BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 27/06/2006 CORAM: THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU W.P.No.3976 of 2004 S.Selvaraj ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Trichirapalli. 2.The Management, Tamilnadu State Transport Corporation (Kumbakonam Division II) Ltd., now renamed as Tamilnadu State Transport Corporation (Kumbakonam) Ltd., Railway Station Road, Kumbakonam. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records of the 1st respondent herein in I.D.No.110/1997 dated 03.02.2004, quash the same and direct the second respondent herein to reinstate the petitioner with continuity of service, back wages and other attendant benefits. !For Petitioner .. Mr.M.Arun Murugan ^For Respondent No.2 .. Mr.K.Jayaraman :ORDER
The prayer of the petitioner is to quash the award passed by the
Presiding Officer, Labour Court, Trichirapalli, the first respondent herein, in
I.D.No.110/1997 dated 03.02.2004.
2.The petitioner’s claim for reinstatement in the second respondent a
state owned Transport Corporation, was rejected by the Labour Court.
3. The case of the petitioner is that he is working as a temporary
conductor from the year 1984, with the second respondent/Corporation and he is
working continuously without break of service and attending the duty
regularly. It is specifically stated that the wages are calculated on daily
rate but paid on monthly basis, as is being paid to all the temporary workers.
The temporary workers are also performing the same work like permanent workers
and are entitled for all statutory benefits.
4. It is stated that though he is working for more than 10 years and
working more than 240 days in every calendar year, the second respondent has not
made him permanent.
5. The grievance of the petitioner is that on 26.04.1995, his service was
terminated orally by the second respondent without assigning any reason and
without prior notice. Hence, the termination is illegal and is without following
the mandatory conditions under Section 25(F) of the Industrial Disputes Act,
1947 (hereinafter referred as ‘the Act’).
6. Therefore, he raised a dispute in the Labour Court, and the same was
rejected. Hence, he is before this Court.
7. The second respondent has filed his detailed counter. Accordingly the
service of the petitioner was utilized on a casual basis, as and when his
service was required and the employment subsisted on day to day basis and not on
monthly basis and permanency, and as and when the petitioner attended the duty,
he was being paid wages for that day and for other days when his service was
not required he has not been paid any wages.
8. Thus, the case of the 2nd respondent is that there is no employer –
workman relationship existed between the respondent and the petitioner.
9. It is stated that the petitioner was never employed in any substantial
post. It is also stated that the casual employees are engaged by the Branch
Manager, depending upon the requirements. Hence, those casual employees
including the petitioner, cannot claim any lien or right for any employment in
the Corporation. It is stated that the name of the petitioner was sponsored for
substantial post, but he was not selected and this fact was admitted by the
petitioner also. Hence, he continues to be a casual employee. It is stated
that there are number of such persons, attached with the respondent. It is also
stated that the respondent never terminated the service of the petitioner as
there is no question of any employment as the petitioner is not their employee.
10. The stand taken by the second respondent is that they utilized the
service of the petitioner as and when they required. Therefore, it cannot be
considered as a retrenchment.
11. It is also stated that the petitioner never worked continuously
beyond 240 days in a twelve calendar months and even according to his own
evidence, he worked only for 135 days in a year and that too not continuously.
It is stated that the service of petitioner is taken from 1994 on daily wages
basis. Hence, he is not entitled for any relief and he fails to satisfy the
requirements of the provisions of the Act. The first respondent thus pronounced
an award, rejecting his claim.
12. Heard the counsel for the petitioner and the counsel for the second
respondent and learned Additional Government pleader appearing for the first
respondent.
13. Perused the Award of the first respondent.
14. The point for determination is whether the petitioner is being
terminated from service, and if so, he is entitled for any relief?
POINT: The petitioner did not produce any document to show that he was
appointed by the second respondent in any substantial post and he is a permanent
employee.
15. Section 2(oo) of the Act deals with ‘retrenchment’ and it means that
the termination by the employer of the service of a workman for any reason
whatsoever than as a punishment inflicted by way of disciplinary action.
16. Section 2(s) deals with the definition of ‘workman’.
17. The first respondent discussed this aspect at paragraph 11 of his
award and observed that the petitioner has been provided work on daily wages
basis by the concerned Branch Manager. It is also observed in paragraph 12 that
the petitioner was not able to establish that he worked for more than 240 days,
in a calendar year. It is also observed that as per Ex.W1, he has not
established that he has worked for more than 240 days a year. Therefore, the
first respondent has come to a definite conclusion that the petitioner has not
produced any document to show that he has been appointed on a regular basis with
the concerned authorities in order to claim that he is employee of the second
respondent and so also, he has failed to produce any document to show that he
worked for more than 240 days a year and in order to claim any relief, under
Section 25(F) of the Act. The first respondent has relied on the judgment of
this Court and held that the petitioner is not entitled for any relief.
18. The learned counsel for the petitioner vehemently contended that the
provisions of Section 25(B)(F)&(H) ought to be considered.
19. However, it is conceded that there is no document to prove that the
petitioner was appointed by the second respondent and it is also stated that
there is no document to prove that the petitioner has worked continuously for
more than 240 days in any calendar year.
20. The Section 25(B) of the Industrial Disputes Act deals with
‘definition of continuous service’. It is as follows;
“25-B. Definition of continuous service – for the purpose of this
chapter,- ……………………
(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;”
21. The Supreme Court of India in more than 100 cases has clearly held
that before a workman can be considered to have completed one year of continuous
service in an industry, it must be shown that he was employed for a period not
less than twelve calendar months, and the most important
fact is that during those twelve calendar months, he should have worked for not
less than 240 days.
22. In the instant case, the petitioner has failed to prove that he was
employed with the second respondent for a period not less than twelve calendar
months and so also, he failed to prove that he has worked for not less than 240
days in any calendar month.
23. In Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra & others
etc. (1)
The Supreme Court of India has categorically held that if a person
working in the post which has not been sanctioned and he has not been appointed
in any substantial post and when his services are utilized only on ad hoc
basis, such a person has neither any right to claim regularization nor any
status to claim as a workman under
————————————————————
(1) 1994(2) LLJ 977
the Act, to claim any relief in spite of the fact that such a workman working in
ad hoc basis who has completed the service of 240 days.
24. The question of termination or retrenchment is with regard to the
regular employee. When it is not a case of retrenchment of regular employee the
petitioner is not entitled for any relief under Section 25(H) as he is not a
regular employee or has worked continuously for a period of 240 days in twelve
calendar month. There are no merits in this writ petition.
25. Surendranagar District Panchayat Vs. Dahyabhai Amarsinh. (1)
The Supreme Court of India has held that the facts must be proved by
the workman to claim the provisions of Section 25(F) of the Act. To claim the
provisions of Section 25(f) of the Act, it should be proved by the workman that
there exists a relationship of employer – employee, and that
———————————————————–
(1) 2005(8) SCC 750
he is a workman within the meaning of Section 2(s)of the Act and he has worked
for not less than one year service continuously as provided under Section 25(B)
of the Act. If any one of this is missing, then the workman is not entitled for
the relief under Section 25(F). Thus the Supreme Court of India has
categorically held that the burden of proof lies only on the workman and it is
for the workman to adduce evidence to prove all the above facts.
26. Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others
(S.C.).(1)
The Supreme Court of India has held that the disengagement from service of
appellants, who were temporary employees working on daily wages, did not amount
to “retrenchment” and the termination of their service was not in violation of
Section 25(F) of the Act. Since they were only daily wage employees, they had
no right to their posts and their disengagement was not arbitrary.
————————————————————
(1) 90 FJR 465
27. The counsel for the petitioner contended that the second respondent
may consider for re-employment of the petitioner.
28. The second respondent can consider the same. The corporation is at
liberty to do so and this court cannot give any direction in this regard.
With the above observations, the writ petition is dismissed. No costs.
gcg
To
1.The Presiding Officer,
Labour Court, Trichirapalli.
2.The Management,
Tamilnadu State Transport
Corporation (Kumbakonam
Division II) Ltd.,
now renamed as
Tamilnadu State Transport
Corporation (Kumbakonam) Ltd.,
Railway Station Road,
Kumbakonam.