The burden of proof is on the workman to establish that they had worked for 240 days in a given year, and the court can compel the production of documents and draw inferences in the absence of production of documents.

ORDER :

Aggrieved by the Award dated 24.06.2013 passed by the 1st Respondent/Labour Court in I.D.Nos.65 and 70 of 2006, respectively, Petitioners are before this Court with the above Writ Petitions, seeking to quash the same and for a consequential direction to the 2nd Respondent/Transport Corporation to reinstate them in service with backwages, continuity of service and all other attendant benefits.

2. As the issue involved in both Writ Petitions is one and the same, the cases are taken up for disposal by a common order.

3. It is seen that the Petitioner viz. M.Thangavel in W.P.No.34024 of 2013 joined the services of the 2nd Respondent/Transport Corporation as a Driver on 04.12.2004 and the Petitioner viz. P.Muthukrishnan in W.P.No.34025 of 2013 joined the services of the 2nd Respondent/Transport Corporation as a Driver on 07.10.2004. As both the Petitioners were terminated from service on 01.09.2005 without any enquiry or notice, when they have actually worked for more than 240 days in a year prior to the date of their termination, they raised an Industrial Dispute before the Labour Court, Erode.

4. As the conciliation proceedings ended in failure, both the Petitioners preferred Claim Statements before the 1st Respondent/Labour Court, challenging their termination on several grounds, including noncompliance with Section 25-F of the Industrial Disputes Act, 1947 (in short 'the Act') before effecting termination of their service. However, the 2nd Respondent/Transport Corporation resisted the claim of the Petitioners that they were appointed only on daily wage basis and that their termination would attract Section 2(oo)(bb) of the Act.

5. Before the Labour Court, Petitioners were examined as W.W.1 in the respective Industrial Disputes and Conciliation Failure Report was marked as Ex.A1. Whereas, on the side of the 2nd Respondent/Transport Corporation, the Assistant Manager of the Corporation viz. N.Muthukumarasamy was examined as M.W.1 in both cases. However, no document was marked on their behalf.

6. According to the Petitioners, M.W.1 had admitted in his evidence that the 2nd Respondent/Transport Corporation has been in possession of all relevant records like Attendance Registers, documents showing payment of wages, etc. It is the case of the Petitioners that the Labour Court, without considering the evidence adduced on behalf of the parties, erroneously dismissed the Industrial Disputes in I.D.Nos.65 and 70 of 2006, respectively, vide Award dated 24.06.2013. Hence, aggrieved by the same, Petitioners are before this Court.

7. Learned counsel for the Petitioners contended that the Labour Court was not right in holding that the Petitioners had failed to prove that they had worked for 240 days in a year prior to their termination. According to the learned counsel, the 2nd Respondent/Transport Corporation is duty bound to maintain records pertaining to daily wagers and produce them before the Court of law, when dispute touching their non-employment is raised. In support of his case, learned counsel has relied on a decision of the Apex Court in the case of Director, Fisheries Terminal Division vs. Bhikubhai Meghajibhai Chavda reported in (2009) 1 SCC 47.

8. In reply, learned counsel appearing for the 2nd Respondent/Transport Corporation submitted that the Petitioners herein are only Drivers, who had worked on contract basis and they were neither sponsored for permanent vacancies by the Employment Exchange nor appointed after issuing advertisement calling for Applications. He further submitted that the Petitioners herein have not worked for 240 days in a year and when the Labour Court questioned about the same, Petitioners have stated that they have worked 50 duties in 25 days. Finding that there is no evidence in proof of the Petitioners' claim, the Labour Court dismissed their Claims.

9. Heard the learned counsel on either side and perused the material documents available on record.

10. The issue on hand is as to whether the claim of the P