Madras High Court
Mbd Bus Services Management vs M. Sundaram on 3 September, 2024
W.P.No.32169 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2024
CORAM
THE HONOURABLE MS. JUSTICE R.N. MANJULA
W.P.No.32169 of 2023
and W.M.P.No.31767 of 2023
MBD Bus Services Management,
Represented by its Sole Proprietor,
S.Y.Anver Sheriff,
S/o. S.Yacub Sheriff,
Having office at:
Opposite to Arcot Bus Stand,
Arcot, Ranipet District - 632 503. ... Petitioner
Vs.
M. Sundaram ... Respondent
PRAYER: This Writ Petition is filed under Article 226 of the Constitution of
India, for the issuance of a Writ of Certiorarified Mandamus, to call for the
records pertaining to the order passed by the Additional Labour Court, Vellore,
in I.D.No.20 of 2020 (CNR No.TNVL 02-000084-2020) dated 27.02.2023, and
quash the same as arbitrary and illegal and direct the respondent not to be
reinstated in service and reduction of back wages as the oral termination held
by the management is right.
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W.P.No.32169 of 2023
For Petitioner : Mr.D.Ferdinand
For Respondent : Mr.S.T.Varadarajalu
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ORDER
The petitioner has filed this Writ Petition challenging the award
passed by the learned Presiding Officer of the Additional Labour Court, Vellore,
dated 27.02.2023 made in I.D.No.20 of 2020.
2. By virtue of the above award, the Labour Court has set aside the
Oral Termination Order of the petitioner dated 18.02.2020 and directed the
Management to reinstate the petitioner into service with continuity of service,
backwages and all other benefits. Aggrieved over that, the Management filed
this Writ Petition challenging the award on two grounds. It is submitted by the
learned counsel for the petitioner that the workman did not establish the fact
that he is a regular employee of the petitioner by producing the documents to
show that he was continuously in service for 240 days in a given year and
hence, he did not have a locus to maintain the Industrial Dispute before the
Labour Court. Further, it is submitted that without any fundamental parameters,
the learned Presiding Officer has proceeded to award backwages and hence, the
award is liable to be set aside.
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3. The learned counsel for the respondent submitted that even
according to the counter filed before the Labour Court, the respondent is
admitted to be an employee of the petitioner and he was drawing around salary
of Rs.9,5000/- per month and hence, the award of the Labour Court stands
good. Even though in the counter before the Labour Court, it is admitted that
the respondent was working as a Conductor in the Company, the learned
counsel for the petitioner tried to give further explanation by stating that the
respondent is not in continuous employment and he would report to the
Company as and when required.
4. Reliance was placed on the judgment of the Hon'ble Supreme
Court reported in (2002) 3 SCC 25 in the case of Range Forest Officer Vs. S.T.
Hadimani in support of the contention of the petitioner that the onus lies upon
the workman to show that he was working for more than 240 days in the year
preceding his termination and that the respondent did not discharge the above
burden. On perusal of the said judgment, it appears that it is the case involving
retrenchment compensation and the workman is called upon to prove before the
Court that his entitlement to compensation by virtue of continuous 240 days of
service preceding the year of his termination. But, in this case, the respondent
has filed the Industrial Dispute for reinstatement by claiming that he is the
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regular employee of the petitioner Management and that he was illegally
terminated orally. When the respondent could establish the prima facie
materials to show that he is very much an employee of the petitioner, it is for
the petitioner to prove the contrary. In this regard, it is relevant to reproduce
paragraph No.5 of the petitioner's counter, which reads as follows:-
5. I submit that the petitioner herein is not entitled wages as
contemplated under S.17 of the Industrial Disputes Act, 1947. At the
outset, I would like to submit that the averments made in the Affidavit
filed by the petitioner/respondent is factually incorrect and contrary to
the documents. Further, as already stated in my Writ Affidavit, there
has never been an Employer - Employee relationship between the
respondent and the petitioner herein. Moreover, Industrial Disputes
Act, 1947 will not be applicable as there are only 6 workers working
under the respondent. Moreover, the Petitioner was not an employee of
the respondent herein and would work on alternate days in a month on
commission basis. The respondent would work for about 10 days to 15
days maximum in a month for the petitioner and was entitled to a
commission of Rs.5/- for every Rs.100/- in fares collected from the
passengers in the bus for the that day. The commission paid to the
petitioner herein was dependent on the collection amount and was not
fixed at any point of time. The Petitioner herein on average would
make about Rs.5000 to 9000 per month and the same would be
proportionate to the revenue of the bus. The petitioner is not even
under the control and supervision of the respondent Management.
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5. When the initial burden of the respondent is discharged by
virtue of the above materials available before the Court, then the burden would
shift upon the petitioner to prove that the respondent is not a regular employee,
but, he is only a casual labourer as stated.
6. The very allegation against the respondent is that he did not pay
the entire collection amount of the fare collected by him and thereby
misappropriated the amount. The allegation on the above fact is in a generalised
manner and it is not specific about the date and quantum of amount
misappropriated.
7. The learned Presiding Officer has extracted the above evidence
of Management, wherein he has stated that no record has been produced to
show that the respondent has remitted the less amount than what he had
collected and in this regard, no complaint has been given against him.
8. The contention of the petitioner Management is that the
respondent was in the habit of remitting less amount of collection than what
was collected and that was the reason why the petitioner had chosen to
terminate the service of the respondent. In the absence of any material to
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substantiate that the respondent had remitted less amount than what was
collected, the petitioner would be left without any reason for dismissing the
respondent. In that juncture, the motive attributed by the respondent to
terminate him can also assume significance. In the absence of any material to
show that the respondent is not in the regular service of the petitioner even
though he was admitted as an employee of the petitioner and also in the absence
of any material to show that he was in the habit of remitting less than the
amount collected, it is right on the part of the Labour Court to arrive at a
conclusion that the termination of the respondent is illegal. Admittedly, the
termination could not be proceeded with the charges or enquiry that will also
add more strength to orders so passed by the Labour Judge.
9. Coming to the relief of awarding backwages, the arguments
advanced before the Court by the learned counsel for the petitioner is that
without any evidence as to the wages last drawn by the respondent, the above
relief has been granted. So far as this fact is concerned, the exercise of the
Court has become simple in view of the admission of the petitioner himself in
his counter stating that the respondent would draw a monthly wages of around
Rs.9,500/-. Though the amount of Rs.9,500/- is not a fixed wage, the above
statement of the petitioner would only confirm that the above wages of
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Rs.9,500/- would be the approximate wage payable to the respondent each
month. So again, it is wrong on the part of the petitioner to raise the contention
that the learned trial Judge passed the award without even having any material
as to last drawn wages of the respondent per month.
10. Since the materials available on record and the learned trial
Judge has properly appreciated the merits of the matter and arrived at a
conclusion, I do not find any discrepancy in the order passed by the learned
trial Judge. Hence, this Writ Petition is dismissed. No costs. Consequently, the
connected Miscellaneous Petition is closed.
03.09.2024
asi
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R.N. MANJULA, J.
asi
03.09.2024
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