@JUDGMENTTAG-ORDER
S.K. Krishnan, J.@mdashAggrieved by the order of the learned Single Judge dated 13.11.2000, passed in W.P.No. 15917 of 1995, the Management of Madras Ashoka Hotel has filed this Writ Appeal under Clause 15 of the Letters Patent.
2. The facts, in brief, giving rise to this appeal are as follows:
"The first respondent/petitioner claims that he was working as a room cleaner from 1978 onwards under the appellant/second respondent and that thereafter he was promoted as server and he was paid Rs. 500 per month as salary. On 26.12.1985, the appellant without holding any enquiry or issuing any notice terminated the first respondent from service. Aggrieved by the same, the first respondent raised an Industrial Dispute in I.D.No. 23 of 1992, before the I Additional Labour Court, Madras, in view of the direction given by the Government of Tamil Nadu in G.O.(D) No. 51, dated 8.1.1992, following the direction given by this Court in W.P.No. 4593 of 1989. The Labour Court passed an award dismissing the reference in I.D.No. 23 of 1992. As against that award, invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the first respondent filed a Writ Petition in W.P.No. 15917 of 1995, whereby the appellant was directed to reinstate the first respondent into service with all back wages and attendant monetary benefits. Hence the present appeal.
3. Heard the learned Senior Counsel for the appellant and the learned counsel for the first respondent.
4. The learned Senior Counsel appearing for the appellant would contend that the order passed by the learned Single Judge of this Court is not at all sustainable either under law or on facts.
5. It is contended by the learned Senior Counsel that the first respondent was not at all employed as a room cleaner from 1978 onwards, but was working as a temporary workman under the appellant from July 1984 to August 1985 on daily wages basis at the rate of Rs. 10 per day but not Rs. 500 per month, that too only for a limited period of 133 days and thereafter he stopped attending the work and therefore, no question of termination, issuing of notice or conducting of enquiry, would arise and consequently the claim of reinstatement and attendant benefits cannot be accepted.
6. With regard to continuous service of 240 days in a year, it is contended by the learned Senior Counsel that the learned Single Judge of this Court was under the wrong impression that the first respondent completed continuous service of 240 days and that he should not have been terminated without issuing a notice as prescribed u/s 19 of the Tamil Nadu Catering Establishments Act, 1958 and consequently, he held that the termination was illegal and contrary to law.
7. With regard to non-production of certain registers to be maintained as per the Act by the appellant/management, the learned Senior Counsel would contend that for producing such registers at the time of enquiry before the Tribunal, the first respondent has not-at all taken any steps to call for those records for establishing his case.
8. In this connection, the learned Senior Counsel would contend that when there is no documentary evidence available on records with reference to the steps taken by the first respondent to call for records, the view taken by the learned Single Judge of this Court that even after the service of summons the registers were not furnished is not acceptable.
9. Per contra, the only contention raised by the learned counsel for the first respondent is that no opportunity was given to the first respondent to prove his case. Further he would contend that though strenuous efforts have been taken for producing certain registers to be maintained as per the Tamil Nadu Catering Establishment Act, the appellant have not produced the same. If those documents had been produced before the Labour Court, the first respondent could have got the opportunity to prove his case.
10. As pointed out by the learned Senior counsel, the learned Single Judge of this Court was under the wrong impression that the first respondent has been attending the work under the appellant from 1978 onwards and therefore, as per the provision of Section 19 of the Tamil Nadu Catering Establishments Act, 1958, the appellant ought to have given notice or wages in lieu of notice to be issued to the first respondent before his termination. Further, the learned Single Judge was of the view that since the appellant failed to comply with the provisions of Section 19 of the Tamil Nadu Catering Establishment Act, 1958, the termination of the first respondent is contrary to law and therefore, the first respondent is entitled to be reinstated with attendant benefits.
11. Section 19 of the said Act reads thus:
"(1) No employer shall dispense with the services of an employee employed (for a period of not less than one hundred and twenty days during a period of six months) except for a reasonable cause and without giving such employee at least one month''s notice or wages in lieu of such notice, provided however such notice shall not be necessary where the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose."
12. In this connection, the learned counsel appearing for the appellant would vehemently contend that in view of Section 19 of the Tamil Nadu Catering Establishments Act, 1958, the decision arrived at by the learned Single Judge of this Court is not at ail sustainable under law for the reason that when the first respondent himself has not established his case to attract Section 19 of the Act, the question of issuing notice u/s 19 of the Act does not arise. The learned Senior Counsel has stated that the appellant produced relevant records, namely, Ex.M.1 to M.4, 11, 13 and M.14, before the Tribunal below for proving the fact that the first respondent was employed under the appellant only for 133 days and not 240 days or more. In this connection M.W.I deposed that the first respondent had attended the work only for 133 days from July 1984 to August 1985. Thus, the learned Senior Counsel would point out that, the appellant proved their case by adducing oral evidence as well as documentary evidence.
13. It is pointed out by the learned Senior Counsel that the first respondent neither adduced any satisfactory evidence nor produced any relevant records to show that he has attended the work under the appellant from 1978 onwards till 26.12.1985. In this regard, the evidence of P.W.2 is also not helpful to establish the case of the first respondent. Whereas the appellant has proved that the first respondent attended the work only for 133 days by producing Ex.M.10 which contains the relevant particulars with regard to the work attended by the first respondent from July 1984 to August 1985. This fact has been elaborately discussed by the Tribunal and concluded that the first respondent is not entitled to reinstatement. In such circumstances, the learned Senior Counsel would point out that the order of the learned Single Judge of this Court is not at all sustainable under law.
14. The Labour Court, on the basis of oral and documentary evidence, gave the following finding:
"As we have seen already from the counter filed by the respondent before the Labour Officer and before this Court and the annexure therein would clearly go to show that the petitioner has served under the respondent establishment only for 133 days. As we have seen already the petitioner has not produced any document to prove that he was in continuous service under the respondent establishment for more than 240 days in a year. Further the has not controverted the counter statement filed by the respondent by filing a rejoinder or otherwise."
15. When the Labour Court, on the basis of oral and documentary evidence, gave a categorical finding that no document was produced to show that the first respondent was in continuous service for more than 240 days and the documents available on record would only show that the first respondent had worked only for a limited period of 133 days under the appellant and when there is no corrobating oral evidence to support the claim of the first respondent, we are of the view that the first respondent had not worked for more than 133 days under the appellant.
16. Since the first respondent failed to prove his case that he had worked for a period of not less than one hundred and twenty days during a period of six months and Section 19 of the Tamil Nadu Catering Establishments Act, 1958, is very clear regarding period of service, we are of the view that the first respondent has no right to claim anything from the appellant as he had worked only for 133 days from July 1984 to August 1985.
17. With regard, to the non-production of certain registers to be maintained by the appellant under the Tamil Nadu Catering Establishments Act, 1958, the learned Senior counsel would point out that when the first respondent himself has not taken any steps to call for the records from the appellant, the view taken by the learned Single Judge of this Court that the appellant had not produced the registers to be maintained even after service of summons and that instead of drawing adverse inference by the Tribunal, it has taken a wrong view which adversely affected the right of the first respondent, is not correct.
18. It is seen that no documents are available on records in connection with the steps taken by the first respondent to call for the records and relevant registers to be maintained by the appellant under the Tamil Nadu Catering Establishments Act, 1958. It is also seen that this point has been dealt with by the Tribunal in an elaborate manner. In such circumstances, we do not agree with the view taken by the learned Single Judge of this Court.
19. Further, the learned senior counsel appearing for the appellant would vehemently contend that the burden of proving the fact lies only on the first respondent who has to prove his case, for which, he strongly relied upon the following decisions.
20. In
"3........ In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
21. Following the above principles, the Apex Court, in
22. From the above decisions, it is clear, as rightly pointed out by the learned Senior Counsel, that in the wake of denial of the service of the first respondent by the appellant, it is for the first respondent to lead evidence to show that he had worked for more than 240 days in the year preceding his termination and the contention of the learned counsel for the first respondent that the burden of proof lies on the appellant cannot be accepted.
23. In the light of the above discussions and in view of the above legal position, we are of the view that the order of learned Single Judge of this Court is not sustainable under law and therefore, the same is liable to be set aside. Accordingly, while setting aside the order of the learned Single Judge of this Court, the award of the Labour Court is restored.
24. In result, the Writ Appeal is allowed. No costs.
