Industiral disputes – labour court – worked continuously for 240 days.= Store Watchman on daily wages under NMR basis temporarily in newly created Sectional stores in various Sub Divisions under the control of Rural Water Supply (RWS) Divisions, Nagercoil = Burden lies on whom = It is to be pointed out that the initial burden is upon the respondents-workmen to adduce evidence showing that they have worked continuously for 240 days. Only when the initial burden is discharged by the respondentsworkmen, the burden can be shifted upon the appellant-Board. Both the Single Judge as well as the Division Bench were not right in placing the burden upon the appellant-Board to prove that the respondents-workmen had not worked continuously for 240 days in a year.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4875-4884 OF 2019
(Arising out of SLP(C) Nos.21962-21971 OF 2018)
THE SUPERINTENDING ENGINEER …Appellants
TWAD BOARD & ANOTHER

VERSUS
M. NATESAN ETC. …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.

  1. These appeals arise out of the judgment dated 16.12.2016
    passed by the High Court of Madras in Writ Appeal No.1434 of
    2016 and batch in and by which the High Court has affirmed the
    order of the learned Single Judge directing reinstatement and the
    back wages at 50%.
  2. Between 1986-89, the respondents were engaged as Store
    Watchman on daily wages under NMR basis temporarily in newly
    created Sectional stores in various Sub Divisions under the
    control of Rural Water Supply (RWS) Divisions, Nagercoil. In the
    Engagement Order, it has been specifically mentioned that the
    1
    engagement on daily wage basis will be purely temporary and the
    services will be terminated when the requirement is over and that
    they cannot claim any right for any further appointment in TWAD
    Board. In the Engagement Order itself, it is clearly stated that
    engagement is purely temporary and their services will be
    terminated when the requirement is over without prior notice. In
    view of the Board decision, all the Sectional stores were closed
    and the Divisional stores (each for one district) were formed.
    Consequent on formation of Divisional stores, the respondents
    were terminated from their services in the year 1990 for want of
    vacancies.
  3. The respondents raised an industrial dispute and on failure
    of the conciliation proceedings, the same was referred to the
    Labour Court, Madurai. The Labour Court allowed the petitions
    and held that the termination of the services of the respondents is
    not valid and is not sustainable. The Labour Court passed the
    award on 12.04.2000 directing reinstatement of the respondents
    into service with back wages for the period of non-employment
    and with continuity of service. Being aggrieved, the appellantBoard filed writ petition in W.P.No.23720 of 2002 challenging the
    award of the Labour Court.
    2
  4. The learned Single Judge found that the workmen have not
    produced any documents to show that they have worked
    continuously for 240 days. The learned Single Judge also pointed
    out that the Management also has not produced any documents
    to show that the respondents-workmen have not worked
    continuously for 240 days. However, the learned Single Judge
    affirmed the award passed by the Labour Court to the extent of
    reinstatement of the workmen. Insofar as the back wages are
    concerned, the learned Single Judge held that since the matter
    has been pending from 1991, the respondents-workmen are
    entitled to get 50% back wages only.
  5. Being aggrieved, the appellant-Board has filed the writ
    appeal before the Division Bench which came to be dismissed by
    the impugned judgment. Being aggrieved, the appellant-Board
    has preferred the present appeals.
  6. On 10.08.2018, the Supreme Court granted stay of the
    impugned judgment on condition that the appellant-Board to pay
    a sum of Rs.2,00,000/- (Rupees two lakhs) to each of the
    contesting respondents in 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
    3
    compliance of the order dated 10.08.2018, the appellant-Board
    has paid Rs.2,00,000/- (Rupees two lakhs) to each of the
    respondents which has been recorded (vide order dated
    14.01.2019).
  7. We have heard Mr. Paramasivam, learned counsel
    appearing on behalf of the appellant-Board as well as Ms. Sanya
    Kumar, learned counsel appearing on behalf of the respondentsworkmen.
  8. In the judgment passed in the writ petition, the learned
    Single Judge has pointed out that the respondents-workmen have
    not produced any documents to prove that they have worked
    continuously for 240 days. For temporary worker like NMR
    respondents, it is mandatory to show that they have continuously
    worked for 240 days in a year. This aspect, in our view, ought to
    have been taken note by the Division Bench before affirming the
    order of reinstatement of the respondents. In the impugned
    judgment, the Division Bench has observed that the attendance
    register, salary certificates and other relevant documents were in
    the possession of the appellant-Board and the same were not
    marked as documents. It is to be pointed out that the initial
    burden is upon the respondents-workmen to adduce evidence
    4
    showing that they have worked continuously for 240 days. Only
    when the initial burden is discharged by the respondentsworkmen, the burden can be shifted upon the appellant-Board.
    Both the Single Judge as well as the Division Bench were not
    right in placing the burden upon the appellant-Board to prove that
    the respondents-workmen had not worked continuously for 240
    days in a year. However, in the peculiar facts and circumstances
    of the case, we are not inclined to go into this question any
    further. The reason being that most of the respondents have
    attained the age of superannuation therefore, there is no question
    of reinstatement.
  9. All that we are concerned is the payment of 50% back
    wages and also the quantum of money payable in lieu of
    reinstatement. Learned counsel appearing for the appellantBoard has produced a chart as to the 50% back wages payable
    from the date of termination upto the order of the Labour Court
    dated 12.04.2000 at the rate of Rs.18/- per day as wages payable
    and also 50% of the back wages payable as per schedule rates
    from the date of termination till the date crossing the age limit or
    death which reads as under:-
    5
    50% BACK WAGES CALCULATED FROM THE DATE OF TERMINATION TILL THE DATE OF
    CROSSING OF AGE LIMIT OR DEATH
    Sl.
    No
    .
    Name Date of
    termination
    Date of
    crossing
    age limit
    (or) death
    50% back
    wages from
    the date of
    termination
    upto
    Labour
    Court order
    dt.12.4.200
    0 at Rs.18/-
    per day
    wage paid
    at the time
    of
    termination
    50% of
    back
    wages
    from
    13.04.200
    0 till the
    date of
    crossing
    the age
    limit or
    death
    Total
    amount
    payable
    50% back
    wages as
    per the
    schedule
    rates from
    the date of
    termination
    till crossing
    the age
    limit (or)
    death
    Amount
    already
    paid
    including
    Rs.2,00,000
    /- as
    ordered by
    the Hon’ble
    Court
    1 2 3 4 5
    [3+4]
    6 7
  10. R. Piramuthu 31.05.1990 06.02.2011 31707 32310 64017 2,35,394 2,64,525
  11. K. Thangappan 13.08.1990 12.06.2010 31329 30114 61443 1,96,694 2,60,205
  12. S. Ponnaian 23.07.1990 01.06.2011 31509 33255 64764 2,42,837 2,66,685
  13. V. Harris 23.07.1990 24.04.2018 31509 34038 65547 5,73,633 2,71,280
  14. N. Muthusamy
    Nadar
    23.07.1990 18.09.2004
    (Death)
    31509 14355 45864 1,30,172 0
  15. D. Sundararaj 13.08.1990 22.05.2013 31968 39654 71622 3,09,373 2,7,9105
  16. M. Nadesan 06.08.1990 08.04.2017 31392 46431 77823 4,04,780 4,67,130
  17. N. Yesudhas 29.06.1990 09.05.2013 31716 42363 74079 3,19,738 2,70,740
  18. S. Johnson 31.07.1990 25.02.2019 31437 49257 80694 3,70,113 6,75,679
  19. V. Sathiyadas 06.08.1991 03.06.2013 31392 42570 73962 2,85,300 2,71,280
    Total: 3,15,468/- 3,64,347/- 6,79,815/- 30,68,034/- 30,26,629/-
    The above amount so far paid to the respondents under Section
    17-B of the Industrial Disputes Act, 1947 and Rs.2,00,000/- paid
    to each of the workmen (except M. Muthuswamy Nadar-who is
    dead) shall be treated as back wages and also the compensation
    in full quit of all claims in lieu of reinstatement and all other
    claims.
    6
  20. The appeals are disposed of with the following directions
    and observations:-
    The amount already paid to each of the respondents
    (including Rs.2,00,000/- ordered by the Supreme Court) shall be
    in full quit of all claims including 50% back wages and also the
    quantum of compensation in lieu of reinstatement. So far as the
    respondent–M. Muthuswamy Nadar (appeal arising out of Writ
    Appeal No.1439 of 2016) is concerned, the amount of
    Rs.2,00,000/- (Rupees two lakhs) ordered by this Court shall be
    paid to his legal representatives by the appellant-Board. The
    amount lying in the deposit of Labour Court/High Court along with
    accrued interest is ordered to be refunded to the appellant-Board.
  21. The above order is passed in the peculiar facts and
    circumstances of the case and may not be quoted as a
    precedent.
    ..
    ………………………….J.
    [R. BANUMATHI]
    ..………………………….J.
    [R. SUBHASH REDDY]
    New Delhi;
    May 10, 2019.
    7