M.Venkatesan v. Management of Tamil Nadu State Transport Corporation

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.09.2023 CORAM THE HON'BLE MR. JUSTICE S. VAIDYANATHAN AND THE HON'BLE MR. JUSTICE K. RAJASEKAR W.A. Nos. 2233, 2235, 2261, 2264, 2267, 2268, 2269, 2271, 2272, 2273 & 2275 of 2023 & C.M.P. Nos.19382, 19385, 19443, 19456, 19467, 19477, 19479, 19485, 19488, 19494 & 19510 of 2023 W.A. No. 2233 of 2023 M. Venkatesan ..Appellant Vs.

¶1Management of Tamil Nadu State Transport Corporation, (Coimbatore Division II) Ltd., Chennimalai Road, Erode – I, (Rep. by its General Manager)

¶2The Presiding Officer, Labour Court, Salem. ..Respondents Prayer: Writ Appeal as against the order dated 14.11.2019 passed in 1\26 W.P. No. 27059 of 2015. For Appellant :: Mr.P. Vetrivel For Respondents :: Mr. Murali Vinoth for R1 R2 Court COMMON JUDGMENT (Delivered by S. Vaidyanathan,J.) The present appeals have been preferred by workmen, numbering eleven, as against the order dated 14.11.2019 passed in W.P. Nos. 27059, 27061, 17062, 17063, 27060, 27057, 27056, 27064, 27065, 27053 & 27055 of 2015 respectively.

¶2The case of the workmen is that they were engaged as casual employees in the post of Conductors/Drivers/Sanitary Workers, as the case may be, on various dates by the 1st respondent Corporation. The date of entry into service, the date of termination and other particulars including the date of birth of each of the employees/appellants are given below: 2\26 Sl W.A.No Name W.P. No. ID No. Date of joining Date of termina-tion DOB Age as on Septem-ber 1,2023 2233/23 M.Venkatesan 27059/15 314/2003 01.02.1994 02.02.2000

13.05.1972 51y 3m 19d 2235/23 Venkatesh 27061/15 274/2000 01.12.1995 30.06.1998

20.05.1976 47y 3m 12d 2261/23 Subramanian 27062/15 358/2001 07.11.1993 12.06.1996

18.11.1963 65y 2m 19d 2264/23 Vengada-chalapathi 27063/15 77/2001

04.11.1993 27.10.1998

06.10.1960 62y 10m 26d 2267/23 P. Arumugam 27060/15 645/2001 01.07.1996 15.09.1998

15.06.1967 56y 2m 17d 2268/23 K. Arjunan 27057/15 356/2001 01.11.1993 25.10.1998 Died 2269/23 V.Bala-krishnan 27056/15 355/2001 08.05.1994 16.07.1996

20.04.1967 56y 4m 12d 2271/23 Anbazhagan 27064/15 469/2000 06.11.1993 16.07.1996

09.05.1965 58y 3m 23d 2272/23 R.Subramania n 27065/15 11/2002

12.06.1996 01.11.1998

18.11.1963 59y 9m 14d 10 2273/23 K. Raja-rathinam 27053/15 368/1999 12.02.1993 07.07.1999

20.05.1973 50y 3m 12d 11 2275/23 P. Madhavan @ Madhan 27055/15 316/2001 1995

01.12.2000

20.06.1973 50y 2m 12d After extracting work, they were orally terminated without any enquiry by the respondent Corporation. Aggrieved by the said termination, the employees approached the Labour Court by way of I.D.Nos. 314/2003, 274/2000, 358/2001, 77/2001, 645/2001, 356/2001, 355/2001, 469/2000, 11/2002, 368/1999 & 316/2001 respectively and by award dated

06.09.2012, the Labour Court allowed the I.D.s in part, setting aside the 3\26 order of illegal termination and directing the employer to provide employment as fresh entrant within a period of 2 months after taking into account the physical fitness and educational qualification of the employees with continuity of service and without backwages. Challenging the said award, the Corporation filed writ petitions before this Court and the learned Single Judge, after careful consideration of the factual matrices, findings rendered by the Labour Court and various judgments of the Hon'ble Apex Court, quashed the award passed by the Labour Court and allowed the writ petitions. Questioning the same, the employees are before this Court in the present writ appeals.

¶3The main contention of the appellants is that as they had completed 240 days of continuous service in a period of 12 calendar months, on the date of termination, the action of the employer is in non-compliance of the provisions of Section 25-F of Industrial Disputes Act, 1947 (I.D.Act in short), which vitiates the order of termination. That apart, after the disengagement of the workmen concerned, new hands have been inducted and the employer has violated Section 25-H of I.D. Act, 1947. It was also the stand of the appellants that the Management had intentionally not 4\26 produced documents with regard to the service rendered by the employees stating that the documents got destroyed, without any proof whatsoever, so as to deprive the workmen from getting the benefit of permanent absorption and the learned Single Judge failed to consider the same and also the findings of the Labour Court in this regard.

¶4The contention of the Management was that as the regular employees of the Corporation threatened to go on strike and in order to prevent hardship and inconvenience that may be caused to the public due to the imminent strike, casual labourers were engaged during different periods, on daily wages basis, the details of which have been tabulated supra. As the employees were appointed on ad hoc basis, the length of service was not at all relevant. The employees/appellants have not completed 240 days of continuous service in a period of 12 calendar months as per Section 25B of I.D. Act, 1947. Moreover, the employees have been engaged on daily wages and on need basis and that the employees have been recruited based on the interview letter from the Corporation without reference to the employment exchange, in an emergency situation and therefore, the employees are not entitled to permanent employment. If the claim of the employees is 5\26 considered, it would amount to backdoor entry and only in respect of those employees, who were appointed after following the recruitment rules, confirmation could be considered on completion of 240 days in one year of their service and therefore, the appellants, who were engaged as casual labourers, on ad hoc basis, based on the emergency situation that prevailed, cannot claim permanency and they cannot claim any relief under Section 25-F and 25-H of I.D. Act, 1947. It is the further contention of the Management that the employees were clearly informed that their engagement would cease once the need ceases.

¶5Heard the learned counsel for the parties.

¶6The stand of the employees is that though were engaged as casual labourers, having completed 240 days of continuous service in a period of 12 calendar months, their termination is illegal and violative of provisions of I.D.Act, 1947 and they should be given permanent absorption while the Management would refute the same stating that persons, who were engaged on ad hoc basis and who have not completed 240 days of continuous service, cannot claim the relief of permanency. Aggrieved by the orders of termination, the employees had raised industrial disputes before 6\26 the Labour Court on different dates. Some of them had raised industrial disputes within a short period while some of them had raised industrial disputes after a period of 5 years. The Labour Court came to the conclusion that though it is true that the employees have produced documents before the Court, there is no iota of evidence to show that they have rendered 240 days of continuous service during the last one year prior to the date of termination and hence, the employees cannot contend that there is violation of Section 25-F of I.D.Act, 1947.

¶7In paragraph No.21 of the award, the Labour Court has rendered a finding that though these employees have proved that they were employed as daily rated workmen, they have failed to prove that they have rendered 240 days of continuous service during the last one year. The relevant portion of the said finding is extracted hereunder: @21) Mf kDjhuh;fs; jug;gpy; tprhuiz bra;ag;gl;l rhl;rpfs; thapyhft[k; mth;fshy; jhf;fy; bra;ag;gl;l rhd;whtz';fs; thapyhft[k; kDjhuh;fs; vjph;kDjhuh; eph;thfj;jpy; jpdf;Typfshf gzpg[hpe;Js;shh; vd;w Tw;W bka;g;gpf;fg;gl;Ls;snj jtpu. gzpePf;fk; bra;tjw;F Ke;ija tUlj;jpy; 240 ehl;fs; ntiy bra;jhh;fs; vd;W fz;lwpa[k;

Kfkhf

kDjhuh;fs;

jug;g[

rhl;rpa rhd;whtz';fs; mikatpy;iy/@ 7\26

¶8With regard to the contention that the documents have been destroyed, due to passage of time, the said contention of the Management was rejected on the ground that there was no evidence produced that the documents were destroyed and M.W.1, in fact, admitted that documents pertaining to daily rated labourers were available. The Labour Court, in its award, has discussed about evidence of M.W.1 regarding the maintenance and destruction of records and though it was categorically argued before the Labour Court, on behalf of the Management, that the documents pertaining to the daily rated workmen were destroyed, taking into account, the totality of circumstances, the Labour Court passed the award directing the employer to provide employment to the workmen as new entrants within a period of 2 months after taking into account the physical fitness and educational qualification and provide them with continuity of service without any backwages.

¶9The Labour Court disbelieved the version of the employees that they were without employment ever since the date of termination. The 8\26 portion of the award insofar as it declined the relief to the workmen is concerned, it has become final. Insofar as the relief that has been granted to the workmen, the Management filed writ petitions challenging the award. The learned Single Judge, after discussing the facts mentioned supra, came to the conclusion that Transport Corporation is a public utility service and that employees have been engaged sporadically as and when there was a need. The learned counsel for the Management, before the learned Single Judge, relied on the judgment of the Apex Court rendered in Tamil Nadu State Transport Corporation limited V. K. Kothandaraman (Civil Appeal No. 6582 of 2010) wherein it was held that the employees, who have rendered less than 240 days of continuous service in a period of 24 calendar months would not be entitled to regularisation in a permanent post. The learned Single Judge has also relied upon the judgment of Constitution Bench of Hon'ble Apex Court in the case of State of Karnataka V.Uma Devi reported in (2006) 4 SCC 1) and declined the relief on the ground that backdoor entry cannot be permitted. He has also quoted the conclusion arrived at by the Labourt Court at paragraph No.15 of the award that the employees have not completed 240 days of continuous service during the last 9\26 one year as contended by them. The said conclusion of the Labour Court is reproduced hereunder: @15/ /////////////////nkw;brhd;d Mtz';fis xU';fpize;J ghprPypj;J ghh;f;Fk; nghJ nkw;brhd;d Mtz';fs; thapyhf kDjhuh; gzpePf;fk; bra;tjw;F Ke;ija Mz;oy; 240 ehl;fs; ntiy bra;jhh; vd Kot[ bra;a ,ayhJ/ Mdhy; nkw;brhd;d miHg;gpd; mog;gilapy; kDjhuUf;F gzp tH';ftpy;iy vd;W kDjhuh; jug;gpnyna

xg;g[f;bfhs;sg;gl;Ls;sJ

vd;gij ghh;itapLk; nghJ kDjhuh; epue;ju bjhHpyhspahf Mf;fg;gLtjw;Fhpa jFjpia bfhz;oUf;ftpy;iy vd;gJ bjspthf bjhpatUfpwJ/@ The learned Single Judge came to the conclusion, by perusing the award, that the workmen have not established the fact that they have rendered 240 days of continous service in one year prior to the date of termination; that the workmen have also not proved the length of service of 240 days prior to the date of termination. Having rendered such a finding, the learned Single Judge was of the view that there was no reason for the Labour Court to arrive at the conclusion that the employees were entitled to the relief of permanent absorption. 10\26

¶10With regard to burden of proof, the learned Single Judge has held that the same cannot be shifted from the workmen to the Management and the burden is on the employee/person, who approached this Court to prove his case. In the absence of such proof, the Labour Court ought not to have granted permanent employment. The learned Single Judge has referred to the judgment of the Apex Court in Life Insurance of India V. R. Dhandapani reported in (2006) 13 SCC 313 that deals with proportionality of punishment. While dealing with the issue, the Apex Court has held that there should not be any misplaced sympathy. That judgment may not be applicable to the facts of this case as this is not a case of misconduct and it is true that no misplaced sympathy can be shown in case there is no violation of law by the employer. Following the decision of the Apex Court mentioned supra, the learned Single Judge has set aside the award and allowed the writ petitions. Aggrieved by the order of the learned Single Judge dated 14.11.2019, the present appeals have been filed. The employees have approached this Court by filing these appeals with a delay of 1304 days each and while condoning the delay by order dated 07.08.2023, this Court 11\26 has observed as follows: "It is made clear that the period during which there was delay in filing each of the writ appeals will not be counted for the purpose of continuity of service, backwages or any other monetary benefits in respect of the workman concerned."

¶11On 04.09.2023, in order to find out the feasibility of settlement, this Court has passed the following order: "The Labour Court granted the relief of reinstatement of workmen as freshers, however granted continuity of service. The Labour Court also held that the workmen should satisfy the fitness and age criteria in terms of the Standing Orders and the selection process for the purpose of selection as drivers. The said award of the Labour Court was challenged which was interfered with by the Single Bench on 14.11.2019. It was represented that Arjunan, appellant in W.A. No.2268 of 2023 is no more and hence, time may be sought for filing a substitution petition to bring the legal heirs of the deceased on record. This Court also suggested to the Management to find out the feasibility of accommodating these drivers in terms of 12\26 the award of the Labour Court so that shortage of drivers could be reduced, however, subject to the conditions specified in the award and that the drivers are in no way entitled to backwages in terms of the award. The list produced before us would show that out of 11 workmen, six or seven workmen would be entitled to be considered and others have already attained the age of superannuation. The Management may also think of extending Gratuity to the workmen, depending upon the years of service rendered by them. The learned counsel for the Transport Corporation submitted that he would ascertain the feasibility of accepting the aforesaid suggestion put forth by this Court. Post on 11.09.2023 enabling the appellant in W.A. No.2268 of 2023 to file a petition to bring on record the legal heirs of the deceased. However, learned counsel appearing for the Management stated that the Management is not willing to extend the benefits as these employees have not completed 240 days in one calendar year and not entitled to any 13\26 relief.

¶12Admittedly, these employees were employed to tide over the crisis caused due to the strike by permanent employees and to prevent any hardship or inconvenience being caused to the passengers owing to the strike. These employees were not recruited by calling for names from the employment exchange. However, in the light of the judgment of the Hon'ble Apex Court rendered in Excise Superintendent, Malkapatnam, Krishna District, Andhra Pradesh V. K.B.N. Visweshwara Rao & Others reported in 1996 6 SCC 216, Employment Exchange cannot be the only source of recruitment. In the instant case, in order to overcome the crisis of strike by permanent employees, the appellants were engaged. Though the employees produced 71 documents before the Labour Court to prove that they have served the Corporation, as per the findings of the Labour Court and the findings of the learned Single Judge, they have not established that they had completed 240 days of continuous service during the last year prior to the date of termination. A reading of Section 25-F (b) of I.D. Act would make it very clear that for every completed year of continuous service, compensation equivalent to 15 days average pay has to be paid. The said provision is 14\26 extracted hereunder: "25F. Conditions precedent to retrenchment of workmen.- ...

(b) No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service] or any part thereof in excess of six months; and..." Further, for the sake of convenience, Sections 25-B, 25-F and 25-H of I.D.Act, 1947 are extracted hereunder: 15\26 16\26 17\26 18\26 "25-H Re-employment of retrenched workmen:- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner, as may be prescribed, give an opportunity 1[to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen] who offer themselves for re-employment shall have preference over other persons." 1Subs. By Act 36 of 1964, s. 16 for certain words ( with effect from 19th December, 1964.)

¶13Admittedly, the compensation as contemplated under Section 25-F(b) of the I.D. Act, 1947 has not been paid. Even assuming that the appointment of the appellants is irregular, in the light of the judgment of this Court rendered in Srirangam Co-operative Urban Bank Ltd., Srirangam V. Labour Court, Madurai and another reported in (1996) 2 LLJ 216, the employer ought to have complied with Secton 25-F of I.D.Act, 1947, which has also not been done. It is no doubt true that the burden is on the employees to prove that they have completed 240 days of continuous service. Once the documents are called for from the employer to be produced before the Labour Court, the burden shifts on the employer and it is for the 19\26 employer to produce documents to disprove the case of the employees. A Three Judges' Bench of the Hon'ble Apex Court, in the judgment rendered in Manager, R.B.I. Bangalore V. S. Mani, held that the initial burden is on the workman to show that he has completed 240 days of service and once the workman discharges his burden, it shifts on the employer and when the documents are with the employer, the burden is on the employer to produce the same and the employer cannot keep all the documents close to his chest. In the present case on hand, the employer has taken a stand that the documents were destroyed and there is also an admission by P.W.1 that the application seeking production of documents has been made after a period of 15 years. Eventhough the Labour Court has rendered a finding that the employer failed to produce any document to show that the employees have not worked for 240 days, when the employees have raised industrial disputes, more so, in many cases, less than 3 years time, a duty is cast upon the employer to retain those records till the dispute is over. For reasons best known to the employer, the employer has not produced the same, but contends that the documents have been destroyed. As the date of destruction has not been specifically proved, especially by the employer, the 20\26 plea of the employer was turned down by the Labour Court. Some of the employees have been disengaged during the period 1998 and 2000 and they have raised the dispute within a period of three years. Barring two cases, where the termination took place in 1996, in rest of the cases, the disputes have been raised within a period of 3 years and there is no occasion for the Managment to destroy the records. Even if it was so, the employer had not produced any records pertaining to destruction. Furthermore, the limitation prescribed by means of an amendment with effect from 16.09.2010 stipulating maximum period of 3 years for raising a dispute may not be applicable to the facts of this case as the termination has occurred prior to the said amendment.

¶14The finding of the learned Single Judge by placing reliance upon Uma Devi's case cannot be sustained as in that case, the writ petition was filed directly whereas in the present case on hand, industrial disputes have been raised and evidence has been let in and in the light of the judgment of this Court reported in (1996) 2 LLJ 216 mentioned supra, even assuming that the nature of employment viz., whether legally made or not or an 21\26 irregular appointment or an appointment by a person not competent to appoint would not be a ground to refuse to follow the provisions contained in Section 25-F of I.D. Act, 1947. Therefore, compliance of Section 25-F, more so, Section 25-F(d) of the I.D.Act is mandatory. That apart, a reading of last paragraph of the award of the Labour Court would make it clear that the industrial disputes were allowed in part, setting aside the order of illegal termination and the employer was directed to provide employment to the employees in the post concerned as fresh entrants within a period of 2 months after taking into account the physical fitness and educational qualification of the employees with continuity of service and without backwages. The operative portion of the award of the Labour Court is extracted hereunder: @,Wjpahf kDf;fs; gFjpahf mDkjpf;fg;gLfpd;wd/ ,d;wpypUe;J ,uz;L khj';fSf;Fs; epiyahizap;y; Fwpg;gpl;Ls;s cly; jFjp kw;Wk; fy;tp jFjp Mfpatw;iw kDjhuh;fs; bfhz;oUg;gpd; vjph;kDjhuh; eph;thfk; g[jpajhf gzpj;bjhlh;r;rpa[ld; gzp epakdk; bra;a

cj;jutplg;gLfpwJ/

gpd;rk;gsj;ij bghWj;jtiu fle;j gy tUl';fshf elj;Jdh; kw;Wk; Xl;Ldh; jFjpia bfhz;l kDjhuh;fs; gzpapy;yhky; 22\26 ,Uf;fpwhh;fs;

vd

TWtJ

mog;gilapnyna ek;g[k;goahf mikatpy;iy/ Mf No work No pay vd;w mog;gilapy; kDjhuh;fs; gpd; rk;gsk; bgWtjw;F jFjpaw;wth;fs;

vd

Kot[

bra;J

jPh;tk; gpwg;gpf;fg;gLfpwJ/" The Labour Court has deprived backwages in full and directed the employees to be reinstated as fresh entrants, however,with continuity of service.

¶15The Labour Court has also disbelieved the contention of the employees that they were not gainfully employed. As stated supra, this finding has become final and the employees have not challenged the same. Even assuming for the sake of argument that the employees, who were working as drivers were without employment, it will not be advisable to put them back into service as drivers, considering the age factor, as the lives of passengers and pedestrians cannot be put at stake and therefore, we are not inclined to grant the relief of reinstatement to the appellants in W.A. Nos 2267 & 2272 of 2023, who were engaged as Drivers. The case of employees, namely, M. Venkatesan, Venkatesh, Rajarathinam and 23\26 Madhavan @ Madhan, who are less than 52 years of age can be considered for employment, in the light of the award of the Labour Court. As Subramanian (appellant in W.A. No. 2261/2023) and Vengadachalapathi (appellant in W.A. No. 2264/2023) have already attained the age of superannuation, though there is non-compliance of Section 25-F of I.D.Act, putting them back into service does not arise. The Management is directed to pay compensation of Rs.2 lakhs each to the said employees in lieu of reinstatement. Insofar as others are concerned, except Arjunan, who is no more, compensation of Rs 2 lakhs each shall be paid. Since Arjunan is no more and his legal heirs have been brought on record, the legal heirs are entitled to receive aforesaid compensation of Rs.2 lakhs on proportionate basis depending upon the personal laws applicable. The Management shall consider the case of M. Venkatesan, Venkatesh, K. Rajarathinam and P. Madhavan @ Madhan for reinstatement, as per the award of the Labour Court and pass approriate orders within a period of three months from the date of receipt of a copy of this order. Insofar as these persons are concerned, they are entitled to continuity of service only for the purpose of terminal benefits. We reiterate that the period of delay will be excluded for 24\26 all purposes in the light of the order dated 07.08.2023 passed by this Court.

¶16The writ appeals are disposed of accordingly. No costs. Connected C.M.P.s are closed. (S.V.N.J.) (K.R.S.J.) nv

11.09.2023 Index: Yes/No Internet: Yes/No To

¶1The General Manager, Management of Tamil Nadu State Transport Corporation, (Coimbatore Division II) Ltd., Chennimalai Road, Erode – I,

¶2The Presiding Officer, Labour Court, Salem. S. VAIDYANATHAN,J. AND 25\26 K. RAJASEKAR,J. nv

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