REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4875-4884 OF 2019
(Arising out of SLP(C) Nos.21962-21971 OF 2018)
THE SUPERINTENDING ENGINEER ...Appellants
TWAD BOARD & ANOTHER
VERSUS
M. NATESAN ETC. ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
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
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
1
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 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 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 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 appellantBoard filed writ petition in W.P.No.23720 of 2002 challenging the
award of the Labour Court.
2
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. However, the learned Single Judge
affirmed the award passed by the 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 appellant-Board has submitted that in
3
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).
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 respondentsworkmen.
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
4
showing that they have worked continuously for 240 days. Only
when the initial burden is discharged by the respondentsworkmen, 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, 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 and also the quantum of money payable in lieu of
reinstatement. Learned counsel appearing for the appellantBoard 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 limit or
death which reads as under:-
5
50% BACK WAGES CALCULATED FROM THE DATE OF TERMINATION TILL THE DATE OF
CROSSING OF AGE LIMIT OR DEATH
Sl.
No
.
Name Date of
termination
Date of
crossing
age limit
(or) death
50% back
wages from
the date of
termination
upto
Labour
Court order
dt.12.4.200
0 at Rs.18/-
per day
wage paid
at the time
of
termination
50% of
back
wages
from
13.04.200
0 till the
date of
crossing
the age
limit or
death
Total
amount
payable
50% back
wages as
per the
schedule
rates from
the date of
termination
till crossing
the age
limit (or)
death
Amount
already
paid
including
Rs.2,00,000
/- as
ordered by
the Hon’ble
Court
1 2 3 4 5
[3+4]
6 7
1. R. Piramuthu 31.05.1990 06.02.2011 31707 32310 64017 2,35,394 2,64,525
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. Muthusamy
Nadar
23.07.1990 18.09.2004
(Death)
31509 14355 45864 1,30,172 0
6. D. Sundararaj 13.08.1990 22.05.2013 31968 39654 71622 3,09,373 2,7,9105
7. M. Nadesan 06.08.1990 08.04.2017 31392 46431 77823 4,04,780 4,67,130
8. N. Yesudhas 29.06.1990 09.05.2013 31716 42363 74079 3,19,738 2,70,740
9. S. Johnson 31.07.1990 25.02.2019 31437 49257 80694 3,70,113 6,75,679
10. V. Sathiyadas 06.08.1991 03.06.2013 31392 42570 73962 2,85,300 2,71,280
Total: 3,15,468/- 3,64,347/- 6,79,815/- 30,68,034/- 30,26,629/-
The above amount so far paid to the respondents under Section
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.
6
11. The appeals are disposed of with the following directions
and observations:-
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 (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.
12. The above order is passed in the peculiar facts and
circumstances of the case and may not be quoted as a
precedent.
..
………………………….J.
[R. BANUMATHI]
..………………………….J.
[R. SUBHASH REDDY]
New Delhi;
May 10, 2019.
7
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4875-4884 OF 2019
(Arising out of SLP(C) Nos.21962-21971 OF 2018)
THE SUPERINTENDING ENGINEER ...Appellants
TWAD BOARD & ANOTHER
VERSUS
M. NATESAN ETC. ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
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
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
1
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 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 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 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 appellantBoard filed writ petition in W.P.No.23720 of 2002 challenging the
award of the Labour Court.
2
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. However, the learned Single Judge
affirmed the award passed by the 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 appellant-Board has submitted that in
3
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).
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 respondentsworkmen.
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
4
showing that they have worked continuously for 240 days. Only
when the initial burden is discharged by the respondentsworkmen, 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, 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 and also the quantum of money payable in lieu of
reinstatement. Learned counsel appearing for the appellantBoard 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 limit or
death which reads as under:-
5
50% BACK WAGES CALCULATED FROM THE DATE OF TERMINATION TILL THE DATE OF
CROSSING OF AGE LIMIT OR DEATH
Sl.
No
.
Name Date of
termination
Date of
crossing
age limit
(or) death
50% back
wages from
the date of
termination
upto
Labour
Court order
dt.12.4.200
0 at Rs.18/-
per day
wage paid
at the time
of
termination
50% of
back
wages
from
13.04.200
0 till the
date of
crossing
the age
limit or
death
Total
amount
payable
50% back
wages as
per the
schedule
rates from
the date of
termination
till crossing
the age
limit (or)
death
Amount
already
paid
including
Rs.2,00,000
/- as
ordered by
the Hon’ble
Court
1 2 3 4 5
[3+4]
6 7
1. R. Piramuthu 31.05.1990 06.02.2011 31707 32310 64017 2,35,394 2,64,525
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. Muthusamy
Nadar
23.07.1990 18.09.2004
(Death)
31509 14355 45864 1,30,172 0
6. D. Sundararaj 13.08.1990 22.05.2013 31968 39654 71622 3,09,373 2,7,9105
7. M. Nadesan 06.08.1990 08.04.2017 31392 46431 77823 4,04,780 4,67,130
8. N. Yesudhas 29.06.1990 09.05.2013 31716 42363 74079 3,19,738 2,70,740
9. S. Johnson 31.07.1990 25.02.2019 31437 49257 80694 3,70,113 6,75,679
10. V. Sathiyadas 06.08.1991 03.06.2013 31392 42570 73962 2,85,300 2,71,280
Total: 3,15,468/- 3,64,347/- 6,79,815/- 30,68,034/- 30,26,629/-
The above amount so far paid to the respondents under Section
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.
6
11. The appeals are disposed of with the following directions
and observations:-
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 (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.
12. The above order is passed in the peculiar facts and
circumstances of the case and may not be quoted as a
precedent.
..
………………………….J.
[R. BANUMATHI]
..………………………….J.
[R. SUBHASH REDDY]
New Delhi;
May 10, 2019.
7
