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Y.SARATH BABU


ADVOCATE
[ Scorecard : 156]
Posted On 12 February 2010 at 18:47 Report Abuse

Hello to all members,

                 please post the full judgement of madras high court.  The case number is WMP No.14249/1998 and WMP No.7263/1999  decided on 09-06-2008.



Member (Account Deleted)


Advocate
[ Scorecard : 28]
Posted On 12 February 2010 at 19:23 Report Abuse


ramachary64@gmail.com


Practicing lawyer in High court of A.P.
[ Scorecard : 7358]
Posted On 14 February 2010 at 11:20 Report Abuse

Mr. Sarath, No need to post. Yourself can search the full judgement in Madras High court website by input your case details.


ramanathan


Legal Advisor
[ Scorecard : 83]
Posted On 17 February 2010 at 11:00 Report Abuse

In the High Court Web site http://courtnic.nic.in/chennai/content.asp given the relevent details you will get complete judgement you must know the judge name to view the complete judgment


Naresha


CEO
[ Scorecard : 52]
Posted On 22 February 2010 at 19:30 Report Abuse

Hi

Y.SARATH BABU...

 

Please post the Petitioner or Respondent name for the mentioned case. I will try to get if possible.

Thanks in advance.

 

Naresha

naresha_1999@yahoo.com


Naresha


CEO
[ Scorecard : 52]
Posted On 22 February 2010 at 19:48 Report Abuse

Hi Y.Sarath Babu.... Atlast I find the judgement copy of your requirement. that is as below.

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 9..6..2008

Coram:

The Hon'ble Mr. Justice K.CHANDRU

W.P. No. 9300 of 1998

and

W.M.P. No. 14249 of 1998 and W.M.P. No. 7263 of 1999

Tamil Nadu State Transport Corporation

Rep. by its Managing Director

Formerly known as Nesamony Transport Corporation

Madurai Division  III

Nagercoil .. Petitioner

vs.

1. N. John Henri Raj



2. Presiding Officer

Labour Court

Tirunelveli .. Respondents

Petition filed under Article 226 of the Constitution of India seeking for
issuance of writ of Certiorari calling for the records of the second respondent
relating to order dated 23.12.1996 passed in I.D. No. 146 of 1992 and quash the
same. For Petitioner : Mrs. Rita Chandrasekar

for Mr. Jayesh B. Dolia

For Respondent 1: Mr. K.S. Kumar

O R D E R

Heard the arguments of the learned counsel for the parties and perused the
records.



2. This writ petition is directed against the Award of the second respondent
Labour Court dated 23.12.1996 made in I.D. No. 146 of 1992.

3. The petitioner is the Management. Parties in this writ petition are referred
to as the Management and workman respectively.

4. The brief facts leading to the industrial dispute are as follows:

The first respondent workman was appointed as a security guard w.e.f.
13.11.1987 and was posted at the Thoduvatty Depot. It was stated that the
workman was refused employment from 27.6.1988 and he raised a dispute before the
Assistant Commissioner of Labour, Nagercoil. The said dispute was taken on file
by the second respondent Labour Court as I.D. No. 146 of 1992. The workman filed
13 documents and they were marked as Exs. W.1 to W.13. The Management filed the
enquiry proceedings and it was marked as Ex. M.1 series. Both sides let in oral
evidence. The Labour Court, on an analysis of the evidence (both oral and
documentary) passed the Award dated 23.12.1996 impugned in this writ petition.
By the impugned Award, the first respondent was directed to be reinstated with
continuity of service, full backwages and all other attendant benefits.

5. Pending the writ petition, this Court granted an interim stay on 09.7.1998.
Subsequently, the stay was modified and the Management was directed to deposit a
sum of Rs.1,50,000/- to the credit of I.D. No. 146 of 1992 and out of which,
Rs.25,000/- was directed to be paid to the workman and the balance amount was to
be invested in a Nationalised Bank. The Management was also directed to pay the
workman a sum of Rs.550/- every month from 01.9.1999 pending disposal of the
writ petition.

6. Mrs. Rita Chandrasekar, learned counsel appearing for the Management,
submitted that the approach of the Labour Court was improper and the workman was
engaged only on casual basis as a watchman and after 31.5.1988, his services
were not utilised as there was no work. His employment from 20.11.1987 to
31.12.1987 is a different spell of employment. In the second spell, he was
stopped from work on 31.5.1988. he also filed a Civil Suit before the District
Munsif Court, Kuzhithurai in O.S. 806 of 1988 and the same was dismissed. The
Labour Court was wrong in coming to the conclusion that during the period from
20.11.1987 to 31.5.1988 (even if the workman's employment is accepted up to
27.6.1988) that too, within a period of eight months, he could have worked for
258 days. In fact, the Labour Court itself had stated that the period from
20.11.1987 to 31.12.1987 was taken as double duty. Such a calculation is not
coming within the definition provided under Section 25B of the Industrial
Disputes Act, 1947.

7. It is fairly admitted that by the learned counsel for the workman that only
if the double duty is taken as two days of work, the workman would have
completed 240 days of actual employment. The learned counsel for the workman
relied upon an unreported judgment of the Division Bench of this Court in W.A.
No. 1569 of 2002 [C. Vijayakumaran v. The Tamil Nadu State Transport Corporation
(Madurai Division  III) Ltd.], disposed on 27.6.2007. In that case, the
Division Bench dealt with a case where the Court did not proceed on the basis of
any adverse inference regarding the number of days worked but the service was
calculated on the basis of the actual evidence adduced by the parties.

8. In the present case, the Labour Court came to the conclusion that the total
number of 258 days includes double duties performed by the workman for which
there is no statutory sanction available under the I.D. Act. For the second duty
performed on the same day, at the maximum the workman was eligible for Overtime
Allowance only and it cannot be construed as two working days so as to come
within the purview of Chapter V-A of the I.D. Act. Once it is held that the
workman had not completed 240 days within a period of 12 months, then it is
axiomatic that the labour Court cannot grant any relief to the workman.

9. In this context, it is necessary to refer to the recent decision of Supreme
Court in G.M., B.S.N.L. v. Mahesh Chand [2008 AIR SCW 1521]. The following
passages found in paragraphs 5 and 11 may be usefully reproduced:- Para 5: "In a
large number of cases the position of law relating to the onus to be discharged
has been delineated. In Range Forest Officer v. S.T. Hadimani, [(2002) 3 SCC
25], it was held as follows: "2. In the instant case, dispute was referred to
the Labour Court that the respondent had worked for 240 days and his service had
been terminated without paying him any retrenchment compensation. The appellant
herein did not accept this and contended that the respondent had not worked for
240 days. The Tribunal vide its award dated 10-8-1998 came to the conclusion
that the service had been terminated without giving retrenchment compensation.
In arriving at the conclusion that the respondent had worked for 240 days, the
Tribunal stated that the burden was on the management to show that there was
justification in termination of the service and that the affidavit of the
workman was sufficient to prove that he had worked for 240 days in a year.

3. For the view we are taking, it is not necessary to go into the question as
to whether the appellant is an industry or not, though reliance is placed on
the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar. 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. However, Mr Hegde appearing for the Department states
that the State is really interested in getting the law settled and the
respondent will be given an employment on compassionate grounds on the same
terms as he was allegedly engaged prior to his termination, within two months
from today." The said decision was followed in Essen Deinki v. Rajiv Kumar
(2002 (8) SCC 400."

Para 11: "Additionally, the specific stand of the appellants in the proceedings
before the Tribunal and the High Court was that there is no sanctioned post of
Safaiwala. There is no finding recorded by the Tribunal or the High Court that
this stand is incorrect. Further, the respondent is also not consistent as to
the period for which he worked. At one place he said he was working for five
hours each day and other places he had stated that he was working for 8 hours.
On the contrary, the appellant with reference to the nature of work done
categorically stated that on a part-time basis depending on the need and
requirement the respondent was engaged for 2 to 3 hours periodically.
Interestingly, the work that was being done by the respondent was also being
done by his wife and his mother. Sometimes, no order of appointment was
admittedly issued to the respondent. This fact is misconceived. In view of the
aforesaid factual scenario, the award made by the Tribunal as affirmed by
learned Single Judge and the Division Bench cannot be sustained and is set
aside."

10. In view of the above facts and circumstances, the writ petition will stand
allowed and the Award of the Labour Court in I.D. No. 146 of 1992 dated
23.12.1996 is set aside. No costs. However, the Management is precluded from
making any recoveries from the amount paid to the workman already by way of
interim orders of this Court. But the Management is at liberty to withdraw the
balance amount lying in deposit with the Labour Court. Connected Miscellaneous
Petitions are closed. 9..6..2008

Index : Yes

Internet : Yes

gri

K.CHANDRU, J.

gri

To

Presiding Officer

Labour Court

Tirunelveli

Pre-Delivery Order in

W.P. No. 9300 of 1998

Delivered on

9..6..2008
==================== If you need PDF format of the Judgement copy please mail me to naresha_1999@yahoo.com Naresha

Naresha


CEO
[ Scorecard : 52]
Posted On 22 February 2010 at 19:51 Report Abuse

If you feel the font size is very small..... Here is full content

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 9..6..2008

Coram:

The Hon'ble Mr. Justice K.CHANDRU

W.P. No. 9300 of 1998

and

W.M.P. No. 14249 of 1998 and W.M.P. No. 7263 of 1999

Tamil Nadu State Transport Corporation

Rep. by its Managing Director

Formerly known as Nesamony Transport Corporation

Madurai Division  III

Nagercoil .. Petitioner

vs.

1. N. John Henri Raj



2. Presiding Officer

Labour Court

Tirunelveli .. Respondents

Petition filed under Article 226 of the Constitution of India seeking for
issuance of writ of Certiorari calling for the records of the second respondent
relating to order dated 23.12.1996 passed in I.D. No. 146 of 1992 and quash the
same. For Petitioner : Mrs. Rita Chandrasekar

for Mr. Jayesh B. Dolia

For Respondent 1: Mr. K.S. Kumar

O R D E R

Heard the arguments of the learned counsel for the parties and perused the
records.



2. This writ petition is directed against the Award of the second respondent
Labour Court dated 23.12.1996 made in I.D. No. 146 of 1992.

3. The petitioner is the Management. Parties in this writ petition are referred
to as the Management and workman respectively.

4. The brief facts leading to the industrial dispute are as follows:

The first respondent workman was appointed as a security guard w.e.f.
13.11.1987 and was posted at the Thoduvatty Depot. It was stated that the
workman was refused employment from 27.6.1988 and he raised a dispute before the
Assistant Commissioner of Labour, Nagercoil. The said dispute was taken on file
by the second respondent Labour Court as I.D. No. 146 of 1992. The workman filed
13 documents and they were marked as Exs. W.1 to W.13. The Management filed the
enquiry proceedings and it was marked as Ex. M.1 series. Both sides let in oral
evidence. The Labour Court, on an analysis of the evidence (both oral and
documentary) passed the Award dated 23.12.1996 impugned in this writ petition.
By the impugned Award, the first respondent was directed to be reinstated with
continuity of service, full backwages and all other attendant benefits.

5. Pending the writ petition, this Court granted an interim stay on 09.7.1998.
Subsequently, the stay was modified and the Management was directed to deposit a
sum of Rs.1,50,000/- to the credit of I.D. No. 146 of 1992 and out of which,
Rs.25,000/- was directed to be paid to the workman and the balance amount was to
be invested in a Nationalised Bank. The Management was also directed to pay the
workman a sum of Rs.550/- every month from 01.9.1999 pending disposal of the
writ petition.

6. Mrs. Rita Chandrasekar, learned counsel appearing for the Management,
submitted that the approach of the Labour Court was improper and the workman was
engaged only on casual basis as a watchman and after 31.5.1988, his services
were not utilised as there was no work. His employment from 20.11.1987 to
31.12.1987 is a different spell of employment. In the second spell, he was
stopped from work on 31.5.1988. he also filed a Civil Suit before the District
Munsif Court, Kuzhithurai in O.S. 806 of 1988 and the same was dismissed. The
Labour Court was wrong in coming to the conclusion that during the period from
20.11.1987 to 31.5.1988 (even if the workman's employment is accepted up to
27.6.1988) that too, within a period of eight months, he could have worked for
258 days. In fact, the Labour Court itself had stated that the period from
20.11.1987 to 31.12.1987 was taken as double duty. Such a calculation is not
coming within the definition provided under Section 25B of the Industrial
Disputes Act, 1947.

7. It is fairly admitted that by the learned counsel for the workman that only
if the double duty is taken as two days of work, the workman would have
completed 240 days of actual employment. The learned counsel for the workman
relied upon an unreported judgment of the Division Bench of this Court in W.A.
No. 1569 of 2002 [C. Vijayakumaran v. The Tamil Nadu State Transport Corporation
(Madurai Division  III) Ltd.], disposed on 27.6.2007. In that case, the
Division Bench dealt with a case where the Court did not proceed on the basis of
any adverse inference regarding the number of days worked but the service was
calculated on the basis of the actual evidence adduced by the parties.

8. In the present case, the Labour Court came to the conclusion that the total
number of 258 days includes double duties performed by the workman for which
there is no statutory sanction available under the I.D. Act. For the second duty
performed on the same day, at the maximum the workman was eligible for Overtime
Allowance only and it cannot be construed as two working days so as to come
within the purview of Chapter V-A of the I.D. Act. Once it is held that the
workman had not completed 240 days within a period of 12 months, then it is
axiomatic that the labour Court cannot grant any relief to the workman.

9. In this context, it is necessary to refer to the recent decision of Supreme
Court in G.M., B.S.N.L. v. Mahesh Chand [2008 AIR SCW 1521]. The following
passages found in paragraphs 5 and 11 may be usefully reproduced:- Para 5: "In a
large number of cases the position of law relating to the onus to be discharged
has been delineated. In Range Forest Officer v. S.T. Hadimani, [(2002) 3 SCC
25], it was held as follows: "2. In the instant case, dispute was referred to
the Labour Court that the respondent had worked for 240 days and his service had
been terminated without paying him any retrenchment compensation. The appellant
herein did not accept this and contended that the respondent had not worked for
240 days. The Tribunal vide its award dated 10-8-1998 came to the conclusion
that the service had been terminated without giving retrenchment compensation.
In arriving at the conclusion that the respondent had worked for 240 days, the
Tribunal stated that the burden was on the management to show that there was
justification in termination of the service and that the affidavit of the
workman was sufficient to prove that he had worked for 240 days in a year.

3. For the view we are taking, it is not necessary to go into the question as
to whether the appellant is an industry or not, though reliance is placed on
the decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar. 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. However, Mr Hegde appearing for the Department states
that the State is really interested in getting the law settled and the
respondent will be given an employment on compassionate grounds on the same
terms as he was allegedly engaged prior to his termination, within two months
from today." The said decision was followed in Essen Deinki v. Rajiv Kumar
(2002 (8) SCC 400."

Para 11: "Additionally, the specific stand of the appellants in the proceedings
before the Tribunal and the High Court was that there is no sanctioned post of
Safaiwala. There is no finding recorded by the Tribunal or the High Court that
this stand is incorrect. Further, the respondent is also not consistent as to
the period for which he worked. At one place he said he was working for five
hours each day and other places he had stated that he was working for 8 hours.
On the contrary, the appellant with reference to the nature of work done
categorically stated that on a part-time basis depending on the need and
requirement the respondent was engaged for 2 to 3 hours periodically.
Interestingly, the work that was being done by the respondent was also being
done by his wife and his mother. Sometimes, no order of appointment was
admittedly issued to the respondent. This fact is misconceived. In view of the
aforesaid factual scenario, the award made by the Tribunal as affirmed by
learned Single Judge and the Division Bench cannot be sustained and is set
aside."

10. In view of the above facts and circumstances, the writ petition will stand
allowed and the Award of the Labour Court in I.D. No. 146 of 1992 dated
23.12.1996 is set aside. No costs. However, the Management is precluded from
making any recoveries from the amount paid to the workman already by way of
interim orders of this Court. But the Management is at liberty to withdraw the
balance amount lying in deposit with the Labour Court. Connected Miscellaneous
Petitions are closed. 9..6..2008

Index : Yes

Internet : Yes

gri

K.CHANDRU, J.

gri

To

Presiding Officer

Labour Court

Tirunelveli

Pre-Delivery Order in

W.P. No. 9300 of 1998

Delivered on


9..6..2008

_____________


If you need pdf copy just provide your e-mail ID to me


Naresha - naresha_1999@yahoolcom

S.Kishore


Lead Auditor
[ Scorecard : 22]
Posted On 13 June 2011 at 16:16 Report Abuse

Dear friends,

Can anybody get me the judgement in  WP 11092/2005 on the file of Madras High Court?

Regards

Kishore


New to Web


business
[ Scorecard : 22]
Posted On 13 March 2013 at 11:56 Report Abuse

Please help to get me the judgement in HCP 111/2013 on the file of Madras High Court ?

Regards

durgadevi


ANZAR M.A.


Lawyer
[ Scorecard : 93]
Posted On 31 January 2014 at 06:55 Report Abuse

hello riends 

 

I Need judgement copy and citation of following madras high court cases.

1.W.P. No.19279 of 2011


M/s Rajputana Distributors v/s Deputy Commissioner of Customs and Others by the Madras High Court Order dated 23.09.2011

 

2. WP 2029 OF 2012

M/S.Foodlever India Pvt. Ltd vs Senior Inspecting Officer on 16 March, 2012

3. W.A. NO 890 OF 2013  (WRIT APPEAL FROM WP 2029 OF 2012)

Senior Inspecting Officer ,Food Safety and Standards Authority of India     VS    M/S.Foodlever India Pvt. Ltd

 

I have doubt about writ appeal year 2013 0r 2012

 

if you have possible please arrange on or before SUNDAY  because case posted on Monday



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