Dismissing a writ petition, the High Court upheld the Labour Court award reinstating a daily wager employee with 50% backwages, rejecting the management's claim that she abandoned service or failed to prove regular employment.
Writ petition dismissed; Labour Court award involving reinstatement upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON 24.01.2020 ORDER DELIVERED ON 05.02.2020 CORAM THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU W.P.No.31451 of 2018 and W.M.P.No.36647 of 2018
The Management of
M/s. Bhakthavatsalam Vidhyashram, No.596, A1 & A2, TNHB Colony, Periyar Nagar, Korattur, Chennai - 600 080 .. Petitioner vs M.Rajeswari W/o Munuswami ... Respondent
Writ Petition filed under Article 226 of the Constitution of India praying to issue Writ of Certiorari to call for the records relating to the order of the III Additional Labour Court in I.D.No.234 of 2016 dated 25.01.2018 and quash the same.
The present writ petition is filed challenging the award of the Labour Court made in I.D.No.234/2016 dated 25.01.2018.
(a) The petitioner is an Educational Institution. The duty of the respondent is to clean the class rooms and verandahs and also to take care of small children. Thus, the respondent was working as a daily wage employee in the petitioner Institution as Ayah from 07.06.2010. From 02.04.2016, the respondent was continuously absent. She neither submitted any leave application nor obtained permission from the petitioner Management for her absence. In order to maintain cleanliness of the class rooms and verandahs, the petitioner engaged other contract workman to do
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the job, which was done by the respondent. It was a regular practice of the respondent to absent from duty without obtaining permission from the Management nor submitting any leave application. The list of number of days where the respondent was absent without obtaining permission from the Management is detailed below:
| Period(year) | No. of days absent without permission |
|
|---|---|---|
| June | 2010-April 2011 | 13 ½ days |
| June | 2011-April 2012 | 7 ½ days |
| June | 2012-April 2013 | 17 ½ days |
| June | 2013-April 2014 | 6 days |
| June | 2014-April 2015 | 4 ½ days |
| June | 2015-April 2016 | 7 ½ days |
(b) Since the respondent has taken a long leave, the Management was under the impression that she has abandoned her service. If a person is absent for a long period, for which, leave of any kind was not granted, he should have been treated to have resigned and ceased to be in service. In such a case, there is no need to hold an enquiry or to give any notice, since the respondent admitted that she was working only as a daily wager. The petitioner never treated the respondent as permanent employee. Hence, no domestic enquiry was conducted. The respondent raised an Industrial Dispute in I.D.No.234/2016. The Labour Court passed an award directing the petitioner Management to reinstate the respondent with continuity of service and 50% backwages. After the award, since there was no vacancy in the High School, the petitioner Management spoke to the Bakthavatachalam Memorial Trust, which is running the High School and a College for Women, both Institutions located in the same Campus. The Trust agreed to reinstate the respondent in Bakthavatchalam Memorial College. Accordingly, the said Trust sent a letter to the respondent on 07.11.2018 calling upon the respondent to report duty immediately to reinstate her in the College. However, the respondent, on receipt of the said letter did not join duty. Therefore, the Management is left with no other option except to challenge the order of the Labour Court. Hence, the present writ petition.
She was working under the writ petitioner as Ayah from 07.06.2010 continuously till 02.04.2016 without any break. She was under medical treatment for severe fever from 02.04.2016 to
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27.04.2016 and the same has been duly informed to the Management. After recovery, she reported for duty on 28.04.2016 and produced necessary medical certificate. However, she was informed that there was no work for her and asked her to submit resignation letter. Though she reported for duty on several times after 28.04.2016, the same was not considered. Hence, after issuing notice to the Management, she filed a petition under section 2A of the I.D. Act before the Labour Officer. In the conciliation proceedings, the Management failed to file any reply. Hence, the conciliation ended in failure. Consequently, I.D.No.234/2016 was filed, where the Labour Court has passed the impugned award. It is wrong to state that the respondent was working on daily wages. She was paid monthly salary of Rs.5,500/- . In view of her sickness, she had to undergo treatment for 25 days and the doctor also certified that she is fit to join duty from 28.04.2016. The writ petitioner having permitted this respondent to avail leave, it is meaningless to accuse this respondent that she had never informed about her leave. She had availed only 25 days medical leave which cannot be construed to be a long one. Apart from the post in which this respondent was working, two more vacancies arose after the impugned award was passed, when an Ayah by name, Kanniga retired on 30.06.2018 and another Ayah by name, Jayarani expired on 14.04.2019. In view of the award passed by the Labour Court, the petitioner Management has to reinstate this respondent in the same position as she held before her termination. She sent a letter dated 12.02.2018 and another letter through Union dated 03.07.2018 expressing her willingness to join duty. Even after receipt of those letters, the Management did not come forward to reinstate her. Hence, she filed a Claim Petition in C.P.No.181/2018 before the Labour Court claiming backwages. The service conditions for workers are entirely different in Baktahvatchalam Vidhyasham School, where she was employed, while the Bakthavatchalam Memorial College, which is affiliated to the Madras University is having a different service condition. Therefore, this respondent rejected the offer of alternate employment in another concern.
(a) The respondent was a temporary employee. She did not work for 240 days in a calendar year. The burden is on the respondent to prove that she worked for 240 days in 12 months and such onus is not discharged by the respondent. The respondent has also admitted in her cross examination that she worked as temporary employee. 1981(3) SCC 225 (Mohan Lal vs. Bharat Electronics Ltd.) and 2018(15) SCC 641 (Mohd.Ali vs. State of Himachal Pradesh & Ors) are relied on in support of the
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contention that burden is on the workman to prove that he worked for 240 days. The Labour Court has not rendered any finding regarding the issue of 240 days working.
(b) If Section 25(f) is violated, only compensation can be awarded. In support of such contention, the following decisions are relied on:
i) 2009(15) SCC 327 (Jagbir Singh vs. Haryana State Agriculture Marketing Board and another), ii) 2010(9) SCC 126 (Incharge Officer and another vs. Shankar Shetty), iii) 2012(1) SCC 558 (BSNL vs. Man Singh), iv) 2013(5) SCC 136 (Rajasthan Development Corporation vs. Gitam Singh),
v) 2013(10) SCC 253 (Vijay S.Sathaye vs. Indian Airlines Limited & Ors),
vi) 2016(16) SCC 610 (State of Madhya Pradesh and another vs. Vinod Kumar Tiwari), vii) 2018 (12) SCC 298 (District Development Officer & another vs. Satish Kantilal Amrelia).
(c) If absence is for a long period, it is to be construed as abandonment. In support of the above contention 2013(10) SCC 253 (Vijay S.Sathaye vs. Indian Airlines Limited & Ors) is relied on.
(d) Reinstatement is only an exception and not a rule.
In this connection 2018(12) SCC 294 (Rashtrasant Tukdoji aharaj Technical Education Sanstha v. Prashant Manikrao Kubitkar) is relied on. Inspite of all these factors, though the petitioner Management was willing to take the respondent into the College, she refused to accept such offer/reinstatement and therefore, she is not entitled for any indulgence from this Court.
(a) The Labour Court passed the award of reinstatement with 50% of backwages only. The claim of the respondent that she worked as Ayah from 17.05.2010 to 02.04.2016 is not specifically denied by the respondent Management in their counter filed before the Labour Court. They only disputed the initial date of joining and contended that it was 07.06.2010 and not 17.05.2010. No notice was issued and no enquiry was conducted before terminating the petitioner. The Management did not file any document before the Labour Court. On the other hand, this respondent marked three documents. When the award was not implemented, the respondent filed Claim Petition. In letter dated 07.11.2018, the Management expressed their inability to comply with the award only by stating that there was no vacancy.
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There were two vacancies caused due to the retirement of one Kanniga and the death of one Jayarani on 30.06.2018 and 14.04.2019 respectively. Therefore, the Management was not justified in saying that there was no vacancy. This respondent did not abandon the service. Since the petitioner Management did not say in their counter before the Labour Court that this respondent did not work for 240 days, the said issue cannot be raised as the first time before this Court. This respondent received monthly wages. Even otherwise, the workman is not required to prove 240 days working if there is a clear cut admission or no specific denial about the said position. In this connection, the judgment reported in 2010(3) SCC 192 (Harjinder Singh vs. Punjab State Warehousing Corporation) is relied on.
(b) Only under four circumstances alone compensation in lieu of reinstatement can be given for violation of Section 25(f). The Hon'ble Apex Court in AIR 2015 SC 357 (Tapash Kumar Paul vs. BSNL) has spelt out those four circumstances. None of those circumstances was existing in this case. Therefore, the petitioner Management is not justified in stating that compensation alone can be awarded and not reinstatement. In this connection, the judgments reported in 1980(4) SCC 443 (Surendra Kumar Vs. Industrial Tribunal) and 1988(1) LLN 259 (Bombay) (Gaurishankar Vishwakarma vs. Eagle Spring Industries Pvt.Ltd. and Ors.) are also relied on in favour of the respondent.
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in support of the writ petition, it is only stated that the respondent's duty was to clean the class rooms and verandah and also to take care of small children and that the respondent was working on daily wage in the petitioner Institution as Ayah from 07.06.2010 and that from 02.04.2016, the respondent was continuously absent. Therefore, from the very pleadings of the petitioner Management, both before the Labour Court and this Court, it is evident that the respondent was working in the petitioner Management, if not from 17.05.2010, as claimed by the respondent, atleast from 07.06.2010, as admitted by the petitioner Management. Under such circumstances, the learned counsel for the petitioner is not supported by any pleadings for his contention that the respondent did not work for 240 days in 12 calendar months. Even according to the petitioner Management, the respondent was continuously absent from 02.04.2016. Therefore, it is evident that from 07.06.2010 till 02.04.2016 nearly for a period of six years, the respondent was continuously working in the petitioner Management. Even going by the contention of the Management regarding number of days, the respondent was absent without permission from June 2010 to April 2016 for each year, as given in the tabular column, would only indicate that it ranges from 4 ½ days to the maximum of 17 ½ days. Therefore, the contention of the petitioner Management that the respondent did not work for 240 days is liable to be rejected.
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General denial of the pleadings of the other party cannot be taken as shelter in the absence of specific denial or contra pleading. In other words, what is denied by the other side alone need to be proved by the claimant by adducing evidence. Therefore, I am of the view that the contention of the Management that the petitioner has not proved before the Labour Court about her continuous employment is liable to be rejected. A feeble attempt was made by the Management to rely upon the statement made by the respondent during cross examination as if she was a temporary employee. Assuming that she has admitted that she was a temporary employee, the fact remains, based on the admitted pleadings of the respective parties that she was continuously engaged in such capacity from 2010 to 2016 onwards. Therefore, the Management is not justified in taking shelter under the statement made by the respondent during her cross examination totally ignoring their stand taken in the counter affidavit.
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observed as follows:
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the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latters source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
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of compensation would meet the ends of justice. Perusal of the facts and circumstances of the above case would show that the workman therein had worked only for a period of 2 years and 3 months and approached the Labour Court, after a period of 13 years. Therefore, compensation in lieu of reinstatement without backwages was justified in that case by making observation that reinstatement in service is not the rule but an exception. First of all, it is to be noted that the said decision is not to be construed as if there can be no reinstatement in all cases of violation of Section 25(f). On the other hand, it is stated that under exceptional circumstances, the reinstatement can be ordered. In this case, it is to be noted that the respondent had worked for 6 years continuously and she was denied employment without issuing any notice and conducting an enquiry. Denial of employment was on the reason that the respondent continuously absent from 02.04.2016. On the other hand, it is the claim of the respondent that she was suffering from severe fever from 02.04.2016 to 20.04.2016 and by duly informing the Management about the same, she reported duty on 28.04.2016 and produce necessary medical certificate along with her leave application. However, the Management did not permit her to join duty. When such being the case of the respondent, the Management is not justified in contending that she is not entitled to any notice followed by enquiry. Since the retrenchment is passed on the allegation of unauthorised absent, the Management ought to have followed due process of law by issuing notice and conducting enquiry. In this case, it has not been done so. Therefore, such violation of principles of natural justice would come under the purview of exceptional circumstances as contemplated in the decision of the Apex Court warranting reinstatement in service, instead of awarding compensation as claimed by the petitioner Management.
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other hand, the respondent specifically claimed that she reported duty on 28.04.2016 along with medical certificate and that she was denied employment. In support of such pleadings, she also filed Ex.W1 medical certificate before the Labour Court. To disprove the same, the Management has not adduced any documentary evidence. Therefore, the reliance placed by the learned counsel for the petitioner in the above decision of the Apex Court is also of no avail.
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find that the award of the Labour Court in ordering reinstatement is just and proper and does not require any interference. Accordingly, the Writ Petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Sd/-
Asst.Registrar (CS VI )
/true copy/
Sub Asst. Registrar
vsi
To
The III Additional Labour Court,
Chennai.
+1 cc to Mr.R.Parthipan Advocate sr8845
+1 cc to Mr.S.Ravi Advocate sr8874
W.P.No.31451 of 2018
and
W.M.P.No.36647 of 2018
nrl(co)
aa25/02/2020
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3 issues framed by the court
Whether the petitioner can raise a new objection for the first time before the High Court that the respondent did not work for 240 days in 12 calendar months.
Whether compensation in lieu of reinstatement is justified under Section 25(f) of the Industrial Disputes Act absent specific grounds.
Whether the respondent's absence constituted abandonment of service requiring no notice or enquiry.
Colour shows how this judgement treated each authority
Mohan Lal vs. Bharat Electronics Ltd.Referred¶20
1981(3) SCC 225 · Who else cites this
Mohd. Ali vs. State of Himachal Pradesh & OrsReferred¶20
2018(15) SCC 641 · Who else cites this
Jagbir Singh vs. Haryana State Agriculture Marketing Board and anotherReferred¶24
2009(15) SCC 327 · Who else cites this
Incharge Officer and another vs. Shankar ShettyReferred¶24
2010(9) SCC 126 · Who else cites this
BSNL vs. Man SinghReferred¶24
2012(1) SCC 558 · Who else cites this
Rajasthan Development Corporation vs. Gitam SinghReferred¶24
2013(5) SCC 136 · Who else cites this
Vijay S.Sathaye vs. Indian Airlines Limited & OrsDistinguished¶26
2013(10) SCC 253 · Who else cites this
State of Madhya Pradesh and another vs. Vinod Kumar TiwariReferred¶24
2016(16) SCC 610 · Who else cites this
District Development Officer & another vs. Satish Kantilal AmreliaReferred¶24
2018 (12) SCC 298 · Who else cites this
Rashtrasant Tukdoji aharaj Technical Education Sanstha v. Prashant Manikrao KubitkarDistinguished¶30
2018(12) SCC 294 · Who else cites this
Harjinder Singh vs. Punjab State Warehousing CorporationReferred¶33
2010(3) SCC 192 · Who else cites this
Tapash Kumar Paul vs. BSNLApplied¶3648
AIR 2015 SC 357 · Who else cites this
Surendra Kumar Vs. Industrial TribunalReferred¶36
1980(4) SCC 443 · Who else cites this
Gaurishankar Vishwakarma vs. Eagle Spring Industries Pvt.Ltd. and Ors.Referred¶36
1988(1) LLN 259 (Bombay)
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and OrsDistinguished¶55
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya
2 provisions across 2 enactments
Management of M/s. Bhakthavatsalam Vidhyashram
M. Rajeswari
K. Ravichandrababu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
