JUDGMENT (Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, calling for the records of the 1st respondent in case No.E/3173/2010 and quash its order dated 15.10.2010.) 1. This writ petition is filed by the Tamil Nadu Tourism Development Corporation (hereinafter referred to as Petitioner/ Corporation) challenging the common award passed by the Labour Inspector vide order dated 15.10.2010. 2. Background to Writ Petition : 2.1. It may be relevant to set out the facts briefly. This is the second round of litigation before this Court with regard to proceedings under “The Tamil Nadu Industrial Establishments(Conferment Of Permanent Status To Workmen) Act, 1981” (for the sake of brevity 'Permanency Act'). The respondents (unless specified otherwise the respondents refer to the workmen herein) were appointed as casual labourers in the Petitioner-Corporation from the year 1989 onwards. An award was passed by the Labour Inspector vide order dated 27.10.2000, whereby the respondents were conferred Permanent Status/absorbed into service of the Petitioner Corporation. The above award was challenged by the Petitioner Corporation before this Court in W.P.No.5981 of 2001. The same was set aside with a direction to the Labour Inspector to re-do the proceedings after granting the Petitioner-Corporation adequate opportunity. The Petitioner-Corporation was aggrieved by certain observations in particular para 7 of the order of this Court in W.P.5981 of 2001 and thus a Writ Appeal was preferred by the Petitioner-Corporation in Writ Appeal No.1960 of 2010. 2.2. It may be relevant to state that during the pendency of the above writ proceeding the respondents herein allegedly terminated. Pursuant thereto, the respondents challenged their termination before the Industrial Labour Court on the premise that Section 25 F of the 'Industrial Disputes Act, 1947' ( for the sake of convenience 'I.D.Act, 1947') was not complied with. The Labour Court, however, vide common order dated 27.05.2009 in I.D. Nos.20 to 41 of 2007 rejected the above contention of the Respondents/Workmen herein on the premise that the Respondents had stopped reporting to work on their own volition and therefore it would not constitute "retrenchment" within the meaning of Section 2 (oo) of the I.D. Act, 1947 for Section 25 F of the said Act to get attracted. When the writ appeal in W.A.No.1960 of 2010 came up for hearing, in view of the subsequent developments viz., the disposal of proceeding under I.D. Act, 1947, the writ appeals were disposed by observing that it was open to both the parties to raise all contentions available to them 2.3. Pursuant to the above order of this Court in W.A.No.1960 of 2010 the Labour Inspector passed the impugned order dated 15.10.2010, wherein the Respondents were found entitled to be conferred permanent status on the basis of the following reasons: a. The Petitioner-Corporation would qualify as an ‘Establishment’ within the meaning of Section 2 (3)(e) of the Permanency Act and b. That the Respondents would qualify as "Workman" within the meaning of Section 2 (4) of the Permanency Act. c. That the Respondents were entitled for conferment of permanent status in terms of Section 3 of the Permanency Act. d. That the Respondents had submitted a statement containing month wise details of the number of days each workmen/ Respondents herein had worked over a period of 15 months between July 1996 to September 1997. Though it fell short of the prescribed period of 480 days of continuous service with the employer in 24 calendar months, it was found that the Respondents/workmen also worked during weekends on numerous occasions and thus concluded that the workmen/ Respondents herein satisfied the condition under Section 3 of the Permanency Act for conferment of permanent status viz., being in continuous service for more than 480 days in 24 calendar months. 3. It is this order of the Labour Inspector whereby permanent status was conferred on the Respondents which is the subject matter of challenge in this writ petition. 4. Contentions of the Petitioner:- (a) The existence of employer and employee relationship on the day on which permanency is conferred/granted is a condition precedent, which is not satisfied as would be evident from the fact that the Respondents herein had stopped reporting from work and in the absence of subsisting employer/employee relationship the conferment of permanent status is unsustainable. (b) Section 3 of the Permanency Act mandates that the workmen should have been in continuous service for more than 480 days in 24 calendar months. The finding of the Labour Court with regard to the satisfaction of the above condition is based on an inference/assumption/ hypothesis. (b) Section 3 of the Permanency Act mandates that the workmen should have been in continuous service for more than 480 days in 24 calendar months. The finding of the Labour Court with regard to the satisfaction of the above condition is based on an inference/assumption/ hypothesis. (c) The Labour Court erred in placing the burden on the Petitioner/ Corporation to prove that the conditions under Section 3 of the Permanency Act was satisfied. (d) That the Labour Court erred in drawing an adverse inference against the Petitioner for alleged non- production of documents completely overlooking the fact that the documents were destroyed in a fire accident in 1996 and during Tsunami in 2004. (e) Permanency Act is inapplicable to Statutory Corporations in view of the law laid down in Uma Devi’s Case [ (2006) 4 SCC 1 ]. It was submitted by the Petitioner that the Hon'ble Supreme Court had frowned upon the practice of engaging workers on a casual/temporary basis and thereafter regularizing/ absorbing them without following the due procedure, thereby resulting in eligible candidates being denied opportunity in view of the back door method of employment, resulting in frustration of constitutional mandate on reservation. It is the submission of the petitioners that the Supreme Court in Uma Devi's Case had in no uncertain terms clarified that right to employment, if a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut one's eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. It was thus submitted that "Permanency Act" militates and is in conflict with the principles laid down by the Constitutional Bench judgment of Supreme Court in Uma Devi's case. 5. Contentions of the Respondents:- To the contrary, it was submitted by the learned counsel for the Respondents that they had fulfilled the condition of being in continuous service for more than 480 days in 24 calendar months. That the Respondents were working at the time of submission of their application before the Labour Inspector originally in the year 1997 and were in service when the award came to be passed by the Labour Inspector on 27.10.2000. The continuation of the proceeding pursuant to orders of this Court in W.P.5981 of 2001 cannot be understood as giving rise to a fresh cause of action but is a mere continuation of the proceeding originally initiated in the year 1997. Thus, the submission of the Petitioner that the Respondents to claim the benefit in terms of Section 3 ought to be in service when the order is passed is legally unsustainable and factually incorrect. The Respondents had produced the Attendance Register and vouchers in support of their contention that they had complied with the requirement under Section 3 of the Permanency Act, of having been in continuous service for more than 480 days in 24 calendar months and that no contra evidence has been filed by the Petitioner. The submission of the Petitioners that the documents were destroyed in fire accident in 1996 and Tsunami in the year 2004 does not justify non-production of documents since the Petitioners had reconstructed the documents in relation to the regular employees and the failure to reconstruct the documents in relation to the respondents/workmen is clearly indicative of the mala fide intention of the Petitioners. Reliance was sought to be placed on a number of judgements to show that the Permanency Act is a labour welfare legislation and thus ought to be construed liberally extending the benefit to the workmen. Reliance was sought to be placed on a number of judgements to show that the Permanency Act is a labour welfare legislation and thus ought to be construed liberally extending the benefit to the workmen. It was finally submitted that the reliance upon the decision in Uma Devi's case may have no applicability while dealing with a claim under the Permanency Act in view of the non-obstante clause contained in Section 3 of the Permanency Act. 6. Heard both sides, perused the materials on record and the written submission filed by both the parties. 7. Infirmities in the Order of the Labour Court:- Before proceeding to examine the order of the Labour Inspector with regard to the conferment of Permanent Status in terms of Section 3 of the Permanency Act, it is relevant to extract the said provision, which reads as under:- "3. Conferment of permanent status to workmen.- (1) Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty-four calendar months in an industrial establishment shall be made permanent. (2) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lock-out, or a cessation of work which is not due to any fault on the part of the workman. Explanation[I]. -[For the purposes of computing the continuous service referred to in sub-sections (1) and (2), a workman shall be deemed to be in continuous service during the days on which]- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act of 1946) or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the course of this employment; and (iv) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks. [Explanation II.- For the purpose of this section, Taw' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act.].” A reading of the above provision would show that a workman who is in continuous service for a period of 480 days within a period of 24 calendar months in an industrial establishment shall be made permanent. The expression “continuous service” is defined in the Explanation to Section 3 of the said Act. Importantly, it is not the number of years in service, but compliance with the required number of days viz., 480 days within 24 calendar months which is relevant. The following illustrations would make the position clear: Illustration 1: A workman may be in employment for more than 10 years seasonally but if he has not been in continuous service for more than 480 days in 24 calendar months, the mere fact that he has been engaged for several years would have no bearing in deciding the right of the workman under Section 3 of the Permanency Act. Illustration 2: A workman who has been in service for 2 1/2 years and has been in continuous service for more than 480 days in 24 calender months, such workman may well be entitled to claim the benefit under Section 3 of the Permanency Act. 8. The conferment of a permanent status being in the nature of a right, conditions attached thereto ought to be strictly complied. The most important condition being that the workmen claiming the benefit must be in continuous service for a period of 480 days in 24 calendar months, the same ought to be strictly adhered to and the burden is on the claimant to show that the above condition is satisfied. 9. The most important condition being that the workmen claiming the benefit must be in continuous service for a period of 480 days in 24 calendar months, the same ought to be strictly adhered to and the burden is on the claimant to show that the above condition is satisfied. 9. Keeping the above aspect in mind, examination of the order of the Labour Court would reveal the following: a. The Labour Inspector had found that the Respondents herein had let in evidence for the period July 1996 to September 1997 i.e., for a period of 15 months and the number of days the Respondents were in service/employed during the above period were also set out in the Annexure to the impugned order, which is extracted hereunder: S.No Respondent's Name Date of Birth Post Date of Joining Continuous Absence from Work Done in 15 months Note 1 R.Raja 30.07.1971 Bar Assistant March 1990 01.11.2001 442 2 I.Rathinasamy 31.07.1971 Front Office Assistant March 1997 01.11.2001 90/3 3 M.Ramesh 12.05.1976 Cleaner January 1993 01.11.2001 418 4 S.Maheswari 22.07.1976 Typist June 1996 October 2000 271/11 5 D.Kumaravel 30.06.1971 Room Boy December 1995 01.11.1997 Nil Not in employment even prior to order of Labour Inspector Kancheepuram 6 K.Moorthy 09.02.1970 House Keeping Cleaner January 1994 01.11.2001 425 7 N.Rajendran 15.10.1965 Cook November 1990 01.11.2001 432 8 K.Easudass 12.05.1970 Cook February 1995 01.11.2001 419 9 M.Dillibabu 06.05.1963 Carpenter July 1990 Freelance Carpenter Non-Existing Employer 10 L.Arulanand 12.10.1972 House Keeping February 1993 01.11.2001 Nil 11 M.Kumar 05.04.1977 Store Assistant January 1996 October 2000 435 12 G.Sengeni 16.04.1975 Cleaner February 1993 01.11.2001 405 13 A.Chandrasekaran 12.05.1971 Electrician January 1994 01.11.2001 441 14 S.Nandakumar 20.01.1971 Electrician July 1994 01.11.2001 440 15 M.Albert 21.05.1970 House Keeping Cleaner January 1995 01.11.2001 409 16 N.Sekar 17.06.1968 Cleaner March 1990 June 2001 425 17 A.Balamuthu 15.04.1964 Bell Boy December 1995 01.11.2001 383 18 P.Bakiyam 07.04.1967 Gardener December 1993 01.11.2001 396 19 V.Boopathi 07.05.1967 Gardener July 1992 October 2000 252/9 20 M.Ravi 07.04.1972 Bell Boy January 1996 January 2001 400 The above Table would show that none of the Respondents/Workmen had completed 480 days of continuous service in 24 calendar months with the Petitioner/Corporation to claim the benefit of Section 3 of the Permanency Act. However, the Labour Inspector/ 1st Respondent herein has after finding that evidence had allegedly been let in for period of 15 months, proceeded to record that the Respondents were engaged for 30 days in a month without even holidays during weekend and had thereby inferred that the condition of 480 days of continuous service within 24 calendar months stood satisfied. Whether the Respondents had complied with the condition of being in continuous service for more than 480 days in 24 calendar months is a question of fact and there must be “actual proof” of complying with the said condition, it appears to me that there is no room for assumption/hypothesis while examining the compliance of the above condition. The order of the Labour Court after extracting the Table containing the days of work by the Respondent over 15 months which reveals that the workmen/ Respondents have not fulfilled the requirement of 480 days of continuous service in 24 calendar months, has by a leap of imagination proceeded to extend the benefit of Permanency under Section 3 of the Act, on the basis of assumptions and hypothesis, which vitiates the order and renders the same bad in law. b. Importantly, even assuming the evidence let in by the Respondents to be reflecting the correct state of affairs nevertheless it still falls short of meeting out the requirement contemplated under Section 3 of the Act since none of the employees are shown to have completed 480 days in a period of 24 calendar months. c. Burden Placed on the Wrong Party: It is found by the Labour Court that the Petitioner herein had not let in any evidence in the form of Attendance Register, Wage Register, Cash Register, while not doubting the Petitioner's submission that the documents were destroyed in a fire accident in 1996 and Tsunami in 2004. In any view, the impugned order insofar as it places the burden on the Petitioner Corporation to show that the respondents were not in continuous service for more than 480 days in 24 calendar months is contrary to the settled position that burden of complying with condition under Section 3 of the Permanency Act is on the workmen. In any view, the impugned order insofar as it places the burden on the Petitioner Corporation to show that the respondents were not in continuous service for more than 480 days in 24 calendar months is contrary to the settled position that burden of complying with condition under Section 3 of the Permanency Act is on the workmen. The above condition of being in continuous service for a period of 480 days in 24 calendar months is a fact which needs to be proved by the workmen by letting "actual proof" and cannot be shown as having been complied on the basis of assumptions, hypothesis, surmises and conjectures. The burden of showing compliance of the above condition for claiming the benefit under Section 3 of the Act is on the respondents/ workmen. In this regard, it may be relevant to refer to the following judgments, though the same is under the Industrial Disputes, Act, 1947 however the principle would apply with equal force to Permanency Act. i) Range Forest Officer v. S.T. Hadimani reported in (2002) 3 SCC 25 : "3. ........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." (emphasis supplied) ii) Municipal Corpn., Faridabad v. Siri Niwas reported in (2004) 8 SCC 195 : "13. The provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. On this ground alone, the award is liable to be set aside." (emphasis supplied) ii) Municipal Corpn., Faridabad v. Siri Niwas reported in (2004) 8 SCC 195 : "13. The provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment.... 14. .......The retrenchment of the respondent took place on 17-5-1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5-8-1994 to 16-5-1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. " (emphasis supplied) iii) Surendranagar District Panchayat v. Jethabhai Pitamberbhai reported in (2005) 8 SCC 450 : "8. On the face of the aforesaid authorities, the Labour Court and the High Court committed an error in placing the burden on the employer to prove that the workman had not worked for 240 days with the employer. The burden of proof having been on the workman, he has to adduce evidence in support of his contention that he has complied with the requirement of Section 25-B of the Industrial Disputes Act. In the present case, apart from examining himself in support of his contention the workman did not produce any material to prove the fact that he worked for 240 days...." (emphasis supplied) iv) R.M. Yellatti v. Asstt. Executive Engineer reported in (2006) 1 SCC 106 : "12. ...... the workmen raised a contention of rendering continuous service between April 1980 to December 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The Tribunal based its decision on the management not producing the attendance register. Executive Engineer reported in (2006) 1 SCC 106 : "12. ...... the workmen raised a contention of rendering continuous service between April 1980 to December 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The Tribunal based its decision on the management not producing the attendance register. In view of the affidavits filed by the workmen, the Tribunal held that the burden on the workmen to prove 240 days' service stood discharged. In that matter, a three-Judge Bench of this Court held that pleadings did not constitute a substitute for proof and that the affidavits contained self-serving statements; that no workman took an oath to state that he had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this Court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non-response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had worked for 240 days....... 17. ....... However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary.......... " (emphasis supplied) v) Bhavnagar Municipal Corpn. v. Jadeja GovubhaChhanubha reported in (2014) 16 SCC 130 : "7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court inRange Forest Officerv.S.T. Hadimani[Range Forest Officerv.S.T. Hadimani, (2002) 3 SCC 25 : 2002 SCC (L&S) 367] ,Municipal Corpn., Faridabadv.Siri Niwas[Municipal Corpn., Faridabadv.Siri Niwas, (2004) 8 SCC 195 : 2004 SCC (L&S) 1062] ,M.P. Electricity Boardv.Hariram[M.P. Electricity Boardv.Hariram, (2004) 8 SCC 246 : 2004 SCC (L&S) 1092] ,Rajasthan State Ganganagar S. Mills Ltd.v.State of Rajasthan[Rajasthan State Ganganagar S. Mills Ltd.v.State of Rajasthan, (2004) 8 SCC 161 : 2004 SCC (L&S) 1055] ,Surendranagar District Panchayatv.JethabhaiPitamberbhai[Surendranagar District Panchayatv.JethabhaiPitamberbhai, (2005) 8 SCC 450 : 2005 SCC (L&S) 1167] and R.M. Yellattiv.Executive Engineer[R.M. Yellattiv.Executive Engineer, (2006) 1 SCC 106 : 2006 SCC (L&S) 1] unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him......" (emphasis supplied) d. Further, apart from the fact that the Labour Court erred in finding that the condition set-out in Section 3 of the Permanency Act is satisfied, on the basis of assumptions/ hypothesis and not on the basis of "actual proof" which vitiates the impugned order, the Labour Court erred in drawing an adverse inference against the Respondents allegedly for not producing the documents overlooking the fact that the Petitioner - Corporation had stated and which remains undisputed that the documents were lost in the fire accident in the year 1996 and thereafter during Tsunami in the year 2004. As a matter of fact, the Respondents/ workmen had let in evidence for 15 months to show that they were engaged in work. However, the evidence that is let in does not cover 24 calendar months nor does it show that the respondents/workmen were in continuous service for more than 480 days within 24 calendar months. The learned Labour Court insofar as it draws adverse inference against the Petitioner is bad in law. In this regard, it may be relevant to refer to the following judgment: Bhavnagar Municipal Corporation Vs. The learned Labour Court insofar as it draws adverse inference against the Petitioner is bad in law. In this regard, it may be relevant to refer to the following judgment: Bhavnagar Municipal Corporation Vs. Jadeja Govubha Chhanubha reported in (2014) 16 SCC 130 following R.M.Yellatti v. Assistant Executive Engineer reported in (2006) 1 SCC 106 , relevant portions of the order is extracted below:- "7.......So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court inMunicipal Corpn., Faridabadv.Siri Niwas[Municipal Corpn., Faridabadv.Siri Niwas, (2004) 8 SCC 195 : 2004 SCC (L&S) 1062] and M.P. Electricity Board v.Hariram[M.P. Electricity Boardv.Hariram, (2004) 8 SCC 246 : 2004 SCC (L&S) 1092] , reiterated inRBIv.S. Mani[RBIv.S. Mani, (2005) 5 SCC 100 : 2005 SCC (L&S) 609] . This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it." (emphasis supplied) 10. For all the above reasons we find that the order of the Labour Court suffers from infirmities which are fatal to the validity of the same and thus liable to set-aside. This writ petition is allowed. No costs.