High CourtDivision Bench2019-05-10Appeals disposed of.

THE SUPERINTENDING ENGINEER TWAD BOARD & ANOTHER v. M. NATESAN ETC.

Case / Petition Number:Civil Appeal Nos. 4875-4884 of 2019

Neutral Citation:[2019] 7 S.C.R. 862

Case Details & Bench

Court: High Court
Hon'ble Judges: R. Banumathi
R. Subhash Reddy
Judgment Date: 2019-05-10
Court Decision / Holding: Appeals disposed of. The Court held that for temporary workers like the NMR respondents, it is mandatory to show 240 days of continuous work in a year, with the initial burden on the respondents to prove this and only then can it shift to the employer. However, due to peculiar facts, including most respondents having reached the age of superannuation, there was no question of reinstatement. The amounts already paid to each respondent (including Rs. 2,00,000 ordered by this Court) shall be in full quit of all claims including 50% back wages and compensation in lieu of reinstatement; Rs. 2,00,000 payable to the legal representatives of the deceased respondent (M. Muthuswamy Nadar); the amount lying in deposit with the Labour Court/High Court shall be refunded to the appellant-Board. The order is to be understood as a peculiarity of facts and not as a binding precedent; appeals disposed of.
Final Disposition: Appeals disposed of.

Parties to the Case

Appellants / Petitioners

The Superintending Engineer TWAD Board
Anr.

Respondents

M. Natesan
and others

Legal Representation & Advocates

Counsels for Petitioners

• C. Paramasivam
• Vinodh Kanna B.

Counsels for Respondents

• Ms. Sanya Kumar
• N. K. Verma
• Trideep Pais
• Ms. Sanya Su
• Ms. Anjana Chandrashekar

Case Synopsis & Summary

Between 1986-89, the respondents were engaged as Store C Watchman on a daily-wage basis under NMR for temporary service in sectional stores controlled by Rural Water Supply Divisions, Nagercoil. The engagement orders stated the work was purely temporary and would terminate when the requirement ended, with no right to further appointment. Following the closure of sectional stores, vacancies disappeared and the respondents were terminated in 1990. The Labour Court granted reinstatement with back wages for the period of non-employment and continuity of service. The Single Judge upheld reinstatement but limited back wages to 50% on account of the long pendency. The Division Bench affirmed reinstatement with 50% back wages. The Supreme Court stayed the judgment in 2018 on payment of Rs.2,00,000 to each respondent. The core issue centered on whether temporary workers must prove 240 days of continuous work in a year under s.17-B of the Industrial Disputes Act, 1947, and who bears the initial burden of proof. The Court clarified that the initial burden lies with the respondents, and only after discharged can it shift to the employer, but, on peculiar facts (notably age), reinstatement was not pursued further. The Court directed that the amounts already paid constitute full settlement of all claims, including back wages and compensation, and that the deposit be refunded to the appellant Board; the judgment may not be cited as a precedent.

Provisions of Law Cited

Industrial Disputes Act, 1947 – s.17-B

Legal Doctrines & Maxims

Initial burden on respondents-workmen to prove continuous work for 240 days in a year; only after this burden is discharged can it shift to the appellant-Board.
Burden-shifting principle in industrial adjudication: burden on the party asserting a claim unless the opposite party negates it.
A court’s decision on peculiar facts may not be treated as a binding precedent.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the engagement of the respondents from 1986-89 as Store C Watchmen on daily wage/NMR basis was purely temporary, with the engagement orders explicitly stating temporary status and termination on the requirement ending; no entitlement to further appointment existed. After the sectional stores were closed and vacancies ceased, reinstatement is not feasible. The mandatory 240-day continuous-work requirement under s.17-B places the initial burden on the workers to prove such continuity; the Division Bench’s burden-shifting was erroneous. Because many respondents have reached superannuation, reinstatement is impracticable, and the Rs.2 lakh already paid under stay orders should be treated as part of a full quit of all claims, including back wages; any further deposits should be returned; the judgment should not be treated as a precedent.

Contentions of Respondents

The respondents contended that they were engaged for long periods as daily-wage Store C Watchmen and continued in service until 1990 when stores were reorganized; termination without proper vacancies violated their continuity of service, justifying reinstatement with back wages. They argued that they continuously worked for 240 days in a year and the burden of proof rests on the employer only after the workers establish continuity. They sought reinstatement and back wages with continuity of service, arguing that the Division Bench erred in requiring the employer to prove non-continuity and that the evidence (attendance registers, salary certificates) supported their claims.

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Extracted Judgment Text

Exact text extracted from official judgment records.

862 SUPREME COURT REPORTS [2019] 7 S.C.R. 862 [2019] 7 S.C.R. ## A THE 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, the respondents-workmen were engaged temporarily as Store Watchman_ C _on daily wages in newly created Sectional stores in various Sub Divisions under the control of Rural Water Supply (RWS) Divisions, Nagercoil – Engagement Order mentioned that the services will be terminated when the requirement is over and that they cannot claim any further appointment in the appellant-Board – Sectional stores_ D _closed– Respondents terminated – Labour Court directed reinstatement of the respondents with back wages for the period of non-employment and with continuity of service – Single Judge affirmed the award to the extent of reinstatement of the workmen and held that since the matter was pending from 1991, the respondents were entitled to get 50% back wages only – Writ appeal_ E _– Dismissed – Held: For temporary workers like respondents, it is mandatory to show that they continuously worked for 240 days in a year – Initial burden is on them to adduce evidence – Only when the initial burden is discharged by the respondents, the burden can be shifted on the appellant – Single Judge and the Division Bench_ F _not right in placing the burden on the appellant to prove that the respondents had not worked continuously for 240 days in a year – However, in the peculiar facts and circumstances of the case, this question not gone into any further as most of the respondents have attained the age of superannuation therefore, there is no question of reinstatement – Amount already paid to each of the respondents_ G _(including Rs.2 lakhs ordered by the Supreme Court as condition for stay of the impugned judgment) shall be in full quit of all claims including 50% back wages and also the quantum of compensation in lieu of reinstatement – In appeal arising out of Writ Appeal No.1439 of 2016, Rs.2 lakhs be paid by the appellant to the legal_ H 862 863 THE SUPERINTENDING ENGINEER TWAD BOARD v. M. NATESAN ETC. _representatives of the Respondent-since deceased – Amount lying in the deposit of Labour Court/High Court along with accrued interest be refunded to the appellant – Order passed in the peculiar facts and circumstances of the case, not a precedent._ A ## **Disposing of the appeals, the Court** B **HELD: 1.1 For temporary worker like NMR respondents, it is mandatory to show that they have continuously worked for 240 days in a year. The initial burden is upon the respondentsworkmen to adduce evidence 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, this question is not gone into any further as most of the respondents have attained the age of superannuation therefore, there is no question of reinstatement. [Para 9] [865-F-H; 866-A]** C D **1.2 The amount already paid to each of the respondents (including Rs.2,00,000/- ordered by the Supreme Court) shall be** E **in full quit of all claims including 50% back wages and also the quantum of compensation in lieu of reinstatement. In appeal arising out of Writ Appeal No.1439 of 2016) Rs.2,00,000/- shall be paid by the appellant-Board to the legal representatives of the respondent-since deceased. The amount lying in the deposit of Labour Court/High Court along with accrued interest is** F **ordered to be refunded to the appellant-Board. The above order is passed in the peculiar facts and circumstances of the case and may not be quoted as a precedent. [Paras 11, 12] [867-B-D]** E CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 48754884 of 2019. G From the Judgment and Order dated 16.12.2016 by the High Court of Judicature at Madras in Writ Appeal Nos. 1434-1443 of 2016. C. Paramasivam, Vinodh Kanna B., Advs. for the Appellants. H 864 SUPREME COURT REPORTS [2019] 7 S.C.R. A Ms. 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. B 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 C 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 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 D 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 E 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 F 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. G 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. H 865 THE SUPERINTENDING ENGINEER TWAD BOARD v. M. NATESAN ETC. [R. BANUMATHI, J.] However, the learned Single Judge affirmed the award passed by the A 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 appellantBoard 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 each of the respondents which has been recorded ( _vide_ order dated 14.01.2019). B C D 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. E 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 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 appellantBoard. 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 F G H 866 SUPREME COURT REPORTS [2019] 7 S.C.R. - 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 B 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 C limit or death which reads as under:- ## **50% BACK WAGES CALCULATED FROM THE DATE OF TERMINATION TILL THE DATE OF CROSSING OF AGE LIMIT OR DEATH** **==> picture [331 x 307] intentionally omitted <==** **----- Start of picture text -----** Sl.No. Name Date of Date of 50% back 50% of Total 50% back Amount D termination 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 E wage paid at the time death the limit (or) age of death termination 1 2 3 4 5 6 7 [3+4] 1. R. 31.05.1990 06.02.2011 31707 32310 64017 2,35,394 2,64,525 Piramuthu F 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. 23.07.1990 18.09.2004 31509 14355 45864 1,30,172 0 Muthusamy (Death) Nadar 6. D. 13.08.1990 22.05.2013 31968 39654 71622 3,09,373 2,7,9105 G Sundararaj 7. M. Nadesan 06.08.1990 08.04.2017 31392 46431 77823 4,04,780 4,67,130 8. N. 29.06.1990 09.05.2013 31716 42363 74079 3,19,738 2,70,740 Yesudhas 9. S. Johnson 31.07.1990 25.02.2019 31437 49257 80694 3,70,113 6,75,679 10. V. 06.08.1991 03.06.2013 31392 42570 73962 2,85,300 2,71,280 Sathiyadas Total: 3,15,468/- 3,64,347/- 6,79,815/- 30,68,034/- 30,26,629/- H **----- End of picture text -----** THE SUPERINTENDING ENGINEER TWAD BOARD v. 867 M. NATESAN ETC. [R. BANUMATHI, J.] The above amount so far paid to the respondents under Section A 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. 11. The appeals are disposed of with the following directions and observations:- B 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 C (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. D 12. The above order is passed in the peculiar facts and circumstances of the case and may not be quoted as a precedent. Divya Pandey Appeals disposed of. E F G H