to the writ petition:
2.1. It may be relevant to set out broadly the facts of the case. The petitioners were admittedly working as casual workmen in the resort of the Respondent/ Corporation at Mahabalipuram. Originally, there were 39 workmen who were on employment on casual basis and it is submitted that they were employed for more than 10 years. Their services were neither confirmed nor any statutory benefits extended other than the Provident Fund 3/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch Contribution. The petitioners filed an application before the appropriate authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to workmen) Act, 1981 (for the sake of brevity “Permanency Act”) on the premise that they were in continuous service with Respondent/ Corporation for more than 480 days in 24 Calendar months. The contention of the petitioners/ workmen was accepted and were made permanent in terms of Section 3 of the Permanency Act vide order dated 27.10.2000. The same was challenged by the Respondents herein in W.P. No.5981 of 2001 . The same was set aside with a direction to the Labour Inspector to re-do the proceedings after granting the Respondent-
Corporation adequate opportunity. The Respondent-Corporation was aggrieved by certain observations in particular para 7 of the order of this Court in W.P.5981 of 2001 and thus a Writ Appeal was preferred by the Respondent-Corporation in Writ Appeal No.1960 of 2010.
2.2. It may be relevant to state that during the pendency of the above writ proceeding, the petitioners were allegedly terminated. Pursuant thereto, the petitioners challenged their termination before the Industrial Labour Court on the premise that Section 25 F of the 'Industrial Disputes Act, 1947' 4/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch ( for the sake of convenience 'I.D.Act, 1947') was not complied with. The Labour Court, however, vide common order dated 27.05.2009 in I.D. Nos.20 to 41 of 2007 rejected the above contention of the petitioners/Workmen herein on the premise that the petitioners had stopped reporting to work on their own volition and therefore it would not constitute "retrenchment" within the meaning of
Section 2 (oo) of the I.D. Act, 1947 for Section 25 F of the said Act to get attracted. When the writ appeal in W.A.No.1960 of 2010 came up for hearing, in view of the subsequent developments viz., the disposal of proceeding under I.D. Act, 1947, the writ appeals were disposed by observing that it was open to both the parties to raise all contentions available to them. The above proceedings are set out only to give a broad overview of the litigation between the petitioners and Respondents thus far.
2.3. While it is the case of the Respondent/ Corporation that the workmen had stayed away from work on their own volition, to the contrary it is the case of the petitioners/workmen that the Respondent/ Corporation failed to provide work from December 2003 onwards and the same amounts to illegal retrenchment inasmuch as admittedly, the procedure contemplated 5/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch under Section 25 F of the I.D.Act, 1947 has not been complied with.
3.1. At this juncture, to put things in perspective, it may be relevant to note that the Respondent/ Corporation is a Government Company owned by the Government of Tamil Nadu formed in the year 1979, for the purposes of promoting tourism.
Article 66 (5) of the Articles of Association enables Respondent/ Corporation to frame Regulations governing the service condition of its workmen. Regulation 1.9 of the Service Regulations specifies that the competent authority can create posts and employment can be made only to the posts so created. In other words, any appointment by the Respondent/ Corporation ought to be made in consonance with the Policy of Recruitment set out in the Regulations and in conformity with the Reservation Policy framed/evolved by the Government from time to time.
3.2. The Corporation had a number of permanent posts viz., Manager, Accounts Officer, Accounts Assistant, Receptionist, Store Keeper, House Keeper, Electricians, Plumber, Room Boys, Gardener, Bill Clerk, Kitchen Assistants, Watchman, Attender, Cleaner and Lifesaver. The business of the Respondent being Tourism, is inherently seasonal in nature. Admittedly, the 6/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch peak season in the case of Respondent / Corporation was from December to March, when more manpower is required, though temporarily. As and when such additional man power requirements arose, the same was met by the Respondent/ Corporation by engaging casual workmen. These were basically arrangements prevalent during the period giving rise to issues under the I.D.Act, 1947.
4. Findings of the Labour Court:
The Labour Court rejected the case of the petitioners herein for reinstatement with continuity of service and other attendant benefits for the following reasons namely :-
(a) The petitioners failed to prove/ show that the petitioners were working with the Respondent/ Corporation until December, 2003. To the contrary, all the petitioners had stopped from work between 1997 and December 2001.
(b) That the petitioners' services were not terminated by the Respondent/ Corporation by refusing to give them work instead the petitioners/workmen stopped from work on their own volition and that there 7/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch was no retrenchment within the meaning of
Section 2 (oo) of the I.D.Act, 1947, for Section 25 F of the said Act to get attracted.
5. Case of the petitioners/workmen:
The order of the Labour Court is challenged primarily on the following grounds:
(a) The Respondent/ Corporation stopped giving work from December 2003, which amounted to retrenchment within the meaning of
Section 2(oo) of the I.D.Act, 1947.
(b) The said retrenchment was not made in conformity with
Section 25F of the I.D. Act, 1947 and thus bad and invalid.
(c) The Respondent/ Corporation has not let in evidence to show that the petitioners had not been in continuous service for more than 240 days in 12 calendar months, preceding December 2003 when the petitioners were allegedly stopped being given work.
(d) The case of the petitioner/workmen was that they were denied payment of Provident Fund Contribution apart from being stopped from work.
8/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch
(e) It was submitted by the petitioners before the Labour Court that they were willing to report to work without prejudice to their rights and claims made under the I.D.Act, 1947, which was not considered by the Labour Court.
6. Case of the Respondent/Corporation:
To the contrary, it was submitted by the Respondents that the petitioners were engaged as casual labourers by way of stop gap arrangement depending on the seasonal requirements of the Respondent/ Corporation and the workmen had stopped reporting to work on their own volition at different points of time between 1997 to 2001 and thus there is no retrenchment within the meaning of
Section 2 (oo) of the I.D. Act, 1947 for Section 25 F of the said Act to get attracted.
7. Issues For Consideration:
(a)Whether the petitioners left the services of the Respondent/Corporation on their own volition/accord.
(b) Whether in the facts of the case there is “retrenchment” within the 9/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch meaning of
Section 2 (oo) of the I.D. Act, 1947 thereby attracting Section 25 F of the I.D. Act, 1947.
(c) Whether the petitioners were in service in December 2003. when they were allegedly retrenched and were in continuous service for more than 240 days in 12 calender month prior thereto for Section 25 F of the I.D.Act, 1947 to get attracted.
8. Heard both sides, perused the materials on record and written submissions filed by both sides.
9.1. Before proceeding to examine the correctness/finding of the Labour Court it may be necessary to refer to the provisions of the I.D. Act, 1947 which may have a bearing on the issue that arises for consideration:
Section 25 F. in The Industrial Disputes Act 1947 “Conditions precedent to retrenchment of workmen- 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-
(a) the workman has been given one month' s notice in writing indicating the reasons for retrenchment and the 10/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
(b) 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
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette].” A reading of the above provision would show that two conditions ought to be fulfilled for the workmen to claim the protection of compliance with the procedure contemplated under Section 25 F of the I.D. Act, 1947 by the employer viz.,
(a) The workmen should have been in continuous service for not less than 1 year.
(b) The workmen ought to be have been retrenched by the employer.
The expression 'continuous service' has been defined under Section 25 B of the I.D. Act, 1947 which reads as under:- 11/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch “
Section 25B in The Industrial Disputes Act 1947 Definition of continuous service:-
For the purposes of this Chapter,--
(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer—
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) .....” A reading of the above provision would show that a workmen shall be deemed to have been in continuous service for a period of one year if the workmen during a period of 12 calendar months preceding the date with 12/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch reference to which calculation is to be made actually worked under the employer for not less than 240 days.
9.2. The expression “retrenchment” is defined under
Section 2 (oo)of the I.D.Act, 1947 which reads as under:-
“
Section 2(oo) of the Industrial Disputes Act, 1947- retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a)voluntary retirement of the workman; or
(b)retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf."
A reading of the above definition clause would show that to constitute “retrenchment” within the meaning of
Section 2(oo) of the I.D. Act, 1947, termination by the employer is a condition precedent.
9.3. On a reading of Section 25 F read with Section 25 B and 2 (oo) of the ID Act, 1947 it is clear that for Section 25 F of the said Act to get attracted, it is necessary to show that there was retrenchment within the meaning of
Section 2(oo) of the ID Act, 1947. Secondly, it must be shown that he was in continuous service for more than 240 days in 12 calendar 13/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch months with the employer.
10. If one tests the order of the Labour Court keeping the above aspects in mind, it appears that the order of the Labour Court does not suffer from any infirmity as would be evident from the following and thus does not warrant any interference:
A. Finding of Labour Court that workmen/petitioners stopped from work on their own volition – Finding of fact – Based on evidence:
The Labour Court held that the workmen stopped from work on their own volition for varied reasons and there was no termination by the Respondent Corporation and consequently there was no “retrenchment” within the meaning of
Section 2 (oo) of the I.D. Act,1947 to attract Section 25 F of the I.D. Act, 1947. The above conclusion which is essentially one of fact was arrived at by the Labour Court on the basis of the evidence/materials to conclude that none of the petitioners satisfied the pre- requisite of being retrenched within the meaning of
Section 2 (oo) of the ID Act, 1947. Instead it was found that the petitioners had stopped from work on their own volition much prior to 2003 when the petitioners claimed that 14/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch the Respondent stopped giving them work.
It is incumbent on the part of the petitioners to prove/ show the following two aspects viz., (a) that they were in service until Dec' 03 and (b) secondly prove that the petitioners were in continuous service for more than 240 days during a period of 12 calendar months preceding the date with reference to which calculation is to be made i.e., December 2003 in the present case, when the petitioners were allegedly terminated/ retrenched.
A perusal of the order of the Labour Court would reveal that after taking into account the evidence and material on record the Labour Court had arrived at a finding that the petitioners had stopped from work on their own volition as would be evident from the following findings of the Labour Court and thus there was no retrenchment within the meaning of
Section 2(oo) of the I.D. Act, 1947 and thus Section 25 F of the said Act is inapplicable.
(a) The Labour Court found that insofar as the following petitioners:
M.W.1 had deposed that on 01.11.2001 they met and informed him that in view of low wages, they were not reporting for work henceforth. The same remains unchallenged by way of a cross-examination of M.W.1. Thus, the Labour Court found that the petitioners had stopped from work on their own volition and thus there is no "retrenchment" within the meaning of
Section 2 (oo) of the I.D. Act, 1947.
(b) So far as the petitioners viz., Thiru. K. Moorthy in W.P.No.10576 of 2011, Thiru. G. Sengeni in W.P.No.10582 of 2011, Thiru. M. Albert in W.P.No.10585 of 2011, and P.Bakiyam in W.P.No.10588 of 2011 are concerned, it was found by the Labour Court that the petitioners stopped reporting to work from 02.11.2001 as would be evident from the Attendance Register and the Statement of EPF Contribution marked as exhibits Ex.M.1 to Ex.M.4 and Ex.M.11 to Ex.M.17. On examination of the above materials the Labour Court arrived at a conclusion/ finding that the above petitioners left the service at different points in time between December 1997 to 16/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch October 2001. The same was found to remain unchallenged.
(c) With regard to D. Kumaravel, the petitioner in W.P. 10575 of 2011 (I.D. No.23 of 2007), it was found by the Labour Court that while his presence has been marked on 1.11.1997, 2.11.1997, 3.11.1997, 4.11.1997 & 7.11.1997 and he was absent on 5.11.1997, 6.11.1997 and from 8.11.1997 onwards he has been continuously absent. The above finding of fact is on the basis of material evidence viz., Wages/ Attendance Register. Thus, a conclusion was drawn by the Labour Court that the petitioners had stopped from work on their own volition and thus there was no retrenchment within the meaning of
Section 2 (oo) of the I.D.Act, 1947.
(d) Insofar as S.Maheswari the petitioner in W.P.No.10574 of 2011 (I.D.No.22 of 2007) it was found by the Labour Court that she has received salary for the month of April 1999, there is no receipt of salary since May 1999. The Labour Court thus found that Maheswari had not reported to work since May 1999. The above finding of fact though by way of inference, the same is drawn based on evidence and thus does not warrant interference.
(e) It was found by the Labour Court from the Provident Fund 17/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch Contribution/ Register that the following petitioners had stopped from work at different points in time between March 2000 to November 2001 as could be seen from the Table below:
S.No. Name W.P.No. I.D.No. Date 1 Bhoopathy 10589 of 2011 39 of 2007 01.03.2000 2 M.Ramesh 10573 of 2011 21 of 2007 01.05.2001 3 N.Sekar 10586 of 2011 36 of 2007 August 2001
(f) M.Dilli Babu, the petitioner in W.P.10579 of 2011 was found by Labour Court that he was not a workman/employee but was engaged in Corporation as a Free Lance Carpenter.
(g) I.Rathinaswamy, the petitioner in W.P.No.10572 of 2011 stopped reporting to work from November 2001 and it was found by the Labour Court that he was working with Arun Contractors. Thus, there is no retrenchment in terms of
Section 2(oo) of the I.D.Act, 1947 for Section 25 F of the said Act to get attracted.
The above finding of fact by the Labour Court that the petitioners had stopped from work on their own volition / accord is a question of fact which has been arrived at on consideration of the materials on record in the form of Attendance Register, Wage Register, EPF Register/ Contribution and 18/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch salary vouchers.
One feature that is common for all the petitioners is that apart from having been found that they had stopped reporting to work voluntarily, all of them were found by the Labour Court to have stopped from work/ service between 1997 to December 2001. The above finding of fact militates against the petitioners' claim to protection under Section 25 F of the I.D.Act, 1947 inasmuch as it is the admitted case of the petitioners that they were stopped from work by the Respondent/ Corporation only in December 2003 as would be evident from the averment contained in the affidavit filed by the petitioners in support of the writ petition. It is relevant to refer to the following averment contained in the Affidavit filed by the petitioners in support of the Writ petition to show that it is the admitted case of the petitioners that they were denied work by the Respondent only since December 2003:
“7. I submit that since I along with the co-employees requested the management to extend all statutory benefits like PF and ESI etc., the management wantonly and deliberately without any notice whatsoever failed to provide work to all the 30 workers, including me from December 2003 onwards which amounts to illegal retrenchment”.
https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch It was thus necessary for the petitioners to show that they worked for 240 days in 12 calendar months preceding December 2003. However, the petitioners having been found to have voluntarily stopped from work between 1997 to December 2001, it is impossible for the petitioners to comply with the above requirement/ mandate which is a condition precedent for Section 25 F of the I.D. Act, 1947 to get attracted.
A close reading of the order of the Labour Court would show that the Labour Court had upon analysing all the material/evidence arrived at a conclusion that none of the petitioners/workmen had produced any material to show that they worked till December, 2003 as claimed. The above finding is essentially a finding of fact based on evidence and material and the conclusion arrived at by the Labour Court is convincing rather compelling and thus does not warrant interference. Importantly, there is no positive act performed by the Respondent/Corporation to deny the petitioners work as suggested by the workmen. To the contrary the evidence, facts and sequence of events as found by the Labour Court would show that the conclusion arrived at by the Labour Court that the petitioners had stayed away from work on their own volition is based on evidence and does not warrant 20/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch interference. It may be relevant to note that for Section 25 F of the I.D.Act, 1947 to get attracted there must be “retrenchment” in terms of
Section 2 (oo) of the I.D.Act, 1947.
In this regard, it may also be relevant to refer to the following judgments of the Hon'ble Supreme Court wherein it has been held that to constitute retrenchment there has to be positive action on the part of the employer. Abandonment of service or not reporting to work by the workmen would not constitute “retrenchment” in terms of
Section 2(oo) of the I.D. Act, 1947 to attract Section 25 F of the said Act. In this regard, it may be relevant to refer to the following judgments:
i) Vijay S. Sathaye v. Indian Airlines Ltd., reported in (2013) 10 SCC 253 :
"14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retrenchment” from service. (See State of Haryana v.Om Parkashÿ[(1998) 8 SCC 733 : 1999 SCC (L&S) 262] .)"
https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch
ii) State of Haryana v. Om Parkash, reported in (1998) 8 SCC 733ÿ:
"3.…….. Therefore, the authority was wrong in coming to the conclusion that there was a violation of
Section 25-F of the Act besides, as stated earlier, he himself voluntarily ceased to report for duty and there was no act on the part of the employer nor is there anything on record to suggest that the employer had refused work to him. Retrenchment within the meaning of
Section 2(oo) means termination by the employer of the service of the workman for any reason whatsoever. Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression “retrenchment” in
Section 2(oo) of the Act. There was nothing of the sort in the instant case. It was the workman who ceased to report for duty and even after he ceased to report for duty, it is not his case that at any point of time he reported for duty and he was refused work. He straightaway proceeded to invoke the provisions of the Act and, therefore, this is a case in which the employer has done nothing whatsoever to put an end to his employment and hence the case does not fall within the meaning of
Section 2(oo) of the Act. Therefore, the case does not attract
Section 2(oo), nor does it satisfy the requirements of
Section 25-F."
(emphasis supplied) 22/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch The above would show that the petitioners having been found to have stopped from work on their own volition, there is no retrenchment within the meaning of
Section 2(oo) of the I.D. Act, 1947 for Section 25 F of the Act to get attracted.
B. Burden on the employee/workmen to prove 240 days of continuous service within '12' calendar months not satisfied:
The writ petition must also fail for the reason that the burden is on the workmen to let in cogent evidence to show that he had been in continuous service with the employer for more than 240 days in 12 calendar months.
It has been found by the Labour Court that on the basis of the material available, the petitioners failed to demonstrate/ prove that they were in continuous service for more than 240 days in 12 calendar months preceding the alleged retrenchment i.e., December 2003 which is a condition precedent/ pre-requisite to attract Section 25 F of the I.D.Act, 1947. It has been found as a matter of fact that all the petitioners had stayed away/ stopped from work between 1997 to 2001 and thus the requirement of being in continuous service for more than 240 days of continuous service in 23/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch 12 calendar months preceding the alleged retrenchment in December 2003 is impossible of compliance.
It is trite law that burden is on the workmen to show that they had been in continuous service for more than 240 days with the employer in 12 calendar months preceding termination/ retrenchment for Section 25 F of the I.D.Act, 1947 to get attracted. It may be relevant in this regard to refer to the following judgments wherein it has been held that the burden is on the workman to show that he had been in continuous service for more than 240 days in 12 calendar months preceding termination.
i) Range Forest Officer v. S.T. Hadimani reported in (2002) 3 SCC 25 :
"3. ........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 24/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch 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."
(emphasis supplied)
ii) Municipal Corpn., Faridabad v. Siri Niwas reported in (2004) 8 SCC 195 :
"13........ The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment....
14. .......The retrenchment of the respondent took place on 17-5-1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5-8-1994 to 16-5-1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of
Section 25-B of the Industrial Disputes Act. " (emphasis supplied) 25/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch
iii) Surendranagar District Panchayat v. JethabhaiPitamberbhai reported in (2005) 8 SCC 450 :
"8. On the face of the aforesaid authorities, the Labour Court and the High Court committed an error in placing the burden on the employer to prove that the workman had not worked for 240 days with the employer. The burden of proof having been on the workman, he has to adduce evidence in support of his contention that he has complied with the requirement of
Section 25-B of the Industrial Disputes Act. In the present case, apart from examining himself in support of his contention the workman did not produce any material to prove the fact that he worked for 240 days...."
(emphasis supplied)
iv) R.M. Yellatti v. Asstt. Executive Engineer reported in (2006) 1 SCC 106 :
"12. ...... the workmen raised a contention of rendering continuous service between April 1980 to December 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The Tribunal based its decision on the management not producing the attendance register. In view of the affidavits filed by the workmen, the Tribunal held that the burden on the 26/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch workmen to prove 240 days' service stood discharged. In that matter, a three-Judge Bench of this Court held that pleadings did not constitute a substitute for proof and that the affidavits contained self-serving statements; that no workman took an oath to state that he had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this Court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non-response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had worked for 240 days.......
17. ....... However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a 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.......... "
(emphasis supplied) 27/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch
v) Bhavnagar Municipal Corpn. v. Jadeja GovubhaChhanubha reported in (2014) 16 SCC 130 :
"7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of
Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25- B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani [Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 : 2002 SCC (L&S) 367] ,Municipal Corpn., Faridabad v. Siri Niwas [Municipal Corpn., Faridabad Siri Niwas, (2004) 8 SCC 195 : 2004 SCC (L&S) 1062] ,M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, (2004) 8 SCC 246 : 2004 SCC (L&S) 1092] , Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan[Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, (2004) 8 SCC 161 : 2004 SCC (L&S) 1055] ,Surendranagar District Panchayat v.
JethabhaiPitamberbhaim [Surendranagar District Panchayat 28/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch v. JethabhaiPitamberbhai, (2005) 8 SCC 450 : 2005 SCC (L&S) 1167] and R.M. Yellatti v. Executive Engineer [R.M.
Yellatti v. Executive Engineer, (2006) 1 SCC 106 : 2006 SCC (L&S) 1] unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him.” It was thus necessary for the petitioners to succeed in the writ petition to show that they were in service until December 2003 and more importantly in continuous service for more than 240 days in 12 calendar months preceding December 2003, when the petitioners were allegedly retrenched. The Labour Court on the basis of evidence has found that the petitioners had left the service/ stayed away from work between 1997 to December 2001 i.e., much prior to December 2003. In any view, it is beyond any doubt that the petitioners have miserably failed to let in any evidence to show that they satisfy the requirement of being in continuous service for more than 240 days in 12 calendar months preceding December 2003 and thus their claim under Section 25 F of the I.D.Act, 1947 is rightly rejected by the Labour Court.
29/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch C. No Deposition by Workmen Nor Cross Examination of Management Witness:
None of the workmen other than Ravi had even entered the box nor deposed in the proceeding, the statement of M.W.1 has not been challenged by way of cross examination thereby remaining uncontroverted. As a matter of fact, it was also recorded by the Labour Court that except Raja (I.D.No.41 of 2007) none of the other workmen had even come forward to examine themselves which would show that the finding of the Labour Court on the above question of fact does not warrant interference.
D. Delay in raising the Industrial Dispute – Militates against normal course of human Conduct -
The industrial dispute was raised only in September, 2004 though the material before the Labour Court would show that the petitioners had left/abandoned their service between 1997-2001, the delay in raising the Industrial Dispute is again indicative of lack of bona fides for if there had been actual denial of work, the issue would have been raised promptly the delay in raising the dispute militates against a normal course of human 30/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch conduct and makes the case of the petitioners hard to believe.
11. Conclusion:
The Labour Court concluded that irrespective of whether the petitioners had worked for more than 240 days in 12 calendar months or otherwise, the question of compliance with the procedure set out in Section 25 F of the I.D.Act, 1947 would not get attracted for there is no “retrenchment” within the meaning of Section 2 (oo) of the aforesaid Act. The above finding of the Labour Court that there is no “retrenchment” within the meaning of
Section 2(oo) of the I.D. Act, 1947, is essentially based on a finding of fact that the petitioners had stopped from work on their own volition and there was no positive act performed by the Respondent/ Corporation to deny the petitioners work, which is based on evidence and thus does not warrant interference.
The finding that all the petitioners had stopped from work between 1997 to December 2001, is one of fact, based on evidence and thus ought not to be disturbed. The sequitur of the above finding of fact is that the question of complying with the requirement of being in continuous service for more than 240 days in 12 calendar months preceding December 2003, 31/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch when the petitioners were allegedly retrenched is impossible of compliance for Section 25 F of the said Act to get attracted. Although there is reference to Sections 25 G, H and N of the I.D.Act, 1947 in the affidavit filed by the petitioners, it is needless to examine the applicability of the aforesaid Sections inasmuch as there is no “retrenchment” within the meaning of Section 25 F of the I.D.Act, 1947.
It is trite law that jurisdiction under
Article 226 of the Constitution of India is limited to interfering with finding of facts only when it is shown to be perverse or based on no evidence. However as would be clear from the above discussion the finding of the labour court is based on evidence and does not warrant interference.
12. For all the above reasons, I do not find merit in these Writ Petitions and the Writ Petitions are dismissed. No Costs. Consequently, connected Miscellaneous Petition is closed.
11.07.2022 Index: Yes/No Speaking (or) Non-Speaking Order nst/mka 32/33 https://www.mhc.tn.gov.in/judis W.P.Nos.10571 of 2011 etc. batch MOHAMMED SHAFFIQ, J.
nst/mka To:
1.The Management Of Tamil Nadu Tourism Development Corporation Limited Wallajah Road Near Kalaignar Arangam Chennai – 600 005.
2.The Manager Hotel Tamil Nadu Tourism Development Corporation Limited,Beach Resorts, Unit-I, Mamallapuram, Near Chennai, Kancheepuram District.
3.The Presiding Officer, Principal Labour Court, High Court Campus, Chennai – 600 004.
W.P. Nos.10571 to 10590 of 2011 and W.M.P. No.24008 of 2019 11.07.2022 33/33 https://www.mhc.tn.gov.in/judis