The Superintending Engineer Twad Board vs M. Natesan And Ors.

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

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. 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%.

3. Between 1986-89, the respondents were engaged as Store

Watchman on daily wages under NMR basis temporarily in newly

Signature Not Verified created Sectional stores in various Sub Divisions under the Digitally signed by MAHABIR SINGH Date: 2019.05.10

control of Rural Water Supply (RWS) Divisions, Nagercoil. In the 17:18:50 IST Reason:

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.

4. 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 appellant-

Board filed writ petition in W.P.No.23720 of 2002 challenging the

award of the Labour Court.

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5. 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.

6. 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.

7. 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).

8. 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 respondents-

workmen.

9. 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 respondents-

workmen, 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.

10. 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 appellant-

Board 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:-

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50% BACK WAGES CALCULATED FROM THE DATE OF TERMINATION TILL THE DATE OF CROSSING OF AGE LIMIT OR DEATH

Sl. Name Date of Date of 50% back 50% of Total 50% back Amount No termination crossing wages from back amount wages as already . age limit the date of wages payable per the paid (or) death termination from schedule including upto 13.04.200 rates from Rs.2,00,000 Labour 0 till the the date of /- as Court order date of termination ordered by dt.12.4.200 crossing till crossing the Hon’ble 0 at Rs.18/- the age the age Court per day limit or limit (or) wage paid death death at the time of termination 1 2 3 4 5 6 7 [3+4]

1. R. Piramuthu 31.05.1990 06.02.2011 31707 32310 64017 2,35,394 2,64,525

2. K. Thangappan 13.08.1990 12.06.2010 31329 30114 61443 1,96,694 2,60,205

3. S. Ponnaian 23.07.1990 01.06.2011 31509 33255 64764 2,42,837 2,66,685

4. V. Harris 23.07.1990 24.04.2018 31509 34038 65547 5,73,633 2,71,280

5. N. Muthusamy 23.07.1990 18.09.2004 31509 14355 45864 1,30,172 0 Nadar (Death)

6. D. Sundararaj 13.08.1990 22.05.2013 31968 39654 71622 3,09,373 2,7,9105

7. M. Nadesan 06.08.1990 08.04.2017 31392 46431 77823 4,04,780 4,67,130

8. N. Yesudhas 29.06.1990 09.05.2013 31716 42363 74079 3,19,738 2,70,740

9. S. Johnson 31.07.1990 25.02.2019 31437 49257 80694 3,70,113 6,75,679

10. 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.

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11. 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.

12. 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.

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