SEKAR REPORTER

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Full order THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.19896 of 2002 and WMP.No.27455 of 2002 The Managing Director, Tamil Nadu State Transport Corporation (Salem Division I) Ltd.,

by ·

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED: 22.06.2021

 

CORAM

 

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

 

W.P.No.19896 of 2002

and WMP.No.27455 of 2002

The Managing Director,

Tamil Nadu State Transport Corporation

(Salem Division I) Ltd.,

Salem.                                                                      … Petitioner

-vs-

  1. The Inspector of Labour

Salem.

  1. C.Gunasekaran                    … Respondents

Prayer: Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Certiorari calling for the records relating to the order passed by the 1st respondent in file No.B/753/2000 dated 11.09.2001 and quash the same.

For Petitioner               :        Mr.D.Raghu

For Respondents          :          No appearance

O R D E R

The Transport Corporation has filed the present writ petition challenging the order of the Inspector of Labour, an Authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (hereinafter called as ‘the Act, 1981) dated 11.09.2001 in File No.B/753/2000.

  1. The contention of the Management is a four folded, namely, a) the employee was a Casual Labourer, b) he had rendered services only for 370 days from 01.01.1996 to 18.05.1997, c) the erstwhile Managing Director appointed him and d) any recruitment has got to be made only through Employment Exchange and the 2nd Respondent’s entry into service is a back door entry.

 

  1. The Authority, after going through the records, came to the conclusion that the employee has completed 480 days of continuous service in a period of 24 calendar months and is entitled to permanent status. A reading of the order would make it very clear that the Management produced certain documents and sought further time to produce a list of other documents. However, on the next date of hearing, the Management neither produced any documents nor disputed the factum of appointment of R2 as the Casual Labourer.

 

  1. It is to be noted that in terms of Rule 6 of The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Rules, 1981, the list of Casual Labourers must be forwarded to the Authority concerned once in six months. There is no iota of evidence that such exercise has been followed in the present case. Since the documents available with the Management have not been produced and that it has been held by the Authority that purposely, the names have not been registered in the record that has been produced and that there is a wrong intention on the part of the Management to disclose the names, which is a finding of fact and the relevant portion of the order is extracted hereunder”

rp/vy; bjhHpyhsh;fs; gzpepue;juk; bjhlh;ghf nryk; bjhHpyhsh; Jiz Mizah; Kd;ghf eilbgw;w ghprPyidapy; kDjhuh; rp/vy;/Mf gzpg[hpe;J fhzg;gltpy;iybad;Wk;. Kdjhuh; gzpg[hpe;jikf;fhd ,lk; fpis cs;spl;l tptu’;fis mspj;jhy; kl;Lnk mth; gzpg[hpe;jhuh vd;gJ gw;wp ghprPypf;ftpaYbkd;why; eph;thfk; bjhptpj;jJ/ kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;l brYj;jpajw;fhd urPJfis jtpu ,ju Mtz’;fs; eph;thfj;jpy; bghWg;gpnyna cs;sd vd;Wk; mtw;iw Ma;thsh; bgw;W ghprPyid bra;jhy; jhd; gzpg[hpe;J tptu’;fs; bjhpatUbkd;Wk; bjhptpf;fg;gl;lJ/ ,jd; nghpy; kDjhuh; gzpg[hpe;jikf;fhd tptu’;fis mwpa[k; bghUl;L nryk; giHa ngUe;J epiyak; kw;Wk; XkY}h; g!; epiyak; Mfpatw;wpy; guhkhpf;fg;gLk; fz;l;nuhy; rhh;l;, ilkp’; rhh;l;, gazg;gl;oay; ,d;tha;!; kw;Wk; of;fl; g[f; Mfpatw;iw jhf;fy; bra;a[khW vjph;kDjhuUf;F miHg;ghid mDg;ggl;lJ/ Mdhy; ,e;j Mtd’;fs; vjph;kDjhuUf;F miHg;ghiz mDg;gg;gl;lJ/ Mdhy; ,e;j Mtz’;fs; vjph;kDjhuuhy; jhf;fy; bra;ag;gltpy;iy/

Though the word ‘unfair labour practice’ has not been specifically mentioned in the order, it has been observed as follows:

kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;l gzk; brYj;jpajw;fhd urPJfs;. neug;gl;oay; Mfpatw;iwf;bfhz;LK; nfhhpa Mtz’;fis vjph;kDjhuh; eph;thfk; jhf;fy; bra;ahikahYk; kDjhuh; ,e;j epWtdj;jpy; gzpg[hpe;Js;shh; vd;w Kotpw;F tUfpnwd;/

kDjhuh; 24 khj’;fspy;480 ehl;fs; gzpg[hpe;jhuh vd;gJ bjhlh;ghf kDjhuh; 1995 Kjy; 1999 tiu jhd; gzpg[hpe;jnghJ ngUe;jpy; gazf;fl;lzty;  bjhifapid eph;thfj;jpy; brYj;jpaikf;fhd urPJfis jhf;fy; bra;Js;shh;/ 1995Mk; Mz;ow;Fhpa nkw;go urPJfspy; kl;Lnk kDjhuh; bgah; ,lk;bgw;Ws;sd/ ,ju urPJfspy; bgah; ,lk; bgwtpy;iybad;whDk; kDjhuh; mth; ifg;gl me;j urPJfspy; vGjpa[s;sjhft[k; eph;thfk; ntz;Lbkd;nw bfl;l nehf;fj;Jld; bgahpid vGj mDkjpf;ftpy;iybad;Wk; bjhptpj;Js;sij ,’;F fUj;jpy; bfhs;sntz;oa[s;sJ/ 1995 Kjy; 1999 tiuapyhd kDjhuh; gzpg[hpe;jjhf bjhptpj;Js;s fhyj;jpy; eph;thfj;jhy; guhkhpf;fgLk; nkw;brhd;d Mtz’;fs eph;thfj;jhy; jhf;fy; bra;ag;gl;oUe;jhy; kDjhuhpd; gzpf;fhyk; mwpate;jpUf;Fk; me;j Mtz’;fis vjph;kDjhuh; eph;thfk; jhf;fy; bra;ahikahy; kDjhuhpd; gzpf;fhyk; bjhpe;Jtplf;TlhJ vd;w bfl;l nehf;fj;jpnyna eph;thfk; jhf;fy; bra;atpy;iy vd;W fUj ,lKs;sjhYk; kDjhuh; jhf;fy; bra;j 1995 Kjy; 1999 tiuapyhd nkw;go urPJfisf; bfhz;Lk; kDjhuh; 1995 Kjy; 1999 tiuapyhd ,ilg;gl;l fhyj;jpy; 24 khj’;fspy; 48 ehl;fSf;F nkyhf bjhlh;e;J gzpg[hpe;Js;shh; vd;w Kot[f;F te;J tpdh vz; xd;wpw;F jPh;t[ fhz;fpnwd;/

bjhlh;r;rpahf 24 khj’;fspy; 480 ehl;fSf;F nky; kDjhuh; gzpg[hpe;Js;shh; vd;W tpdh vz; xd;wpf;F nkw;fzlthW jPh;t[ fhzg;gl;ljhy; kDjhuh; gzpepue;juk; bra;ag;gl jFjpahdth; vd;W tpdh vz; 2w;F Kot[ fhz;fpnwd;/

  1. From the above, it is clear that the documents sought for have not been produced by the Management and therefore, the 1st Respondent drew adverse inference against the Management and granted the relief as early as on 11.09.2001. Now, almost two decades have gone-by from the date of the order. The contention of the Management that they are willing to produce the documents now, cannot be entertained at this stage. Though the Petitioner / Management, at the time of argument, stated that this Court is empowered to call for the records at any stage of the proceedings, this Court is not inclined to accept the contention. When an opportunity was given and that the same has not been effectively utilised by the Management, the attempt of the Management to succeed at this distant point of time, cannot be sustainable, as this Court cannot go into the disputed question of fact and ascertain about the veracity of those documents at this stage. Moreover, there is no plea taken even in the affidavit that they are willing to produce the documents. Admittedly, the documents sought for by the Workman have not been produced by the Management. Of course, it is true that the initial burden is on the Workman to prove that he has rendered services for sufficient number of days, in terms of the judgment of Two Judges’ Bench of the Supreme Court in the case of Range Forest Officer Vs. S.T. Hadimani, reported in (2002) 3 SCC 25, wherein it was held as follows:

“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 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.”

The aforesaid judgment has been referred to by a Three Judges’ Bench of the  Apex Court in the subsequent judgment in Manager, Reserve Bank of India, Bangalore vs. S.Mani and Others, reported in (2005) 5 SCC 100, by holding as under:

“28…..The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the Appellant on the premise that they have failed to prove their plea of abandonment of service stating:

“It is admitted case of the parties that all the 1st parties under the references CR No. 1/92 to 11/92 have been appointed by the 2nd party as ticca mazdoors. As per the 1st parties, they had worked continuously from April, 1980 to December, 1982. But the 2nd party had denied the above said claim of continuous service of the 1st parties on the ground that the 1st parties has not been appointed as regular workmen but they were working only as temporary part time workers as ticca mazdoor and their services were required whenever necessary arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the 1st party, since the 2nd party had denied the above said claim of continuous period of service, it is for the 2nd party to prove through the records available with them as the relevant records could be available only with the 2nd party.”

The Tribunal, therefore, accepted that the Appellant had denied the Respondents’ claim as regard their continuous service.”

  1. In the present case on hand, admittedly, the Workman had sought for certain documents from the employer and though the employer had admitted that those documents are available with them, the documents have not been produced by the Management. The Karnataka High Court in the case of Siruguppa Sugars and Chemicals Limited, Gauribidanur vs. The Commissioner of Labour, Government of Karnataka and Others, reported in 2002 (3) LLN 465, held that even though the burden of proof is on the workmen, it is the management, who has the muster roll of the Workmen to produce the same that the Workmen are casual workers. To add further, Hon’ble Punjab and Haryana High Court in Madhusudan’s case, reported in 2003 (102) FJR 310 held that Bank is bound to produce the records, failing which the reference should be answered in favour of the Workman, by observing as follows:

“A party seeking equitable relief from the courts, has a bounden duty to disclose all material facts and documents which may have a bearing on the decision of the case. The party, be it the petitioner or the respondent, is not allowed to omit certain documents, which if disclosed, would perhaps lead to an unfavourable order being passed against that party. If by not disclosing such a document any favourable order is taken from the court, the same is liable to be rescinded / vacated on the correct facts being brought to the notice of the court.”

  1. This Court, in The Madras Race Club vs. M.Victor, reported in (2013) 8 MLJ 609, was pleased to hold as under:

“42…There is no difficulty in accepting the fact that a party to a dispute is entitled to raise all kinds of defence available under law. But they cannot be allowed to keep all cards close to their chest and non suit the workers from the civil court, only with a view eventually to non suit them even from the Labour Court.”

  1. Admittedly, the Management did not produce any document in support of their contention and withheld the evidence in their possession, which forced the Authority to rightly draw adverse inference against the Management and granted relief to the Workman. In this case, the Authority came to a definite finding that the employee concerned was a direct Labourer and not a contract Labourer, as alleged by the management. The Management invited trouble from their own hand so as to get an adverse order against them.

 

  1. This Court is of the view that no purpose would be served in permitting the Management now to produce the documents before this Court and remand the matter, after a lapse of two decades for scrutiny of records, which will make the entire provisions of the Act, being a Social Welfare Legislation, redundant and superfluous. In the considered opinion of this Court, the relief sought for by the Management cannot be granted and is to be negatived in limine.
 
  1. Accordingly, the Writ Petition is dismissed. Before parting with the order, this Court makes it very clear that in case the permanent status is not conferred on the Workmen, within a period of four months from the date of receipt of a copy of this order, as he is deemed to have attained the status of permanency, on completion of 480 days in a period of 24 calender months in terms of Section 3 of the 1981 Act, the Workman is entitled to file a complaint under the provisions of the Act for prosecuting the officials of the Management and the Government shall sanction prosecution so that the Officials can be punished by the concerned criminal Court and the issue can be brought to a logical end. Since the employee has been made to litigate for decades together, a cost of Rs.25,000/- is imposed on the Petitioner / Management, which shall be paid to Ghoshala, namely, Sri Vittal Rukmini Samsthan, Dakshina Pandaripuram, Govindapuram, Kumbakonam – 612 101 (Contact Person: Mr.K.Krishnamurthy, Mobile No.8825893004), by way of Cheque/DD/RTGS/NEFT/Bank Transfer (SBI A/c.No.39998936148; IFSC:SBIN0000691), within a period of one month from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.

22.06.2021

 

Index: Yes/No

Speaking order / Non speaking order

dpq

 

S.VAIDYANATHAN,J.,

dpq

 

 

To

The Inspector of Labour

Salem.

 

 

 

 

 

 

 

W.P.No.19896 of 2002

 

 

 

 

 

 

 

 

 

 

 

 

 

 

22.06.2021

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