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THE MANAGEMENT OF AGRICULTURAL versus THE CONTROLLING AUTHORITY UNDER THE

High Court of Madras

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The Management of Agricultural v. The Controlling Authority under the - W.P. No.1061 of 1995 and W.P.No. 1062 OF 1995 [2002] RD-TN 385 (21 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 21/06/2002

Coram

The Honourable Mr. Justice V.S. SIRPURKAR

W.P. No.1061 of 1995 and W.P.No. 1062 OF 1995

The Management of Agricultural

Research Station, Tamil Nadu

Agricultural University,

Kovilpatti :: Petitioner -Vs-

1. The Controlling Authority under the

Payment of Gratuity Act (Asst.

Commissioner of Labour, Tirunelveli)

2. The Appellate Authority under the

Payment of Gratuity Act (Deputy Respondents 1 & Commissioner of Labour, Tirunelveli):: in both W.Ps. 3. Mangammal :: R3 in WP 1061/95 Kaliammal :: R3 in WP 1062/95 Petitions under Art.226 of the Constitution

for a Writ of Certiorari as stated in the petitions For Petitioner :: Mr. H. Balaji

For Respondents :: Ms. Malarvizhi, GA (R1&R2)

Mr. S. Baskar for R3

:ORDER



These two writ petitions shall be disposed of by this common judgment as the question involved is common.

2. The petitioner in both these writ petitions is the Management of Agricultural Research Station, Tamil Nadu Agricultural University, Kovilpatti. The third respondent Mangammal (in W.P. No.1061 of 1995) and Kaliammal (in W.P. No.1062 of 1995) were the labourers working in the petitioner research institute. They were superannuated on 3-6-1992. On that day, their service period was calculated as five years and three months and on that basis they were paid the gratuity of Rs.5,205/-. They were not satisfied with this gr atuity amount and, therefore, claimed gratuity at the higher rate as, according to them, they were serving the institute right from 1960 in the capacity as casual labourers and, therefore, that service period also was liable to be taken into consideration and not merely 5 years and 3 months.

3. This claim of the respondents was resisted by the petitioner on the ground that there was nothing to prove that these labourers were firstly working since 1960 and further every year that they worked for a period of 240 days or more.

4. The matter was decided by the controlling authority before whom evidence was led. Both the respondents examined themselves as witnesses and they were cross-examined also. It is significant that during the proceedings, a notice was given to the petitioner to produce the records as it was obvious that the records were kept of the service as well as the payment of salaries, etc. However, no record came to be produced on the ground that all the records were destroyed after the audit. The controlling authority found in favour of the respondents and ordered the payment of Rs.13,625.76 extra over and above the payment which was paid by way of gratuity. In that, the authority treated that the service period which was liable to be taken into consideration was 32 years in respect of both the respondents. The authority also rejected the case put up by the petitioner that these employees were regularised only on 6-3-1987 and as such, their service for a period of 5 years and 3 months alone was liable to be taken into consideration for the purposes of payment of gratuity. The order passed by the controlling authority was appealed against by the petitioner. However, it was maintained by the appellate authority. These, two concurrent orders are now being challenged before me by way of the present writ petitions.

5. At the out set, the learned counsel appearing on behalf of the petitioner very vehemently argued that there was absolutely no proof available to suggest that these respondents were working for the last thirty-two years i.e. from the year 1960 onwards or that they had worked for more than 240 days in each year. The learned counsel points out that the burden to prove that an employee worked for more than 240 days in a year or that he worked for certain number of years, in this case for more than thirty years, was certainly on the employee and in this case, the respondent-employees had thoroughly failed to discharge this burden. Learned counsel very heavily relied on the judgment of the Supreme Court in The Range Forest Officer v. S.T. Hadimani (JT 2002 (2) SC 2 38) and pointed out that in this reported decision also, the situation was more or the less identical on facts inasmuch as there also the employee had not produced any proof and had merely filed an affidavit in support of his claim that he had worked for more than 240 days in a year. Learned counsel points out that the burden has been held to be that of the employee and that a mere statement in favour of himself made by the employee would be of no consequence.

6. Considering the rival submissions, it must be said that though prima facie the Supreme Courtís decision in Hadimaniís case, cited supra, appears to be helping the petitionerís case, on a deeper scrutiny, it must be said that the facts in the said Supreme Court decision are slightly different and that would make a lot of difference.

7. In the first place, in Hadimaniís case, cited supra, the Tribunal had stated that the burden to prove that the employee had not worked for 240 days in a year was on the Management and since that onus was not discharged by the Management, the claim was settled in favour of the employee. Such is not the case here. I have seen both the orders carefully where the burden has been placed on the employees themselves. Both the authorities, i.e. the Controlling Authority as well as the Appellate Authority, have not committed any error by placing the burden on the Management. True it is, in this case also affidavits were filed on behalf of the employees in support of their claim. However, it cannot be forgotten that in this case, those employees offered themselves for the cross-examination and they were thoroughly cross-examined. Such was not the situation in Hadimaniís case.

8. Secondly, unlike the Hadimaniís case, here a specific effort has been made on behalf of the respondent-employees by giving a notice to the Management to produce the relevant documents. It has to be borne in mind that the respondent-employees here were illiterate workmen. Their major part of life was spent in working as casual workers in the petitioner institute. It was only in the evening of their career, for the last five/six years, that they came to be regularised. It is very difficult to expect that such employees would be able to produce any documentary proof as is being required by the learned counsel for the petitioner. The respondent-employees cannot be blamed because they had issued a notice to the petitioner institute to produce the relevant records and, in fact, it was an admitted position that the petitioner institute had maintained the records regarding the attendance as well as the distribution of wages, etc. to the respondentemployees. If for some fanciful reasons, the petitioner institute chooses to destroy all the records then, there would be no question of finding any fault with the poor labourers. Beyond this, they could not have done anything. The situation would be more grim particularly because these labourers Ė who are obviously illiterate and living in the hand to mouth situation - were admittedly only casual workers for a very long time. Under such circumstances, to expect them to come out with documentary proof for their having worked more than 240 days in a year or that they worked for more than thirty-two years would be too much to expect.

9. Thirdly, the respondent-employees cannot be blamed as they have given a notice to the Management to produce the relevant records which records have been claimed to have been destroyed. There appears to be no apparent reason why those service records should have been destroyed. The Management have not shown any rule that the records after certain period have compulsorily to be destroyed. It is no doubt true that the burden to prove that the employees worked for 240 days in a year certainly lies on the employees. However, since the Management has not given any satisfactory reason for destroying the records, the adverse inference will have to be drawn against the Management.

10. In view of the above reasons, the facts in Hadimaniís case, cited supra, are different and, therefore, the petitioner cannot draw support from the ruling of that decision. In my opinion, both the authorities have correctly held that the burden stood discharged.

11. When I see the order of the controlling authority, it is to be seen that the controlling authority has recorded a specific finding that the petitioner being an agricultural research institute, there were three wells and motor pump-sets, etc. and as such, it could be reasonably expected that the work was done continuously all through the year. In fact, it was up to the Management to prove that there was no continuous work and the work was seasonal and used to be done only for three/four months in a year. Even that has not been done by the Management by leading any evidence. On the otherhand, both the employees, in their cross-examination, have asserted that there used to be sufficient and continuous work through out the year.

12. Learned counsel tried to point out that there was a communication by the Union that the work should be provided for at least more than three days a month. In the absence of any positive evidence in that behalf, it will be hazardous to act on such communication. In my opinion, the word on oath, which was tested by the crossexamination, has been rightly held to be sufficient to discharge the burden.

13. Be that as it may, since these are the questions of fact, it will not be proper for me to go into the facts afresh in a writ petition under Art.226. The only question which would be required to be considered is as to whether the orders of the authorities below and the findings recorded by them are perverse in any manner. I do not find any such perversity in the orders passed by the authorities below. The concurrent finding of facts is, therefore, confirmed. The writ petitions are without merits and are, therefore, dismissed but without any orders as to the costs. Index:Yes

Website:Yes

Jai

21-06-2002

To:

1. Assistant Commissioner of Labour

Tirunelveli

2. Deputy Commissioner of Labour

Tirunelveli.

V.S. SIRPURKAR, J.

W.P. Nos.1061 & 1062 OF 1995




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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