Madras High Court
The Management vs The Appellate Authority Under The on 9 March, 2023
W.P.(MD)No.8435 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.R.SWAMINATHAN
W.P(MD).No.8435 of 2020
and
W.M.P.(MD)Nos.7822, 12401 and 12399 of 2020
The Management,
Poorman Depot (Vanavil),
7,Chidambara Nagar,
Tuticorin - 628 008.
represented by its Managing Partner ... Petitioner
Vs
1.The Appellate Authority under the
Tamilnadu Shops and Establishments Act,
(Joint Commissioner of Labour)
Tirunelveli.
2.Senthil Nayagi
3.Brinda KUmari
4.Essakiammal
5.Selvajothi ... Respondents
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W.P.(MD)No.8435 of 2020
Prayer:- Writ Petition is filed under Article 226 of Constitution of India to
issue a Writ of Certiorari or any other appropriate writ or order or direction
in the nature of writ calling for the records relating to the impugned order
dated 20.3.2020 passed by the 1st respondent in T.N.S.E.A.No.01/2017
T.N.S.E.A.No. 02/2017 T.N.S.E.A.No.3/2017 and T.N.S.E.A.No. 04/2017
and quash the same as illegal
For Petitioner : Mr.M.Jerin Mathew
for M.E.Ilango
For R1 : Mr.G.Suriyanantha
Additional Government Pleader
For R2 to R5 : Mrs.M.Nandhini Priyadharshini
for Mrs.D.Geetha
ORDER
Heard the learned counsel on either side.
2. The writ petitioner is a private departmental store. The private
respondents herein filed appeals before the appellate authority under the
Tamil Nadu Shops and Establishments Act, Tirunelveli, under Section 41 of
the Act. By the impugned order dated 20.03.2020 all the appeals were
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W.P.(MD)No.8435 of 2020
allowed and the management was directed to reinstate the claimants.
Questioning the said order, the present writ petition has been filed.
3. The learned counsel for the writ petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and
called upon this Court to set aside the impugned order and allow the writ
petition as prayed for. His primary contention is that the management had
taken a specific stand that the claimants had not worked in the shop in
question continuously for a period of six months and that therefore their
appeals were not maintainable. The learned counsel submitted that the
management can only deny the averments put forth by the applicants and
that they cannot be expected to prove the negative. Since the claimants had
not placed any materials to show that they had worked in the petitioner's
shop continuously for a period of six months, the authority erred in allowing
their appeals.
4. The learned counsel appearing for the private respondents
submitted that the impugned common order deserves to be sustained.
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W.P.(MD)No.8435 of 2020
5. I carefully considered the rival contentions and went through the
materials on record. The proposition projected by the learned counsel for
the petitioner that one cannot be expected to prove the negative, is beyond
cavil. In this case, the claimants have been working in a departmental store.
It is not the case of the departmental store that they are having a regular
register containing the list of permanent and casual employees. If according
to the management, the private respondents were employed only
occasionally and during festival times, then they must have placed
documents in that regard. When a worker is pitted against the management,
while ofcourse the rules of evidence will not change, the mode of
appreciation will definitely be different. Section 106 of the Evidence Act is
to the effect that if there are certain facts which are within the especial
knowledge of a person, then the burden of proof of the same is on that
person.
6. The registers regarding employment would be only with the
petitioner and the workman will not have any access to the same. It is seen
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W.P.(MD)No.8435 of 2020
from the impugned order that the workers filed I.As seeking copies of
certain documents and that even though the IA were allowed the documents
were never furnished. More than anything else, the management failed the
cross examine the witness who was examined on the side of the employees.
Not only the management failed to cross examine the employees' witness
but also did not adduce any contra evidence. It is because of these four
reasons, namely a) non furnishing of documents which were ordered to be
produced; b) failure to cross examine the employees' witness; c) failure to
adduce any evidence on their side and d) non-production of attendance and
other registers, that led to the allowing of the appeals. The appellate
authority has only ordered reinstatement of the petitioner's. Back wages
have not been ordered. In this view of the matter, the order impugned in
this writ petition does not call for interference. The petitioner/ management
is directed to reinstate the private respondents immediately.
7. Accordingly, this writ petition stands dismissed. When the
authorities under the Act dispose of the appeals, they must catalogue the
witnesses examined and the documents marked. In the judgment of any
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W.P.(MD)No.8435 of 2020
civil Court or criminal Court these details will be found after the body of the
judgment. The authorities would be well advised to adopt the very same
practice. No costs. Consequently, connected miscellaneous petitions are
closed.
09.03.2023
NCC : Yes/No
Index :Yes/No
Internet :Yes / No
pnn
To
The Appellate Authority under the
Tamilnadu Shops and Establishments Act,
(Joint Commissioner of Labour)
Tirunelveli.
_________
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.8435 of 2020
G.R.SWAMINATHAN, J.
pnn
W.P(MD).No.8435 of 2020
and
W.M.P.(MD)Nos.7822, 12401 and 12399 of 2020
09.03.2023
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https://www.mhc.tn.gov.in/judis
