THE SUPERINTENDING ENGINEER TWAD BOARD & ANOTHER versus M. NATESAN ETC. on 10 May 2019

862

SUPREME COURT REPORTS

[2019] 7 S.C.R.

ATHE SUPERINTENDING ENGINEER TWAD BOARD &ANOTHER

v.

M. NATESAN ETC.

B(Civil Appeal Nos. 4875-4884 of 2019)

MAY 10, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Industrial Disputes Act, 1947– s.17-B– Between 1986-89, therespondents-workmen were engaged temporarily as Store WatchmanCon daily wages in newly created Sectional stores in various SubDivisions under the control of Rural Water Supply (RWS) Divisions,Nagercoil – Engagement Order mentioned that the services will beterminated when the requirement is over and that they cannot claimany further appointment in the appellant-Board – Sectional storesDclosed– Respondents terminated – Labour Court directedreinstatement of the respondents with back wages for the period ofnon-employment and with continuity of service – Single Judgeaffirmed the award to the extent of reinstatement of the workmenand held that since the matter was pending from 1991, therespondents were entitled to get 50% back wages only – Writ appealE– Dismissed – Held: For temporary workers like respondents, it ismandatory to show that they continuously worked for 240 days ina year – Initial burden is on them to adduce evidence – Only whenthe initial burden is discharged by the respondents, the burden canbe shifted on the appellant – Single Judge and the Division BenchFnot right in placing the burden on the appellant to prove that therespondents had not worked continuously for 240 days in a year –However, in the peculiar facts and circumstances of the case, thisquestion not gone into any further as most of the respondents haveattained the age of superannuation therefore, there is no questionof reinstatement – Amount already paid to each of the respondentsG(including Rs.2 lakhs ordered by the Supreme Court as conditionfor stay of the impugned judgment) shall be in full quit of all claimsincluding 50% back wages and also the quantum of compensationin lieu of reinstatement – In appeal arising out of Writ AppealNo.1439 of 2016, Rs.2 lakhs be paid by the appellant to the legal H

representatives of the Respondent-since deceased – Amount lyingin the deposit of Labour Court/High Court along with accruedinterest be refunded to the appellant – Order passed in the peculiarfacts and circumstances of the case, not a precedent.

Disposing of the appeals, the Court

HELD: 1.1 For temporary worker like NMR respondents,it is mandatory to show that they have continuously worked for240 days in a year. The initial burden is upon the respondents-workmen to adduce evidence showing that they have workedcontinuously for 240 days. Only when the initial burden isdischarged by the respondents-workmen, the burden can beshifted upon the appellant-Board. Both the Single Judge as wellas the Division Bench were not right in placing the burden uponthe appellant-Board to prove that the respondents-workmen hadnot worked continuously for 240 days in a year. However, in thepeculiar facts and circumstances of the case, this question is notgone into any further as most of the respondents have attainedthe age of superannuation therefore, there is no question ofreinstatement. [Para 9] [865-F-H; 866-A]

1.2 The amount already paid to each of the respondents(including Rs.2,00,000/- ordered by the Supreme Court) shall bein full quit of all claims including 50% back wages and also thequantum of compensation in lieu of reinstatement. In appealarising out of Writ Appeal No.1439 of 2016) Rs.2,00,000/- shallbe paid by the appellant-Board to the legal representatives ofthe respondent-since deceased. The amount lying in the depositof Labour Court/High Court along with accrued interest isordered to be refunded to the appellant-Board. The above orderis passed in the peculiar facts and circumstances of the case andmay not be quoted as a precedent. [Paras 11, 12] [867-B-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4875-4884 of 2019.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4875-4884 of 2019.

From the Judgment and Order dated 16.12.2016 by the High Courtof Judicature at Madras in Writ Appeal Nos. 1434-1443 of 2016.

C. Paramasivam, Vinodh Kanna B., Advs. for the Appellants.

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B

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EF

G

AMs. Sanya Kumar, N. K. Verma, Trideep Pais, Ms. Sanya Su,Ms. Anjana Chandrashekar, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

B2. These appeals arise out of the judgment dated 16.12.2016 passedby the High Court of Madras in Writ Appeal No.1434 of 2016 and batchin and by which the High Court has affirmed the order of the learnedSingle Judge directing reinstatement and the back wages at 50%.

3. Between 1986-89, the respondents were engaged as StoreCWatchman on daily wages under NMR basis temporarily in newly createdSectional stores in various Sub Divisions under the control of Rural WaterSupply (RWS) Divisions, Nagercoil. In the Engagement Order, it hasbeen specifically mentioned that the engagement on daily wage basiswill be purely temporary and the services will be terminated when therequirement is over and that they cannot claim any right for any furtherDappointment in TWAD Board. In the Engagement Order itself, it is clearlystated that engagement is purely temporary and their services will beterminated when the requirement is over without prior notice. In view ofthe Board decision, all the Sectional stores were closed and the Divisionalstores (each for one district) were formed. Consequent on formation ofEDivisional stores, the respondents were terminated from their servicesin the year 1990 for want of vacancies.

4. The respondents raised an industrial dispute and on failure ofthe conciliation proceedings, the same was referred to the Labour Court,Madurai. The Labour Court allowed the petitions and held that thetermination of the services of the respondents is not valid and is notFsustainable. The Labour Court passed the award on 12.04.2000 directingreinstatement of the respondents into service with back wages for theperiod of non-employment and with continuity of service. Beingaggrieved, the appellant-Board filed writ petition in W.P.No.23720 of2002 challenging the award of the Labour Court.G

5. The learned Single Judge found that the workmen have notproduced any documents to show that they have worked continuouslyfor 240 days. The learned Single Judge also pointed out that theManagement also has not produced any documents to show that therespondents-workmen have not worked continuously for 240 days.

H

However, the learned Single Judge affirmed the award passed by theLabour Court to the extent of reinstatement of the workmen. Insofar asthe back wages are concerned, the learned Single Judge held that sincethe matter has been pending from 1991, the respondents-workmen areentitled to get 50% back wages only.

6. Being aggrieved, the appellant-Board has filed the writ appealbefore the Division Bench which came to be dismissed by the impugnedjudgment. Being aggrieved, the appellant-Board has preferred the presentappeals.

7. On 10.08.2018, the Supreme Court granted stay of the impugnedjudgment on condition that the appellant-Board to pay a sum ofRs.2,00,000/- (Rupees two lakhs) to each of the contesting respondentsin addition to the amount that has already been paid to the respondents.Mr. Paramasivam, learned counsel appearing on behalf of the appellant-Board has submitted that in compliance of the order dated 10.08.2018,the appellant-Board has paid Rs.2,00,000/- (Rupees two lakhs) to eachof the respondents which has been recorded (vide order dated14.01.2019).

8. We have heard Mr. Paramasivam, learned counsel appearingon behalf of the appellant-Board as well as Ms. Sanya Kumar, learnedcounsel appearing on behalf of the respondents-workmen.

9. In the judgment passed in the writ petition, the learned SingleJudge has pointed out that the respondents-workmen have not producedany documents to prove that they have worked continuously for 240days. For temporary worker like NMR respondents, it is mandatory toshow that they have continuously worked for 240 days in a year. Thisaspect, in our view, ought to have been taken note by the Division Benchbefore affirming the order of reinstatement of the respondents. In theimpugned judgment, the Division Bench has observed that the attendanceregister, salary certificates and other relevant documents were in thepossession of the appellant-Board and the same were not marked asdocuments. It is to be pointed out that the initial burden is upon therespondents-workmen to adduce evidence showing that they have workedcontinuously for 240 days. Only when the initial burden is discharged bythe respondents-workmen, the burden can be shifted upon the appellant-Board. Both the Single Judge as well as the Division Bench were notright in placing the burden upon the appellant-Board to prove that therespondents-workmen had not worked continuously for 240 days in a A

B

CD

E

F

G

H

Ayear. However, in the peculiar facts and circumstances of the case, weare not inclined to go into this question any further. The reason beingthat most of the respondents have attained the age of superannuationtherefore, there is no question of reinstatement.

10. All that we are concerned is the payment of 50% back wagesBand also the quantum of money payable in lieu of reinstatement. Learnedcounsel appearing for the appellant- Board has produced a chart as tothe 50% back wages payable from the date of termination upto theorder of the Labour Court dated 12.04.2000 at the rate of Rs.18/- perday as wages payable and also 50% of the back wages payable as perschedule rates from the date of termination till the date crossing the ageClimit or death which reads as under:- 50% BACK WAGES CALCULATED FROM THE DATE OFTERMINATION TILL THE DATE OF CROSSING OF AGELIMIT OR DEATHSl.No.NameDate of Date of 50% back 50% of Total 50% back Amount Dtermination crossing wages from back amount wages as already paid age limit the date of wages payable per the including (or) death termination from schedule Rs.2,00,000/- upto Labour 13.04.2000 rates from as ordered by Court order till the date the date of the Hon’ble dt.12.4.2000 of crossing termination Court at Rs.18/- the age till per day limit or crossing Ewage paid at the time death the limit (or) age of death termination1234567[3+4] 1.R. 31.05.199006.02.20113170732310640172,35,3942,64,525PiramuthuF2. K. Thangappan13.08.1990 12.06.2010 31329 30114 61443 1,96,694 2,60,205 3.S. Ponnaian23.07.199001.06.20113150933255647642,42,8372,66,6854.V. Harris23.07.199024.04.20183150934038655475,73,6332,71,2805. N. 23.07.1990 18.09.2004 31509 14355 45864 1,30,172 0 Muthusamy (Death) Nadar 6.D. 13.08.199022.05.20133196839654716223,09,3732,7,9105GSundararaj7. M. Nadesan 06.08.1990 08.04.2017 31392 46431 77823 4,04,780 4,67,130 8.N. 29.06.199009.05.20133171642363740793,19,7382,70,740Yesudhas9.S. Johnson31.07.199025.02.20193143749257806943,70,1136,75,67910. V. 06.08.1991 03.06.2013 31392 42570 73962 2,85,300 2,71,280 SathiyadasTotal:3,15,468/-3,64,347/-6,79,815/-30,68,034/-30,26,629/-H

The above amount so far paid to the respondents under Section17-B of the Industrial Disputes Act, 1947 and Rs.2,00,000/- paid to eachof the workmen (except M. Muthuswamy Nadar-who is dead) shall betreated as back wages and also the compensation in full quit of all claimsin lieu of reinstatement and all other claims.

11. The appeals are disposed of with the following directions andobservations:-

The amount already paid to each of the respondents (includingRs.2,00,000/- ordered by the Supreme Court) shall be in full quit of allclaims including 50% back wages and also the quantum of compensationin lieu of reinstatement. So far as the respondent–M. Muthuswamy Nadar(appeal arising out of Writ Appeal No.1439 of 2016) is concerned, theamount of Rs.2,00,000/- (Rupees two lakhs) ordered by this Court shallbe paid to his legal representatives by the appellant-Board. The amountlying in the deposit of Labour Court/High Court along with accrued interestis ordered to be refunded to the appellant-Board.

12. The above order is passed in the peculiar facts andcircumstances of the case and may not be quoted as a precedent.

Divya Pandey

Appeals disposed of.

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H