization of his services as a
Boiler Operator. He has raised Industrial Dispute mainly on the ground that his termination of services in June 1997 was unjust and illegal. In the
claim Petition, the second Respondent, before the Labour Court mainly urged that he was in continuous service for more than fourteen years since
1983. By a careful perusal of both the proceedings, it is seen both are on different set of facts and the scope of enquiry was different. Therefore, it
cannot be contended that the Claim Petition before the Labour Court was hit by Resjudicata.
The learned Counsel for the second Respondent has submitted that the second Respondent having worked in continuous period of fourteen
years, the Labour Court has rightly ordered reinstatement of backwages. Placing reliance upon AIR 1992 SC 2130, the learned Counsel has
further submitted that the Petitioner Management has acted in contravention of the Rules and the Labour Court rightly found that the services of the
Petitioner was illegally terminated. It was further submitted that when the Labour Court has recorded the finding based upon the facts, the High
Court cannot reassess the evidence and substitute its findings for that of the Tribunal.
In consideration of the evidence and the contentions of the management and the employee, the Labour Court found that the second Respondent
was in continuous service for a long period and that his termination was not justified. The Labour Court did not analyse whether the termination
would constitute retrenchment within the meaning of Section 25(oo) read with Section 25-F of Industrial Disputes Act. Placing reliance upon AIR
1992 SC 2130, the Labour Court was of the view that the second Respondent was unjustly terminated.
We may firstly consider the findings of the Labour Court regarding unjust termination. Assailing the impugned Award, the learned Counsel for
the Management has submitted that the Labour Court has not adverted to the facts and has erroneously held the termination as ''unjust''. The
learned Counsel further urged that the second Respondent having been appointed as daily wages worker, and not a permanent employee, cannot
claim any right to the post, which aspect was not properly considered by the Labour Court.
Power of superintendence under Article 227 of the Constitution of India has to be sparingly exercised and only in appropriate cases, where
there is assumption of excessive jurisdiction or irregular exercise of it, the High Court would interfere with the award of the Labour Court. Where
the conclusion of the Tribunal is based on no evidence or where there is erroneous jurisdiction, the High Court would certainly reassess the
evidence and materials. The case on hand is one such instance where the interference is justified, since the Labour Court has exceeded its
jurisdiction.
The Labour Court has directed reinstatement of the second Respondent mainly on the ground that the second Respondent was working with
the Petitioner Management as temporary coolie for more than thirteen years and during his employment, he was paid wages. Finding that the
termination of the Petitioner was unjust and improper, reinstatement in appropriate post with continuity of services was ordered by the Labour
Court. The Labour Tribunal being constituted under the Industrial Disputes Act, could order reinstatement with backwages only if it finds the
retrenchment invalid and inoperative. By a catena of decisions, it is well settled that where pre-requisite, for valid retrenchment, as laid down in
Section 25F has not been complied with, retrenchment bringing about termination of service is void.
In The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, the Supreme Court held that failure to comply with the
requirement of Section 25F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and
inoperative. In other words, it does not bring about a cessation of service of the workman and the workman continues to be in service.
In the impugned award, the Labour Court has not adverted to the condition of eligibility of a workman/R-2 to complain of invalid
retrenchment/ termination. Unless the workman has put in continuous service for not less than one year, his case would not be governed by Section
25-F. Before the workman can complain of retrenchment, being not in consonance with Section 25-F, the workman has to show that he has been
in continuous service for not less than one year under that employer, who has terminated him from service.
As to what is continuous service is well elucidated in Mohan Lal Vs. Management of Bharat Electronics Ltd., . in the following words:
... If he is in service for a period of one year and that if that service is continous service within the meaning of Sub-section(1) his case would be
governed by Sub-section(2). Sub-section (2) envisages a situation not governed by Sub-section(1). And Sub-section[2] provides for a fiction to
treat a workman in continuos service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one
year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the
relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in Sub-section (2)(a) it is necessary to
determine first the relevant date, i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move
backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the
workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the
deeming fiction enacted in Sub-section(2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he
will satisfy the eligibility qualification enacted in Section 25F.
The position is therefore, before the workman could be considered for completed one year of continuous service in the management, it must be
shown first that he was employed for a period of not less than 12 calendar months and next, during those 12 calendar months, he had worked for
not less than 240 days.
The question falling for consideration is whether the second Respondent has satisfied the above two requirements. The learned Counsel for the
Management has submitted that the burden of proof was on the second Respondent to show that he had worked for 240 days in the preceding 12
months prior to his alleged termination, and that the second Respondent workman in the present case has not adduced evidence supporting his
case for having worked for 240 days within the meaning of ''continuous service'', as defined u/s 25-B of the I.D. Act.
For the proposition that onus of proof lies upon the workman, to prove that he had worked for 240 days, within the meaning of ''continuous
service'', as defined u/s 25-B of the Act, the learned Counsel for the Petitioner Management has placed reliance upon R.M. Yellatti Vs. The
Assistant Executive Engineer, . After referring to a catena of decisions on the subject, in the above decision, the Supreme Court has held thus:
Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s 10
of the Industrial Disputes Act. However, applying general principles and on reading the aforesaid judgments, we find that this Court has
repeadtedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in the given year. This burden is
discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral
and documentary. In cases of termination of services of daily waged earners, there will be no letter of appointment or termination. There will also
be no receipt or proof of payment. Thus in most cases, the workman [the claimant] can only call upon the employer to produce before the Court
the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing
of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits
or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to
prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se
without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not
interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of
each case.
In the Claim Petition, the second Respondent has only claimed that he had continuously worked in the Petitioner Management for fourteen
years from 16.08.1983 till June 1997, as a temporary candidate. No where in the Petition, it was alleged that the second Respondent worked for
240 days in continuos service, within the meaning of Section 25-B of the Act. The learned Counsel for the second Respondent has submitted the
typed set of papers containing the documents produced before the Labour Court. By consideration of those documents, it is seen that Document
No. 1 is regarding the payment made as wages for the period from 1983 to 1985. All other documents relate only to the period between 1984 to
1994. Document No. 9 relates to the self-cheque drawn on Canara Bank dated 11.03.1995. None of the documents relate to the period
preceding 12 months, prior to June 1997 the alleged Termination. In other words, the second Respondent has not adduced any evidence showing
that he had worked for twelve months preceding the date of retrenchment i.e. June 1997. The averment in the affidavit that he second Respondent
continuously worked for fourteen years would not satisfy the requirement of ""continuos service"" within the meaning of Section 25-B.
In Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another, , the Supreme Court has held:
15.The workman had alleged that he had worked for more than 24 days in the year concerned, which claim was denied by the management. The
workman had merely filed an affidavit in support of his case. Therefore, the Division Bench of this Court took the view that it was for the claimant
to lead evidence to show that he had worked for 24o days in the year preceding his termination. This Court observed that filing of an affidavit was
not enough because the affidavit contained self-serving statement of the workman which cannot be regarded as sufficient evidence for any Court or
tribunal to come to the conclusion that the claimant had worked for 240 days in a year. Further, this Court found that there was no proof of receipt
of salary or wages for 240 days and, therefore, mere non-production of the muster roll for a particular period was not sufficient for the Labour
Court to hold that the workman had worked for 240 days as claimed. On the facts of that case, the Court found that even if the period for which
the workman had alleged to have worked was taken into account, as mentioned in his affidavit, still the said workman did not fulfil the requirement
of completion of 240 days of service and, therefore, this Court set aside the award of the Labour Court.
The second Respondent seeks permanent employment primarily on the ground that he has put in continuous service of fourteen years and
discontinuance of service amounted to retrenchment/termination, without following the legal requirements. The averments in the Claim Petition or
the claim of the Respondent that he continuously worked for fourteen years would not satisfy the requirements of Section 25-F. No material was
produced by the second Respondent to establish the fact that he had worked for 240 days continuously in the preceding 12 months prior to his
termination. The Labour Court had not examined the documents produced by the workman in the context of working for 240 days continuously in
a given year. In fact, the Labour Court has not at all recorded any finding as to the working of the second Respondent for 240 days continuously
prior to June 1997. While so, the order of reinstatement is perverse and cannot be sustained.
Even according to the second Respondent, he was working on daily wage basis. The second Respondent having been appointed as daily wage
earner and not as a permanent employee, he cannot claim any right to the post, nor reinstatement. In a similar case, where the worker on daily
wages who had not completed 240 days in service, setting aside the order passed by the Labour Court and the High Court, the Supreme Court in
H.U.D.A. Vs. Jagmal Singh, has held thus:
We are unable to appreciate the approach made by the Labour Court in calculating the statutory period of 240 days in a year. In our opinion,
both the labour Court and the High Court have failed to appreciate the fact that the Respondent has failed to complete the statutory period of 240
days in a year to entitle him for claiming any benefits whatsoever. As already noticed, evidence has been led to the said fact before the labour
Court but still the issue of attendance of the Respondent has been decided in his favour. This apart, the Respondent was appointed only as a daily
-wage earner and not as a permanent employee of the appellant and hence the Respondent cannot claim any right to the post in question and that
no right has accrued to him to claim any benefits from the appellant. This fact has been overlooked by the labour Court and also by the High
Court. The fact remains that the Respondent has not worked for the statutory period of 240 days which has been clearly established by the
appellant. It is settled law that the workman has to prove that he had worked for 240 days. In the instant case, the workman has not established
that he has served the appellant for the statutory period of 240 days.
In the case on hand also, the Labour Court, without recording any reasons as to the completion of continuous service, ordered regularization of
service, observing that the State has to be a model employer. This Court is constrained to observe that such a direction given by the Labour Court
to reinstate the second Respondent in any one of the post is nothing but assumption of excessive jurisdiction.
The main contention urged by the second Respondent is that the services of the similarly placed workman were ordered to be reinstated by the
Labour Court Madurai, challenging which the Management had filed Writ Petition No. 5057/1992 and other batch of Writ Petitions. Justice P.
Sathasivam has dismissed those Writ Petitions and Writ Appeal preferred against that order was also dismissed by the First Bench of this Court.
The learned Counsel for the second Respondent has submitted that when similarly placed workmen were ordered to be reinstated, the second
Respondent alone cannot be singled out. In the said case, in Writ Petition No. 5057/2002, the concerned employee - Balu had raised a Industrial
Dispute even as early as in 1988 in I.D. No. 111/1988. In consideration of the facts and evidence adduced in that case, the Labour Court has
found that his services were illegally terminated and in that factual background of the case, Justice P. Sathasivam has dismissed the batch of Writ
Petitions. In the case of hand, there is a dearth of evidence showing workman''s continuous working of 240 days. Hence it cannot be stated that
the instant case is covered by the said Judgment.
The order of reinstatement with continuity of service and other benefits is improper assumption of jurisdiction. Order passed by the Labour
Court is liable to be set aside and this Writ Petition is to be allowed.
This Writ Petition is allowed and the impugned Award of the first respondent made in I.D. No. 734 of 1997 dated 31.8.2000 is set aside.
However, it is made clear that the direction in W.P. No. 15051/1991 shall continue to hold good.