IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 31-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.2056 of 2001 Thimmy Reddy .. Petitioner. Versus 1.Chief Educational Officer, Tirunelveli. 2. The Management of Papanasam Labour Welfare Association, Higher Secondary School Vikramasingapuram and Post Ambasamudhram Taluk, Tirunelveli District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records pertaining to the order, dated 20.7.2000, in I.D.No.12 of 1998, on the file of the Labour Court, Tirunelveli. For Petitioner : Mr.R.Subramanian For Respondents : Mr.T.Seenivasan Additional Government Pleader (R1) Mr.S.Jayaraman (R2) O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2. This writ petition has been filed by the petitioner challenging the award of the Labour Court, Tirunelveli, dated 20.7.2000, made in I.D.No.12 of 1998.
3. It has been stated that the petitioner had been appointed as a Waterman-cum-Gardener, on a temporary basis, from 4.11.93 to 3.1.94, by the management of the second respondent school. The post in which the petitioner had been appointed is a permanent post. However, he was not paid the wages due to him for the period 4.1.94 to 1.6.94. The petitioner had been appointed in the place of one Chinnasamy, who had gone on medical leave. After the retirement of Chinnasamy, on 1.7.94, the petitioner has been working in his place. The second respondent management had issued an appointment order, on 31.1.95, subject to the approval of the first respondent. On 14.1.96, when the petitioner had gone to the second respondent school, he was not permitted to work. However, no termination order was given to him. The petitioner had been appointed by the second respondent management after calling for the names from the employment exchange. As the petitioner’s name had been forwarded, he was appointed in the permanent post, which had fallen vacant on the retirement of Chinnasamy. The petitioner’s appointment could not be regularised, immediately thereafter, as there was a ban imposed by the Government for filling up of the vacancies. The second respondent had also requested the authorities concerned to confirm the appointment of the petitioner as a Waterman-cum-Gardener, by the orders issued by the second respondent, on 31.1.95, which had been approved by the concerned authorities. However, the petitioner was not allowed to work as a Waterman-cum-Gardener from 14.1.96. No reasons were given by the second respondent management while denying employment to the petitioner. No termination order had been issued by the second respondent management, terminating the service of the petitioner. Since the second respondent management had appointed one Maran Sadagopan, who is a close relative of the Secretary of the second respondent school, the petitioner had raised an industrial dispute in I.D.No.12 of 1998, for a direction to the management to reinstate the petitioner in service. The Labour Court by its award, dated 20.7.2000, dismissed the industrial dispute in I.D.No.12 of 1998. Aggrieved by the said award, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
4. No counter affidavit has been filed on behalf of the respondents.
5. The learned counsel appearing on behalf of the petitioner had submitted that the impugned award of the Labour Court, dated 20.7.2000, is erroneous and unsustainable. The Labour Court had failed to see that the post in which the petitioner had been appointed is a permanent post. The petitioner had been duly appointed by an order, dated 31.1.95, issued by the management of the second respondent school. Rule 15 of the Tamilnadu Recognised Private Schools (Regulation) Rules, 1974, mandates that in a regular vacancy, an incumbent shall be appointed only on a regular basis. Hence, the first respondent ought to have approved the appointment of the petitioner. It has been stated that the second respondent management did not issue a termination order, nor has the second respondent management issued a communication informing the petitioner that his appointment has not been approved by the concerned authorities. Instead the second respondent management had appointed one Maran Sadagopan, who is a relative of then Secretary, in the month of February, 1996. Such an appointment is arbitrary and illegal.
6. It has been stated that the Labour Court has erroneously held that there is no post of Gardener-cum-Waterman. While Ex.A-2, shows that Chinnasamy was appointed in the said post, which is an approved post, as seen from the list given by the Chief Educational Officer, on 5.10.90. In fact the second respondent management had referred to Chinnsamy as Waterman-cum-Gardener. In the letter Ex.A-4, dated 31.1.95, the second respondent management has sought for the regularisation of the appointment of the petitioner. The Labour Court had overlooked the fact that the petitioner had been called upon by the second respondent to produce the minutes book which would be a clear evidence as to whether the petitioner had been appointed in the place of Chinnasamy, on a temporary basis or as a permanent employee. However, the second respondent had not produced the minutes book, as requested by the petitioner. It has also been stated that D.W.1, the Secretary of the second respondent school, had admitted in his evidence that Chinnasamy was working in a permanent post and that the said post had not been cancelled after his retirement. D.W.1 had further admitted that the petitioner had issued a notice to produce the minutes book and that the books were not produced before the Labour Court. The Labour Court had dismissed the industrial dispute only on the ground that the petitioner did not produce any document to show that he was in service in the respondent school from 1.7.94 to 14.1.96. The Labour Court had failed to consider the evidence of D.W.1, which is in favour of the petitioner. The appointment order, dated 31.1.95, has stated that the petitioner was duly appointed in the place of Chinnasamy, who had retired on 1.7.94. The petitioner has been in employment, continuously, from 1.7.94 to 14.1.96. There is no material evidence contrary to the claim of the petitioner, with regard to his continuous employment. Though the initial onus is on the employee to prove that he was in continuous employment from the date of his appointment, the onus shifts to the employer once a prima facie case is made out by the petitioner employee, as held in R.M.Yellatti Vs. Assistant Executive Engineer (JT 2005(9) SC 340 = 2006 (1) SC 106).
7. The learned counsel for the petitioner had also relied on R.M.Yellatti Vs. Assistant Executive Engineer (JT 2005(9) SC 340 = 2006 (1) SCC 106), to show that the general principles enshrined in the Indian Evidence Act, 1872, have to be applied to draw adverse inference, in accordance with Section 114 III(g) of the Indian Evidence Act, when the employer fails to produce the necessary documents as requested by the petitioner employee. Since the second respondent employer in the present case had failed to produce the minutes book, as requested by the petitioner, adverse inference ought to have been drawn by the Labour Court against the second respondent. Thus, the Labour Court had failed to exercise its jurisdiction in accordance with law and it has mislead itself in arriving at its erroneous conclusions contrary to the facts and circumstances of the case. Therefore, the award of the Labour Court, dated 20.7.2000, made in I.D.No.12 of 1998, is liable to be set aside.
8. The learned counsel for the petitioner had also relied on the decision of the Supreme Court reported in R.M.Yellatti Vs. Assistant Executive Engineer (JT 2005(9) SC 340 = 2006 (1) SC 106), to show that once the employee has prima facie shown that he had completed 240 days of service, his termination from service, without complying with the provisions of the Industrial Disputes Act, 1947, would be illegal.
9. Per contra the learned counsel appearing on behalf of the second respondent management had submitted that the petitioner had raised the industrial dispute before the Labour Court, Tirunelveli, in I.D.No.12 of 1998, only on the presumption that he was a workman, who had been in continuous service for more than 240 days, as prescribed by the relevant provisions of the Industrial Disputes Act, 1947.
10. The learned counsel for the second respondent had further stated that the petitioner was engaged as a Waterman, purely on a temporary basis, for a period of 59 days only, i.e from 5.11.93 to 2.1.94. He was engaged in the leave vacancy caused due to the absence of the regular Waterman, Chinnasamy, who had gone on medical leave. Since the work of tending the garden was incidental to the job of a waterman, the petitioner had also been attending to the work as a gardener. However, the waterman is not designated as Waterman-cum-Gardener. When the petitioner was temporarily engaged in the leave vacancy arising due to the absence of Chinnasamy who had gone on leave, he was clearly informed that he is not eligible to claim any benefit of absorption as a permanent employee. He was also informed that his service would be terminated at any time without any prior notice. The temporary engagement of the petitioner was also approved by the District Educational Officer, Tirunelveli. When Chinnasamy had attended duty on the expiry of his leave period, the leave vacancy ceased to exist from 3.1.94. Thereafter, the Chief Educational Officer, Tirunelveli, had granted permission to the second respondent management to fill up the post of waterman, as per his proceedings Rc.No.11408/E1/95, dated 15.9.95. Thereupon, the employment exchange, Tirunelveli, had been requested to furnish the list of names for being considered for appointment to the said post. As per the request of the second respondent, the employment exchange, by its letter, dated 25.1.96, forwarded a list of names, from the said employment exchange. However, the petitioner’s name was not found therein. An interview was held and therefore, one of the candidates, namely, Maran Sadagopan, had been selected for being appointed as a workman on a permanent basis, based on his merit and ability. He had joined duty, on 5.2.96, and his appointment had been approved by the District Educational Officer, Cheranmahadevi, as per his letter 7253/A3/95, dated 12.2.96.
11. It has also been stated that the petitioner had not proved that he had worked for more than 240 days in a year under the second respondent management to be considered as a workman, in accordance with the provisions of the Industrial Disputes Act, 1947. Since the petitioner had failed to discharge the initial onus of proof, it does not shift on the second respondent requiring the second respondent to prove that the petitioner was not a workman, as claimed by him. Unless a specific and formal request had been made by the petitioner before the Labour Court based on which the Labour Court had directed the second respondent management to produce certain records, adverse inference cannot be drawn against the second respondent on the non-production of such records. Since the approval had not been granted for continuing the petitioner in employment, the petitioner does not have any right to continue in the post in which he was temporarily appointed, in a leave vacancy.
12. The learned counsel appearing on behalf of the second respondent management had also contended that the burden to prove that he is a workman, who had been employed for more than 240 days in the second respondent school, is on the petitioner. As rightly held by the Labour Court, the petitioner had not filed any petition before the Labour Court to call for the records from the second respondent management. Therefore, no adverse inference can be drawn against the second respondent for the non-production of the records. Mere non-production of the necessary records, per se, cannot be sufficient for the Labour Court to draw adverse inference against the second respondent. Even otherwise, automatic regularisation of the petitioner cannot arise. An invalid appointment, which is not in accordance with the provisions of the relevant statute cannot be regularised. Since the appointment of the petitioner was only on a temporary basis, and since the petitioner has not shown that he has put in 240 days or more, in his service, he cannot be considered to be a workman as defined under the provisions of the Industrial Disputes Act, 1947.
13. The learned counsel appearing on behalf of the second respondent management had relied on the following decisions in support of his contentions:
13.1. In Range Forest Officer Vs. S.T.Hadimani (2002(3) SCC 25), the Supreme Court had held that where the claim of the workman that, he had worked for more than 240 days in the year preceding his termination, was denied by the employer it was the for the claimant, who is to lead evidence to that effect. The workman’s affidavit would not be a sufficient evidence for the purpose of proving such a claim.
13.2. In M.P.Housing Board and another Vs. Manoj Shrivastava (2006(2) SCC 702), it has been held that unless a person is appointed against a duly sanctioned vacant post and in accordance with the statutory law operating in the field, such appointment would be void and therefore, it would not confirm any legal right on the person so appointed. It has been further held that only because a person has been working for more than 240 days he does not derive any legal right to be regularised in service.
13.3. In M.P.State Agro Industries Development Corporation Ltd. and another Vs. S.C.Pandey (2006(2) SCC 716), the Supreme Court had held that if an appointment has been made contrary to the provisions of the statute, the same would be void and the effect thereof would be that no legal right could be derived by the employee. Only because a temporary employee completes 240 days of continuous service, no legal right would be conferred upon him to be regularised in service. Further, if an appointment is made contrary to the provisions of the statute, the same would be void and the petitioner cannot claim any legal right by his mere appointment.
14. The learned counsel had relied on the decision of the Supreme Court reported in M/s.Sriram Industries Enterprises Ltd. V. Mahak Singh and others (JT 2007 (4) SC 278), to show that the petitioner employee had not discharged the burden of adducing cogent evidence, both oral and documentary, to show that he had worked for 240 days or more in a given year.
15. In his reply to the contenions of the learned counsel for the second respondent, the learned counsel appearing on behalf of the petitioner had stated that the employee had gone into the witness box to let in oral evidence stating that he was employed for more than 240 days in a year in the second respondent management. Further, he had given a notice to the management to produce the relevant documents. Since the second respondent management had not produced the relevant documents, as required by the petitioner, the Labour Court ought to have drawn adverse inference against the second respondent, especially, when the existence of the minutes book has been confirmed by the witness examined on behalf of the second respondent management. The petitioner had been appointed on a permanent basis, in accordance with the provisions of the Tamilnadu Recognised Private Schools (Regulation), Act, 1973. Rule 15 of the Tamilnadu Recognised Private Schools (Regulation) Rules, 1974, states that an incumbent to a post shall be appointed only on a regular basis. While so, it cannot be claimed by the second respondent that the petitioner had been appointed only on a temporary basis and without the approval of the concerned authorities. When the management of the second respondent school had written a letter to the Chief Educational Officer, Tirunelveli, on 1.1.95, stating that the school committee had duly appointed the petitioner as a Gardener in the place of Chinnasamy, who had retired on 1.7.94, and had sought for the necessary approval, it is not open to the second respondent to state that the petitioner had not been appointed in accordance with the provisions of law applicable to his service. The Labour Court having failed to consider the relevant evidence on record, had erroneously considered, the irrelevant materials before arriving at its conclusions. In such circumstances, the award of the Labour Court, dated 20.7.2000, made in I.D.No.12 of 1998, is liable to be set aside as it is unsustainable, both on facts and in law.
16. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the second respondent and on a perusal of the records available before this court and in view of the decisions referred to above, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this court to interfere with the award of the Labour Court, dated 20.7.2000, made in I.D.No.12 of 1998.
17. The Labour Court, Tirunelveli, had passed the award, dated 20.7.2000, based on the evidence available before it. This Court while exercising its jurisdiction, under Article 226 of the Constitution of India, does not, normally, re-appraise the evidence to come to a different conclusion. The petitioner has not been in a position to show that the award of the Labour Court is either perverse or that the conclusions arrived at by the Labour Court is based on no evidence. Even though the petitioner had claimed that he had been in continuous employment, under the second respondent management, for more than 240 days during the relevant period, to be termed as a workman, in accordance with the provisions of the Industrial Disputes Act, 1947, he had failed to discharge the onus of showing sufficient proof to substantiate his claim.
18. It is an admitted fact that the petitioner had not filed any petition before the Labour Court to direct the second respondent management to produce the relevant records relating to his appointment as a waterman-cum-Gardener, in a permanent post, under the second respondent management. While so, it cannot be said that the second respondent management was duty bound to produce the records before the Labour Court. Failure on the part of the second respondent to produce the records, would not be a sufficient reason for the Labour Court to draw adverse inference against the second respondent. The petitioner cannot claim for regularisation of his service, unless he could show that his appointment was in accordance with the provisions of law applicable to his service and that the concerned authority had granted the necessary approval for such an appointment. Merely because the petitioner had been appointed on a temporary basis, in a temporary vacancy that had arisen in the second respondent school, the petitioner cannot be permitted to claim for permanency in the post or for regularisation of his appointment, without the necessary approval, in accordance with the provisions of the Tamilnadu Recognised Private Schools (Regulation) Act, 1973 and the rules framed thereunder. It has also been brought to the notice of this Court, by the learned counsel appearing on behalf of the second respondent management, that the post in question had been filled up by a regularly appointed person and the said appointment had also been approved by the concerned authorities, in accordance with law. In such circumstances, this Court is not inclined to grant the reliefs prayed for by the petitioner in the present writ petition. Hence, the writ petition stands dismissed. No costs.
csh
To
The Chief Educational Officer,
Tirunelveli
[ PRV / 16175 ]