Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Gainful Employement

K.S.Srinivas ,
  13 September 2011       Share Bookmark

Court :
Supreme Court of India
Brief :
Burden of proof having to the principles analogous to section 106 of evidence Act that he has not gainfully employed was on worker, not on the management.
Citation :
Manager, Reserve Bank of India, Banglore, Vs. S.Mani & others (2005)5 SCC 100.

CASE NO.:

Appeal (civil)  6306-6316 of 2003

 

PETITIONER:

Manager, R.B.I., Bangalore

 

RESPONDENT:

S. Mani & Ors.

 

DATE OF JUDGMENT: 14/03/2005

 

BENCH:

N. Santosh Hegde, B.P. Singh & S.B. Sinha

 

JUDGMENT:

J U D G M E N T

 

S.B. SINHA, J :

 

           

            The Respondents herein were Ticca Mazdoors working under the

Appellant herein.  Ticca Mazdoors are intermittently appointed by the

Reserve Bank of India whenever absence of regular Class IV employees

takes place.  They are not engaged everyday or continuously.  Their

engagement depends upon the need of the Appellant. They are never

regarded as regular Mazdoors.  Two waiting lists are maintained by the

Appellant.  The first waiting list contains the names of such of them who

may be appointed as regular Mazdoors whereas the second list is maintained

for those who are to be engaged as Ticca Mazdoors.  The name of the

respondents figured in the second list.  They were appointed in the said

category as Ticca Mazdoor between the period 14th March, 1980 and 8th

August, 1982 for the purpose of their appointment as regular Mazdoors.  The

Respondents herein, except Respondent No. 6, were interviewed on different

dates between January, 1982 and May, 1982.  Allegedly, during interview,

they produced transfer certificates but their answers to the questions posed in

this behalf were not in conformity therewith, whereupon a verification was

made and it was found that the said certificates were forged and fabricated. 

Three first information reports were lodged by the officers of the Appellant

herein for furnishing false certifications by the Respondents.  In the criminal

case, however, they were acquitted by three different judgements passed on

20th April, 1987, 5th August, 1987 and 24th September, 1987.  Between

October, 1987 and August, 1988, the Respondents submitted fresh school

transfer certificates and requested the Appellant herein to reemploy them. 

As their request for reemployment was not accepted, an industrial dispute

was raised resulting in a reference made by the Central Government for

adjudication thereof to the Central Government Industrial Tribunal,

Bangalore.  The Industrial Tribunal by an award dated 18.12.1997 held that

the Respondents having  completed 240 days of service; and their

terminations having been brought about without complying with the

provisions of Section 25F of the Industrial Disputes Act, and, thus, being

illegal they were entitled to be reinstated in the Bank's services as per the

prevailing rules and conditions of the service with full back wages.

 

            The Appellant herein filed a Special Leave Petition against the said

award which was dismissed as withdrawn with liberty to it to approach the

High Court.  The Appellant filed writ petitions before the Karnataka High

Court.  By an order dated 30th November, 1998, the writ petitions were

dismissed by the learned Single Judge whereagainst writ appeals were filed

by the Appellant which were marked as WA No. 3700 of 1999 and 5301 to

5310 of 1999.  By reason of the impugned judgment dated 25th June, 2002,

the Division Bench allowed the said appeal in part modifying the award of

the Tribunal as also the learned Single Judge to the effect that the back

wages be paid from 23rd July, 1993 instead of their respective dates of

retrenchment.  The Division Bench, however, gave liberty to the Appellant

to hold domestic enquiry against the Respondents for the alleged misconduct

committed by them.  The Division Bench in issuing the aforesaid direction

inter alia held that as the Respondents were not regularized in services for

the alleged misconduct of producing false certificates, the same would

amount to stigma and loss of confidence of the Appellant in them. 

 

            Mr. Mahendra Anand, learned senior counsel appearing on behalf of

the Appellant would contend that as the Respondents herein did not report

for duty between December, 1982 and March, 1987, they must be held to

have abandoned their services. 

 

            The learned counsel would contend that the learned Tribunal

committed a serious error of law insofar as it failed to take into consideration

the fact that the Respondents were not able to prove that they had completed

240 days of service during a period of 12 months preceding the order of

termination and in that view of the matter the question of compliance of

Section 25F of the Industrial Disputes Act did not arise at all.  Our attention

was also drawn  to the fact that during pendency of aforementioned

industrial adjudication the management and the Union had arrived at a

settlement pursuant whereto or in furtherance whereof all posts had been

filled up.  In any event, it was urged, only because the Respondents have

allegedly completed 240 days of work, the same by itself would not confer

any right on them to be regularized in service.  Reliance in this connection

has been placed on Maharashtra State Cooperative Cotton Growers'

Marketing Federation Ltd. and Another Vs. Employees' Union and Another 

[1994 Supp. (3) SCC 385]

 

            The learned counsel would submit that no adverse inference could

have been drawn for non-production of attendance register as sufficient

explanation therefor had been furnished.  Reliance in this connection has

been placed on Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8

SCC 195].

 

            It was further urged that the burden of proof in that behalf lay upon

the Respondents and in support thereof reliance has been placed on M.P.

Electricity Board Vs. Hariram  [(2004) 8 SCC 246].

 

            The Tribunal, according to Mr. Anand, misdirected itself in passing

the impugned award insofar as it considered irrelevant factors and failed to

take into consideration the relevant facts. The learned counsel has further

placed before us some school transfer certificates produced by some of the

Respondents in December, 1982 and March, 1987 with a view to show that

the action taken by the Appellant herein was not wholly arbitrary so as to

justify a direction for reinstatement of the Respondents in service only on

the ground that they stood acquitted in the criminal cases.  The judgments of

the criminal court having been rendered by giving benefit of doubt to the

Respondents herein, the learned counsel would submit,  the same itself could

not have been a  ground for grant of relief.  Reliance in this connection has

been placed on Union of India and Another Vs. Bihari Lal Sidhana [(1997) 4

SCC 385].

 

            Mr. N.G. Phadke, learned counsel appearing on behalf of the

Respondents, on the other hand, supported the award of the Tribunal and

consequently the judgments of the learned Single Judge and the Division

Bench of the Karnataka High Court contending that

 

(i)         the Respondents' contentions that they continued in service, from

March 1980 to August 1982 as disclosed in their pleadings and

representations, having not  been denied, the same must be held to have been

admitted.

(ii)        as the Appellant herein could not prove its  case that the Respondents

had abandoned their services, the Tribunal rightly placed the onus of proof

on it;

(iii)       as despite an order made in this behalf the Appellant did not produce

attendance registers, the impugned award could have been passed upon

drawing an adverse inference.  Reliance in this behalf has been placed on

H.D. Singh Vs. Reserve Bank of India and Others [(1985) 4 SCC 201].

 

 (iv)      in any event, the Appellant never raised a contention that the

Respondents had not worked for more than 240 days during preceding 12

months. 

(v)        the order of the Division Bench being a consent order, no appeal lies

thereagainst.

(vi)       although by reason of the Respondents' being reinstated in service,

they would continue to have the status of Ticca Mazdoors, but having regard

to the intervening circumstances, viz., the settlement arrived at by and

between the Appellant and the Union, they would be entitled to be

regularized in services in terms of the decision of this Court in Chief General

Manager, Reserve Bank of India Vs. General Secretary, Reserve Bank

Workers Organisation [2001 (2) LLJ 487]; and

(vii)      section 25F of the Industrial Disputes Act being mandatory in nature,

the provisions thereof are required to be complied with even when the

workmen were employed as Badli Workers or Ticca Mazdoors as daily

wager.  Reliance in this behalf has been placed on The State Bank of India

Vs. Shri N. Sundara Money [(1976) 1 SCC 822], H.D. Singh (supra),

Management of M/s. Willcox Buckwell India Ltd. Vs. Jagannath and Others

[(1974) 4 SCC 850], L. Robert D'Souza Vs. Executive Engineer, Southern

Railway and Another [(1982) 1 SCC 645], Samishta Dube Vs. City Board,

Etawah and another [1999 Lab. I.C. 1125] and Moolchand Kharati Ram

Hospital K. Union Vs. Labour Commissioner and Others [2000 (2) LLJ

1411].

 

 STATUS OF TICCA MAZDOORS:

 

            As noticed hereinbefore, Ticca Mazdoors are not regarded as regular 

Mazdoors. Two waiting lists are maintained by the appellant.  The first

waiting list contains the names of such Mazdoors who may be appointed as

regular Mazdoors whereas the second list is maintained for those who are to

be engaged as Ticca Mazdoors.           

 

            The service of Ticca Mazdoors being not permanent in nature can be

dispensed with subject to compliance of the statutory or contractual

requirements, if any.  Their status is not higher than that of a temporary

workman or a probationer.  (See Civil Appeal No. 4868 of 1999, Karnataka

State Road Transport Corporation & Another Vs. S.G. Kotturapp & Anr.,

disposed of on 3rd March, 2005)

 

 

 

 

EFFECT OF JUDGMENT OF ACQUITTAL:

 

            The Appellant's contention as regard holding of interview of the

Respondents herein in December, 1982 and March, 1987 is not denied or

disputed.  It is also further not in dispute that their educational qualifications

and other details were required to be verified.  Institution of three criminal

cases stands admitted.  Before us a judgment passed in the criminal cases

has been produced, from a perusal whereof it would appear that the

contention raised by the Respondents herein that they had never produced

any transfer certificate at the time of interview was not raised.  If the

contention of the Appellant as regard production of transfer certificates by

the Respondents at the time of their interview finds acceptance, then

concededly the said certificates vis-`-vis the certificates produced by the

Respondents in the year 1987 are different in several respects, including the

name of the father and name of the school, date of birth, etc.  It is true that

the certificates produced by them in 1987 were found to be genuine but the

same by itself would not lead to a conclusion, as suggested by Mr. Phadke,

that the Respondents themselves did not produce the said certificates before

the interview board or the same were manufactured by the officers of the

Reserve Bank of India.

 

            It is trite that a judgment of acquittal passed in favour of the

employees by giving benefit of doubt per se would not be binding upon the

employer.  The employer had no occasion to initiate departmental

proceeding against the Respondents.  They were not regularly employed. 

They, according to the Appellant, filed forged and fabricated documents and

as such were not found fit to be absorbed in regular service.  The effect of a

judgment of acquittal vis-`-vis the alleged misconduct on the part of the

workmen fell for consideration before this Court in Bihari Lal Sidhana

(supra) wherein it was held:

 

"5. It is true that the respondent was acquitted by

the criminal court but acquittal does not

automatically give him the right to be reinstated

into the service. It would still be open to the

competent authority to take decision whether the

delinquent government servant can be taken into

service or disciplinary action should be taken

under the Central Civil Services (Classification,

Control & Appeal) Rules or under the Temporary

Service Rules. Admittedly, the respondent had

been working as a temporary government servant

before he was kept under suspension. The

termination order indicated the factum that he, by

then, was under suspension. It is only a way of

describing him as being under suspension when

the order came to be passed but that does not

constitute any stigma. Mere acquittal of

government employee does not automatically

entitle the government servant to reinstatement.

As stated earlier, it would be open to the

appropriate competent authority to take a

decision whether the enquiry into the conduct is

required to be done before directing

reinstatement or appropriate action should be

taken as per law, if otherwise, available. Since

the respondent is only a temporary government

servant, the power being available under Rule

5(1) of the Rules, it is always open to the

competent authority to invoke the said power and

terminate the services of the employee instead of

conducting the enquiry or to continue in service a

government servant accused of defalcation of

public money. Reinstatement would be a charter

for him to indulge with impunity in

misappropriation of public money."

 

            Recently in Krishnakali Tea Estate Vs. Akhil Bharatiya Chah

Mazdoor Sangh and Another [(2004) 8 SCC 200], one of us, Santosh Hegde,

J., speaking for a 3-Judge Bench observed:

 

"25. The next contention addressed on behalf of

the respondents is that the Labour Court ought not

to have brushed aside the finding of the criminal

court which according to the learned Single Judge

"honourably" acquitted the accused workmen of

the offence before it.  We have been taken through

the said judgment of the criminal court and we

must record that there was such "honourable"

acquittal by the criminal court.  The acquittal by

the criminal court was based on the fact that the

prosecution did not produce sufficient material to

establish its charge which is clear from the

following observations found in the judgment of

the criminal court:

 

"Absolutely in the evidence on record of the

prosecution witnesses I have found nothing against

the accused persons.  The prosecution totally fails

to prove the charges under Sections 147, 353, 329

IPC."

 

26. Learned counsel for the respondents in regard

to the above contention relied on a judgment of

this Court in the case of Capt. M. Paul Anthony. 

In our opinion, even that case would not support

the respondents herein because in the said case the

evidence led in the criminal case as well as in the

domestic enquiry was one and the same and the

criminal case having acquitted the workmen on the

very same evidence, this Court came to the

conclusion that the finding to the contrary on the

very same evidence by the domestic enquiry would

be unjust, unfair and rather oppressive.  It is to be

noted that in that case the finding by the Tribunal

was arrived at in an ex parte departmental

proceeding.  In the case in hand, we have noticed

that before the Labour Court the evidence led by

the management was different from that led by the

prosecution in the criminal case and the materials

before the criminal court and the Labour Court

were entirely different.  Therefore, it was open to

the Labour Court to have come to an independent

conclusion dehors the finding of the criminal

court"

 

 

            It was observed:

 

"From the above, it is seen that the approach and

the objectives of the criminal proceedings and the

disciplinary proceedings are altogether distinct and

different.  The observations therein indicate that

the Labour Court is not bound by the findings of

the criminal court."

 

            In Cholan Roadways Limited Vs. G. Thirugnanasambandam [2004

(10) SCALE 578], this Court held:

 

"19.      It is further trite that the standard of proof

required in a domestic enquiry vis-`-vis a criminal

trial is absolutely different.  Whereas in the former

'preponderance of probability' would suffice; in

the latter, 'proof beyond all reasonable doubt' is

imperative."

 

            The contention that the Respondents had not produced such

certificates or the same have been fabricated at the instance of some officers

of the Reserve Bank of India, therefore, does not find our acceptance.  It is

rejected accordingly.

 

SECTION 25F OF THE INDUSTIRAL DISPUTES ACT:

 

            The provisions contained in Section 25F of the Industrial Disputes Act

are required to be complied with if the workmen concerned had completed

240 days of service in a period of 12 months preceding the order of

termination.  The Tribunal admittedly based its decision on the following:

 

(i)         The Appellant did not produce the attendance register.

(ii)        There was circumstantial evidence to show that the Respondents

herein had made several representations between March, 1987 and April,

1990.

(iii)       The witness examined on behalf of the 

Appellant MW3 conceded that the workmen had worked for 240 days.

 

            The workmen raised a contention of rendering a continuous service

between April, 1980 to December, 1982 in their pleadings and

representations.  Admittedly, the Appellant herein in their rejoinder denied

and disputed the said facts stating:

 

"i) as regards paragraph 1, it is denied that the I

Party has worked continuously from April, 1980 to

December, 1982.  The factual position is that the I

party was engaged off and on from August 80 to

January 83 depending upon the availability of

casual vacancies on various dates and the need for

engaging ticcas."

 

 

            The concerned workmen in their evidence did not specifically state

that they had worked for 240 days.  They merely contended in their affidavit

that they are reiterating their stand in the claim petition.

 

Pleadings are no substitute for proof.  No workman, thus, took an oath

to state that they had worked for 240 days.  No document in support of the

said plea was produced.  It is, therefore not correct to contend that the plea

raised by the Respondents herein that they have worked continuously for

240 days was deemed to have been admitted by applying the doctrine of

non-traverse.  It  any event the contention of the Respondents having been

denied and disputed, it was obligatory on the part of the 

Respondents to add new evidence.  The contents raised in the letters of the

Union dated 30th May, 1988 and 11th April, 1990 containing statements to

the effect that the workmen had been working continuously for 240 days

might not have been replied to, but the same is of no effect as by reason

thereof, the allegations made therein cannot be said to have been proved

particularly in view of the fact that the contents thereof were not proved by

any witness.  Only by reason of non-response to such letters, the contents

thereof would not stand admitted.  The Evidence Act does not say so.  

 

The Appellant, therefore, cannot be said to have admitted that the 

Respondents had worked for more than 240 days.

 

 

NON-PRODUCTION OF THE DOCUMENTS:

 

            It is no doubt true that the industrial tribunal by an order dated 12th

May, 1993 inter alia directed the Appellant to produce register of workmen

for the period between April, 1980 and December, 1982 in respect of the

first party workmen and attendance register.  The Tribunal, however, in its

award noticed the explanation of the Appellant that the attendance registers

being old and hence could not be produced holding:

 

"Of course, it is true that the 2nd party had given an

explanation namely those attendance registers are

very old and hence could not be produced.  But

this explanation cannot be acceptable, because as I

pointed out earlier, apart from the attendance

registers, there may be other relevant records to

show that the 1st parties either worked

continuously as alleged by the 1st parties or only

during the leave vacancy with break of service."

 

 

            The learned Tribunal further held:

 

"Therefore, the materials placed before this

Tribunal lead to the only conclusion that the 2nd

party is not in a position to prove their case namely

the concerned 1st parties 1 to 11 had abandoned

themselves without any proper reasons."

 

 

            An adverse inference, therefore, was drawn for non-production of the

attendance register alone, and not for non-production of the wage-slips. 

Reference to 'other relevant documents' must be held to be vague as the

Appellant herein had not been called upon to produce any other document

for the said purpose.

 

            It appears that the learned Tribunal considered the matter solely from

the angle that the Appellant has failed to prove its plea of abandonment of

service by the Respondents.

 

            The question came up for consideration before this Court recently in

Siri Niwas (supra) wherein it was held:

 

"15A Court of Law even in a case where

provisions of the Indian Evidence Act apply, may

presume or may not presume that if a party despite

possession of the best evidence had not produced

the same,  it would have gone against his

contentions.  The matter, however, would be

different where despite direction by a court the

evidence is withheld.  Presumption as to adverse

inference for  non-production of evidence is

always optional and one of the factors which is

required to be taken into consideration in the

background of facts involved in the lis. The

presumption, thus, is not obligatory because

notwithstanding the intentional non-production,

other circumstances may exist upon which such

intentional non-production may be found to be

justifiable on some reasonable grounds."

 

            Referring to the decision of this Court in Indira Nehru Gandhi Vs. Raj

Narain [1975 Supp SCC 1], this Court observed:

 

"19. Furthermore a party in order to get benefit of

the provisions contained in Section 114(f) of the

Indian Evidence Act must place some evidence in

support of his case.  Here the Respondent failed to

do so."

 

 

            In Hariram (supra), this Court observed:

 

"11. The above burden having not been discharged

and the Labour Court having held so, in our

opinion, the Industrial Court and the High Court

erred in basing an order of reinstatement solely on

an adverse inference drawn erroneously."

 

 

            As noticed hereinbefore, in this case also the Respondents did not

adduce any evidence whatsoever.  Thus, in the facts and circumstances of

the case, the Tribunal erred in drawing an adverse inference.

 

BURDEN OF PROOF:

 

            The initial burden of proof was on the workmen to show that they had 

completed 240 days of service.  The Tribunal did not consider the question

from that angle.  It held that the burden of proof was upon the Appellant on

the premise that they have failed to prove their plea of abandonment of

service stating:

 

 

"It is admitted case of the parties that all the 1st

parties under the references CR No. 1/92 to 11/92

have been appointed by the 2nd party as ticca

mazdoors.  As per the 1st parties, they had worked

continuously from April, 1980 to December, 1982. 

But the 2nd party had denied the above said claim

of continuous service of the 1st parties on the

ground that the 1st parties has not been appointed

as regular workmen but they were working only as

temporary part time workers as ticca mazdoor and

their services were required whenever necessary

arose that too on the leave vacancies of regular

employees.  But as strongly contended by the

counsel for the 1st party, since the 2nd party had

denied the above said claim of continuous period

of service, it is for the 2nd party to prove through

the records available with them as the relevant

records could be available only with the 2nd party."

 

 

            The Tribunal, therefore, accepted that the Appellant had denied the

Respondents' claim as regard their continuous service.

 

 

 

            In Range Forest Officer Vs. S.T. Hadimani [(2002) 3 SCC 25], it was

stated:

 

"3In 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.

 

[See also Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400]

 

            In Siri Niwas (supra), this Court held:

 

"The provisions of the Indian Evidence Act 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 herein to show that he had worked

for 240 days  in preceding twelve months prior to

his alleged retrenchment.  In terms of Section 25-F

of the Industrial Disputes Act, 1947, an order

retrenching a workman would not be effective

unless the conditions precedent therefor are

satisfied.  Section 25-F postulates the following

conditions to be fulfilled by employer for effecting

a valid retrenchment :

 

(i)         one month's notice in writing

indicating the reasons for

retrenchment or wages in lieu thereof;

 

(ii)        payment of compensation equivalent

to fifteen days, average pay for every

completed year of continuous service

or any part thereof in excess of six

months."

 

            It was further observed:

 

"14 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 25B of

the Industrial Disputes Act.  Apart from examining

himself in support of his contention he did not

produce or  call for any document from the office

of the Appellant herein including the muster rolls.

It is improbable that a person working in a Local

Authority would not be in possession of any

documentary evidence to support his claim before

the Tribunal. Apart from muster rolls he could

have shown the terms and conditions of his offer

of appointment and the remuneration received by

him for working during the aforementioned period. 

He even did not examine any other witness in

support of his case."

 

 

            Yet again in Hariram (supra), it was opined:

 

"10We cannot but bear in mind the fact that the

initial burden of establishing the factum of their

continuous work for 240 days in a year rests with

the respondent applicants.

 

 

            Mr. Phadke placed strong reliance on H.D. Singh (supra) to contend

that adverse inference was drawn therein for non-production of certain

documents.  H.D. Singh (supra) was rendered on its own fact.  In that case, a

Special Leave Petition was entertained by this Court directly from the

Award passed by the Industrial Tribunal.  Before this Court, both the parties

filed affidavits and several documents.  The workmen therein categorically

disclosed the number of days they had worked in each year.  In that case the

name of the workman was struck off as he had  allegedly concealed his

educational qualification; purportedly on the basis of a confidential circular

issued by the bank on June 27, 1976 to the effect that the matriculates will

not be retained in the list.  As the workman therein in reply to the letter of

the Bank stated that he was not a matriculate in 1974 and he passed the

examination only in 1975, he was not given any work even after July, 1976

without issuing any written notice terminating his services.  Holding that the

workman had been retrenched from service, as noticed hereinbefore,

affidavits of the parties were filed and, thus, some evidence had been

adduced.  The number of actual days worked by the workman therein was

also brought on records by the Respondent.  The said decision, thus, having

been rendered in the fact situation obtaining therein does not constitute a

binding precedent.

 

 CIRCUMSTANTIAL EVIDENCE:

 

            The Tribunal also relied upon some purported circumstantial evidence

to hold that the workmen had completed 240 days of work in the following

terms:

 

"That apart, the circumstantial evidence also

would show that the plea of the abandonment had

been taken by the 2nd party only for the sake of

defence in this case and it is not a real one.  In

order to explain the same when we perused the

admitted documents Exs. M1 to M7 together with

the admitted evidence of MW3 at para 5 of his

deposition, we would see that from 3.3.87 till

11.4.90 either almost all the 1st parties before this

Tribunal had continuously requested the

management for their reinstatement alleging that

they served in the 2nd party Bank continuously

from April, 1980 to December, 1982.  They also

pleaded the same in their respective claim petitions

before us.  But the management as per Exs. M8

dated 8.5.1991 had not denied the alleged claim of

continuous service of the 1st parties at their earliest

opportunity.  But, on the other hand, Ex.M8 would

show that for absorption of the 1st parties the 2nd

party had put some other conditions and demanded

the 1st parties workmen for their signature if they

agreed for those conditions.  If that be the case, it

could be seen that, at the earliest point of time, the

2nd party Bank had not denied the said claim of

continue service made by 1st parties.  Hence, the

documents Exs. M1 to M8 would also disqualify

the 2nd party from claiming said plea namely since

because the 1st parties had worked temporarily that

too only on leave vacancy they are not entitled for

any benefits under the provisions of the I.D. Act."

 

            It is difficult to accept the logic behind the said findings.

 

            Only because the Appellant failed to prove their plea of abandonment

of service by the Respondents, the same in law cannot be taken to be a

circumstance that the Respondents have proved their case.

           

            The circumstances relied upon, in our opinion, are wholly irrelevant

for the purpose of considering as to whether the Respondents have

completed 240 days of service or not.  A party to the lis may or may not

succeed in its defence.  A party to the lis may be filing representations or

raising demands, but filing of such representations or raising of demands

cannot be treated as circumstances to prove their case.

 

ADMISSION BY MW3

 

            We have been taken through the deposition of Shri S. Nagarajan,

MW3.  He was examined as a witness to prove production of the certificates

by the Respondents.  He had verified transfer certificates filed subsequently

by the Respondents and the same were found to be all genuine.  He did not

make any admission as regard the continuous working of the Respondents

for a period of more than 240 days nor is there even a suggestion to that

effect on behalf of the Respondents herein.

 

            The Tribunal's findings are, thus, based on no evidence and must be

held to be irrational.

 

JUDICIAL REVIEW:

            The findings of the learned Tribunal, as noticed hereinbefore, are

wholly perverse.  He apparently posed unto itself wrong questions.  He

placed onus of proof wrongly upon the Appellant.  His decision is based

upon irrelevant factors not germane for the purpose of arriving at a correct

finding of fact.  It has also failed to take into consideration the relevant

factors.  A case for judicial review, thus, was made out.

 

            In Cholan Roadways Limited (supra), this Court held:

 

"34 In the instant case the Presiding Officer,

Industrial Tribunal as also the learned Single Judge

and the Division Bench of the High Court

misdirected themselves in law insofar as they

failed to pose unto themselves correct questions.  It

is now well-settled that a quasi-judicial authority

must pose unto itself a correct question so as to

arrive at a correct finding of fact.  A wrong

question posed leads to a wrong answer.  In this

case, further more, the misdirection in law

committed by the Industrial Tribunal was apparent

insofar as it did not apply the principle of Res ipsa

loquitur which was relevant for the purpose of this

case and, thus, failed to take into consideration a

relevant factor and furthermore took into

consideration an irrelevant fact not garmane for

determining the issue, namely, the passengers of

the bus were mandatorily required to be examined. 

The Industrial Tribunal further failed to apply the

correct standard of proof in relation to a domestic

enquiry, which in "preponderance of probability"

and applied the standard of proof required for a

criminal trial.  A case for judicial review was, thus,

clearly made out."

 

 

            The Appellant in para 13.14 of the writ petition contended:

 

"13.14 For that the Industrial Tribunal erred in

holding that all the Ticca Mazdoors are workmen

as they have completed 240 days of continuous

service during the year 1980-1982, merely because

the Petitioner could not produce the attendance

registers for the relevant period as the same being

old, and destroyed after expiry of its stipulated

period of preservation of 5 years were not

available with the Petitioner Bank."

 

            Neither the learned Single Judge nor the Division Bench adverted to

the said question at all.  The learned Single Judge without considering the

contentions raised by the Appellant held:

 

"The Tribunal has extensively dealt with the points

of dispute relating to justification of the Bank in

terminating the services of the workmen.  In

paragraphs 16 to 49 the Tribunal has elaborately

discussed facts, evidence and the material placed

on record with reference to the case laws relating

to 'retrenchment'.  In this view of the matter, it is

wholly unnecessary to refer Mr. Padke, learned

counsel for respondents 1 to 11.  The Tribunal has

recorded a finding that the action of the Bank

amounts to retrenchment as defined under Section

2(oo) of the Act and there is violation of

mandatory requirement Section 25-F of the Act. 

Therefore, this Court should not interfere with the

findings of fact recorded by the Tribunal."

 

            The Division Bench unfortunately in its judgment did not take into

consideration the relevant questions.  It proceeded on a pre-supposition that

the Bank intended to reinstate the workmen.  The Division Bench without

any detailed discussion observed:

 

"The submission of Mr. Kasturi, learned senior

counsel for the Bank has some force in so far as

both the order of the Tribunal and the learned

Single Judge proceeded on the footings that the

termination was contrary to Section 25F of the

Industrial Dispute Act."

 

            Laying emphasis on the alleged right of the Respondents to be

regularized in their services and denial thereof by the Appellant herein, the

Division Bench held that discontinuance of the workmen on the ground that

they filed forged certificates cast a stigma and, on that ground, it upheld the

award of the learned Industrial Tribunal as also the judgment of the learned

Single Judge.

 

            The Division Bench, however, relying on or on the basis of, the

decision of this Court in Chief General Manager, Reserve Bank of India

(supra) directed that the backwages shall be paid only from 23.7.1993.

 

EFFECT OF THE ORDER OF REINSTATEMENT:

            The terms and conditions of settlement by and between the Reserve

Bank of India and the Reserve Bank Workers Federation although not

produced before us, the same appear in a judgment of this Court in M.G.

Datania & Ors. Vs. Reserve Bank of India & Anr. [Civil Appeal No. 7407 of

1994, disposed of on 28th November, 1995]; the relevant portion whereof is

as under:

 

"Terms of Settlement:

(i) The existing arrangement or practice of

engaging persons on daily wages purely on

temporary and ad hoc basis in Class IV in various

cadres shall be discontinued forthwith.

 

(ii) The leave reserve in the case of mazdoors

employed in Cash Department shall be increased

from the existing level of 15% to 25%.

 

(iii) The leave reserve in other categories in Class

IV shall be increased from the existing level of

15% to 20%.

 

(iv) The additional posts that may be created or

may arise as a consequence of paragraphs (ii) and

(iii) above, together with existing vacancies, if any,

shall be utilized for giving (a) full time

employment to part-time employees to the extent

possible and (b) regular full-time or part-time

employment, as the case may be, to the ticcas who

have rendered continuous service of three years or

more as on 19th November, 1992.  However, if the

number of available vacancies at a particular

centre is less than the number of such ticcas at that

centre to be given regular full-time/ part  time

appointments, the ticcas in excess of the available

vacancies at that centre shall have to move at their

own cost to another centre where vacancies are

available after absorbing eligible ticcas at that

centre on a returnable basis as and when vacancies

arise in the parent centre.  Such repatriation being

in the nature of request transfer shall be at their

own cost and also subject to usual terms and

conditions prescribed in respect of request

transfers.  Such of the ticcas who are not willing to

the above arrangements shall have no claim to be

absorbed in the Bank.

 

(v) The Federation shall not under any

circumstances insist on engagement of ticcas on

daily wage basis for carrying out Bank's work

smoothly and without any hindrance or disturbance

in any Section/ Department including Cash

Department of the Bank irrespective of number of

employees absent for any reason whatsoever.  In

other words, not withstanding any absenteeism in

Class IV cadre (any group), the work of the Bank

shall be carried on by and with the assistance of

the employees present on any given day.  If,

however, there is an increase in the Bank's normal

work on a long term basis it would review the

overall strength in Class IV cadre at the centre

concerned in the normal course."

 

            One of the terms, therefore, postulates that regular full time or part

time Ticcas whether in regular full time or part time employment who have

rendered continuous service of three years or more as on 19th November,

1992 were entitled to be considered for absorption in the additional posts

that were required to be created by reason of such settlement.  Such

settlement had been arrived having regard to the fact that the same Ticca

Mazdoors had been working for a long time.

 

            Absorption of the Ticca Mazdoors in the services of the Appellant

was not automatic.  The concerned workmen were required to fulfill the

conditions laid down therefor.

 

            Would by reason of the order of reinstatement, the status of the

Respondents change is, the question.

 

            In law, 240 days of continuous service by itself does not give rise to

claim of permanence.  Section 25F provides for grant of compensation if a

workman is sought to be retrenched in violation of the conditions referred to

therein.  [See Maharashtra State Cooperative Cotton Growers' Marketing

Federation Ltd.(supra).  See also Madhyamik Siksha Parishad, U.P. Vs. Anil

Kumar Mishra and others, etc., AIR 1994 SC 1638]

 

            In A. Umarani (supra), this Court held:

 

"Regularisation, in our considered opinion, is not

and cannot be the mode of recruitment by any

"State" within the meaning of Article 12 of the

Constitution of India or any body or authority

governed by a Statutory Act or the Rules framed

thereunder.  It is also now well-settled that an

appointment made in violation of the mandatory

provisions of the Statute and in particular ignoring

the minimum educational qualification and other

essential qualification would be wholly illegal. 

Such illegality cannot be cured by taking recourse

to regularisation.  (See State of H.P. Vs. Suresh

Kumar Verma and Another, (1996) 7 SCC 562)."

 

 

            Yet again, in Executive Engineer, ZP Engg. Divn. And Another Vs.

Digambara Rao and Others [(2004) 8 SCC 262] this Court held:

 

"It may not be out of place to mention that

completion of  240 days of continuous service in a

year may not by itself be a ground for directing an

order of regularization.  It is also not the case of

the Respondents that they were appointed in

accordance with the extant rules.  No direction for

regularization of their services was, therefore,

could be issued."

 

            Furthermore, a direction for reinstatement for non-compliance of the

provisions of Section 25F of the Industrial Disputes Act would restore to the

workmen the same status which he held when terminated.  The Respondents

would, thus, continue to be Ticca Mazdoors, meaning thereby their names

would continue in the second list.  They had worked only from April, 1980

to December, 1982.  They did not have any right to get work.  The direction

of continuity of service per se would not bring them within the purview of

terms of settlement.  Even in the case of a statutory corporation in S.G.

Kotturappa (supra), this Court observed:

 

"It is not a case where the Respondent has

completed 240 days of service during the period of

12 months preceding such termination as 

contemplated  under Section 25-F read with

Section 25-B of the Industrial Disputes Act, 1947. 

The Badli workers, thus, did not acquire any legal

right to continue in service.  They were not even

entitled to the protection under the Industrial

Disputes Act nor the mandatory requirements of

Section 25-F of the Industrial Disputes were

required to be complied with before terminating

his services, unless they complete 240 days service

within  a period of twelve months preceding the

date of termination."

 

 

            It was further held:

 

"The terms and conditions of employment of

a Badli worker may have a statutory flavour but

the same would not mean that it is not otherwise

contractual.  So long as a worker remains a Badli

worker, he does not enjoy a status.  His services

are not protected by  reason of any provisions of

the statute.  He does not hold a civil post.  A

dispute as regard purported wrongful termination

of services can be raised only if such termination

takes place in violation of the mandatory

provisions of the statute governing the services. 

Services of a temporary employee or a badli

worker can be terminated upon compliance of the

contractual or statutory requirements."

 

 

            Mr. Phadke, as noticed hereinbefore, has referred to a large number of

decisions for demonstrating that this Court had directed reinstatement even

if the workmen concerned were daily wagers or were employed

intermittently.  No proposition of law was laid down in the aforementioned

judgments.  The said judgments of this Court, moreover, do not lay down

any principle having universal application so that the Tribunals, or for that

matter the High Court, or this Court, may feel compelled to direct

reinstatement with continuity of service and backwages.  The Tribunal has

some discretion in this matter.  Grant of relief must depend on the fact

situation obtaining in a particular case.  The industrial adjudicator cannot be

held to be bound to grant some relief only because it will be lawful to do so.

 

            In Haryana State Coop. Land Dev. Bank Vs. Neelam [JT 2005 (2) SC

600], this Court observed:

 

"It is trite that the courts and tribunals having

plenary jurisdiction have discretionary power to

grant an appropriate relief to the parties.  The  aim

and object of the Industrial Disputes Act may be to

impart social justice to the workman but the same

by itself would not mean that irrespective of his

conduct a workman would automatically be

entitled to relief.  The procedural laws like

estoppel, waiver and acquiescence are equally

applicable to the industrial proceedings.  A person

in certain situation may even be held to be bound

by the doctrine of Acceptance Sub silentio." 

 

OTHER CONTENTIONS:

            We have noticed hereinbefore that the Appellant herein raised a

specific plea denying or disputing the claim of the Respondents that they had

completed 240 days of work.  Such a plea having been raised both before the

Industrial Tribunal as also before the High Court, we cannot accept that the

Appellant had abandoned such a plea.  Even in this Special Leave Petition, it

is contended:

 

"(3)For that the High Court ought to have held that

the disengagement of the Ticca Mazdoors

(Respondents), who were daily wage casual

workers, did not involve any retrenchment and as

such there was no question of reinstatement of

Respondents will full backwages from 23.7.1993."

 

 

            The contention of Mr. Phadke that they have abandoned the said plea

cannot be accepted.  Similarly, the contention of Mr. Phadke raised before us

that the order passed by the Division Bench was a consent order is

unacceptable.  The Division Bench does not say so.  Such a contention has

been raised only on the basis of a statement made by the Respondents in the

Counter-affidavit wherein the reference had been made to one order of the

Division Bench asking the parties to make endeavour for settlement.  The

Respondents contend that the order of the Division Bench is virtually a

consent order.  No settlement admittedly had been arrived at.  A party to the

lis, in absence of a statutory interdict, cannot be deprived of his right of

appeal.  The High Court has passed the judgment upon consideration of the

rival contentions raised at the Bar.  It arrived at specific findings on the

issues framed by it.  It has, for the reasons stated in the impugned judgment,

affirmed the findings of the Industrial Tribunal as also the learned Single

Judge.  The impugned order of the Division Bench, in our opinion, by no

stretch of imagination, can be said to have been passed with consent of the

parties.  However, we agree with the opinion of the Tribunal that the plea of

abandonment of service by the Respondents in the facts and circumstances

of the case was wholly misconceived.

 

CONCLUSION:

 

            For the reasons, aforementioned, the impugned judgments cannot be

sustained which are accordingly set aside.  The appeals are allowed. 

However, in the facts and circumstances of the case, there shall be no order

as to costs.

 
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