WP/18010/2000 of INDIAN COMMERCE AND Vs COMMERCIAL TAX OFFICER on 25 November 2002

:ORDER

Heard the learned counsel on either side.

2. Tamil Nadu Water Supply and Drainage Board is the writ petitionerherein. They question the award dated 19.04.2011 made in I.D.No.113 of 2002on the file of the Labour Court, Madurai. The said industrial dispute wasraised by the second respondent herein. The case of the second respondent isthat he was employed on daily wages basis by Tamil Nadu Water Supply andDrainage Board as Pump Operator from 01.09.1995 till 30.06.1997. He wasdenied employment with effect from 30.06.1997. The Board did not follow theprocedure laid down in Section 25F of the Industrial Dispute Act, 1947. He was representing to the various official of the Tamil Nadu Water Supply andDrainage Board, some of whom, recommended his case for regularisation. Sincethe Management of the Board was unresponsive, he raised an industrial disputein the year 2002. Since conciliation failed, he had to move the LabourCourt, which took up the case as I.D.No.113 of 2002. Before the LabourCourt, the second respondent herein examined himself as a witness. He alsomarked Ex.W1 to Ex.W.7. On the side of the Tamil Nadu Water Supply andDrainage Board no evidence was adduced. The Labour Court by the impugnedaward dated 19.04.2011 held that denial of employment to the workman was notjustified and directed his reinstatement with continuity of service. Ithowever denied backwages. The said award is under challenge in this writpetition.

3. The learned counsel appearing for the Tamil Nadu Water Supply andDrainage Board reiterated the contentions set out in the affidavit filed insupport of this writ petition. The learned counsel appearing for the secondrespondent/workman wanted this Court to sustain the award passed by theLabour Court.

4. I carefully considered the rival contentions and also the materialson record. It is not in dispute that the second respondent herein wasemployed on daily wages basis as Pump Operator from 01.09.1995 to 30.06.1997.The stand of the Tamil Nadu Water Supply and Drainage Board is that theworkman was originally employed in connection with Kolunthurai Combined WaterSupply Scheme and that since the said project was concluded, he wasdisengaged. The Board had contended that the workman was not employed for aperiod of 240 days in one year. But as the Labour Court rightly held, thisdefence was not established. The second respondent was after all a workmanand therefore, he can only make a claim that he was employed for more than240 days during the period in question.

5. When there is no dispute that he was employed from 01.09.1995 till30.06.1997, it was incumbent on the part of the Management to have adducedevidence to show that during this period, the workman did not put in servicefor a period of 240 days in one year. As already point out, the Managementdid not examine any official. It did not marked any document. Hence, theLabour Court rightly came to the conclusion that on account of non productionof evidence by the Management, it would have to draw adverse inference thatthe stand of the workman was not rebutted.

Section 2(s) of the Industrial Dispute Act defines a workman as follows:~

?Workman? means any person (including an apprentice) employed in anyindustry to do any manual, unskilled, skilled, technical, operational,clerical or supervisory work for hire or reward, whether the terms ofemployment be express or implied, and for the purposes of any proceedingunder this Act in relation to an industrial dispute, includes any such personwho has been dismissed, discharges or retrenched in connection with, or as aconsequence of, that dispute, or whose dismissal, discharge or retrenchmenthas led to that dispute, but does not include any such person~(i) who is subject to the Air Force Act, 1950(45 of 1950), or the Army Act 1950(46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or otheremployee of a prison, or

(iii) who is employed mainly in a managerial or administrative capacity, or

(iv) who, being employed in a supervisory capacity, draws wages exceeding (ten thousand rupees) per mensem or exercises, either by the natureof the duties attached to the office or by reason of the powers vested inhim, functions mainly of a managerial nature.)?

6. The second respondent herein definitely falls within that expression. Therefore, the Management ought to have followed the procedurelaid down in Section 25F of the Industrial Dispute Act. In this case, theprocedure was not followed. Hence, the Labour Court was justified indirecting the Management to take back the second respondent and giveemployment. But then admittedly the second respondent was not holding anysubstantive post. Therefore, while rightly negativing backwages, the LabourCourt should also have held that the question of awarding continuity ofservice will not arise. To that extent the award of the Labour Court has tobe interfered with.

7. The writ petitioner Tamil Nadu Water Supply and Drainage Board is directed to take back the second respondent herein in the same position,which he was enjoying originally. The Management shall offer work on thesame terms wherever it is available. The second respondent cannot insistthat he should be employed only in a particular place or site or project. Ifthe second respondent is not willing to accept the offer made by theManagement, the Management can inform the second respondent accordingly andthereafter, the relationship between two would come to an end. If the secondrespondent accepts the offer made by the Management the second respondentwill continue to be engaged as a daily wager and the relationship between theparties will be governed by the provisions of the Industrial Dispute Act,1947. It appears that during the pendency of this writ petition, thepetitioner did not take back the second respondent in service and it was onlypaying him his last drawn wages. The same shall not be recovered.8. Accordingly, this Writ Petition is partly allowed. No costs.Consequently, connected Miscellaneous Petition is closed.

ToThe Presiding Officer,Labour Court,Madurai.