Full Judgment Text
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CASE NO.:
Appeal (civil) 7902 of 2004
PETITIONER:
Manager (Now Regional Director) R.B.I.
RESPONDENT:
Gopinath Sharma & Anr.
DATE OF JUDGMENT: 17/07/2006
BENCH:
Dr. AR. Lakshmanan & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
Dr. AR. Lakshmanan, J.
The appellant, The Manager (Now Regional Director),
Reserve Bank of India, Mall Road, Kanpur, aggrieved against
the final judgment and order dated 4.9.2003 of the High
Court of Judicature at Allahabd in Civil Misc. Writ Petition
No. 35290 of 1996, has filed this appeal. The High Court
allowed the writ petition filed by the first respondent herein
and set aside the award of the Industrial Tribunal/Labour
Court and ordered reinstatement on similar post with back
wages.
BACKGROUND FACTS:
Respondent No.1 was advised that he has been wait
listed for daily wage casual employment in the Bank at
Lucknow office of the Bank. Respondent No.1 applied for
consideration of his day-to-day appointment which request
was acceded to. In June, 1975, respondent No.1 acquired
qualification of High School but did not inform the Bank
about the same. Therefore, his name was included in the
fresh list from 1.7.1975 to 30.6.1976 and was allowed to
work during the aforesaid period. The name of respondent
No.1 was not included in the fresh list from 1.7.1976 to
30.7.1977. He made representation for inclusion of his
name in the fresh list from 1976-1977. However, his
representation was turned down by the Bank. Respondent
No.1 again started making representations for taking him
back on the basis of the judgment of this Court in H.D.
Singh vs. Reserve Bank of India, AIR 1986 SC 132 =
1985(4) SCC 201 and thereafter raised an industrial dispute
before the Assistant Labour Commissioner (Central) Kanpur.
The Central Government referred the matter for adjudication
to the Labour Court/Industrial Tribunal, Kanpur as under:-
"Whether the action of management of RBI,
Kanpur in striking off the name of Gopi Nath
Sharma from the list of approved peon-cum-Farash
is justified? If not, to what relief the concerned
workman is entitled?"
On 30.7.1996, an award was passed by the Tribunal
rejecting the claim of respondent No.1 on the ground of delay
and laches and also on merits holding that since as per
evidence adduced before Tribunal, he did not complete the
service of 240 days in the Bank, he is not entitled to the
benefit of Section 25F of the Industrial Disputes Act, 1947
(hereinafter referred to as "the I.D. Act") or the benefit of the
judgment of this Court in H.D. Singh vs. Reserve Bank of
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India(supra).
Aggrieved by the rejection, respondent No.1 filed
C.M.W.P.No. 35290 of 1996 before the High Court on
4.11.1996. On 4.9.2003, the High Court delivered the
judgment allowing the writ petition ordering reinstatement of
respondent No.1 with back wages @ 10% from 1976 to 1989
and @ 50% from 1989 till 4.9.2003 (the date of judgment).
Aggrieved by the above judgment, the appellant filed the
present appeal.
QUESTIONS OF LAW
The questions of law that arise for consideration before
us are as under:
1. As to whether the High Court in a petition
under Art. 226 of the Constitution of India,
assailing the correctness of the judgment of
the Labour Tribunal on a dispute arising
under the Industrial Disputes Act, was
justified in examining the policy of the R.B.I.
on a touchstone of Art. 14 of the
Constitution of India?
2. Whether the High Court, in proceedings
under Art. 226, can interfere with the
findings of the Central Government
Industrial Tribunal-cum-Labour Court on
factual issues in the absence of a challenge
on the ground of perversity and can award
relief on a ground not raised before
Tribunal?
3. Whether a person can be ordered
reinstatement even when he was engaged on
day-to-day basis and it is not established
that he was working on regular post and
without establishing any right to hold any
post particularly when respondent No.1 had
worked only for 58 days?
We heard Mr. Mahendra Anand, learned senior
counsel, assisted by Mr. H.S. Parihar, learned counsel,
appearing for the appellant and Mr. Pramod Swarup, learned
counsel appearing for respondent No.1.
Learned senior counsel appearing for the appellant
drew our attention to the award passed by the Tribunal. The
Tribunal held that the reference was highly belated as the
name of the concerned workman was expunged in 1976
itself. The Tribunal also relied on the judgment in the case
of Balwant Singh vs. Labour Court, Bhatinda 1996
Labour Industrial Cases 45 wherein five years’ old reference
was held to be belated by the Court and in the absence of
sufficient explanation, relief of reinstatement was denied.
Relying upon this authority, the Tribunal held that the
concerned workman would not be entitled for any relief. On
merits, the Tribunal observed as under:
"On merits too, the case of the concerned
workman is not proved. The concerned workman
has filed his affidavit. He was cross examined,
whereas the management has given the evidence of
Kanhaiya Lal Prasad MW.1 who had stated that the
concerned workman had not completed 240 days
in any calendar year. He has not been cross-
examined. Thus, this evidence is unchallenged.
Consequently, relying upon his evidence, it is held
that the concerned workman has not completed
240 days in a calendar year. Hence Section 25 F is
not attracted."
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As stated above, the respondent herein invoked the
jurisdiction of the High Court under Art. 226 of the
Constitution of India by filing a writ petition with a prayer to
quash the order dated 30.7.1996 passed by the Tribunal
and the verbal order dated 29.7.1976 passed by respondent
No.2 in the writ petition for deletion of the name of the
petitioner (respondent No.1 herein) from the list of peon-
cum-Farash of the Reserve Bank of India. A further
direction in the nature of mandamus commanding the
Presiding Officer (respondent No.2 in the writ petition) to
include the name of respondent No.1 herein in the list of
peon-cum-Farash with retrospective effect from 29.7.1976
with all the consequential benefits was sought for. The writ
petition was resisted by the Reserve Bank of India by filing a
detailed counter affidavit in the High Court.
The High Court firstly took up the preliminary
objection for consideration which was to the effect that
reference was barred by time as it has been made after
about 13 years and that the respondent was wait listed for
the post of Peon-cum-Farash in 1973. As far as the
question of validity of reference is concerned, the High
Court held that the Tribunal cannot go into the validity of
the reference and that the employer can challenge the
reference order on the ground of delay and since the
reference order was not challenged by the Bank, the Labour
Court was obliged to decide the matter and that the Labour
Court was not authorized to go into the validity including
delay. The High Court, as far as, the question of validity of
discontinuing the services of respondent No.1 due to over-
qualification was concerned, it has held that over
qualification cannot be a disqualification for peon-cum-
Farash where maximum qualification prescribed was 8th
pass. The High Court further observed that such an
approach amounts to discouraging acquisition of education
on the one hand and that such an approach is clearly
arbitrary, discriminatory and not in national interest.
As regards the statutory requirement of 240 days in a
calendar year, the High Court has observed that even if the
stand taken by the Bank that the respondent had not
completed 240 days in a calendar year is taken to be
correct, it will not make much difference and that by virtue
of the reference, the Labour Court was required to judge as
to whether the action of the Bank in striking off the name of
respondent No.1 from the list of approved employees was
justified or not.
According to the High Court, acquiring higher
qualification is not misconduct and hence, dismissal of
workman on this ground is wrongful dismissal. The High
Court further observed that some of the juniors of
respondent No.1 were retained on the ground that they had
not acquired higher qualification and that the Bank
specifically did not deny this fact and in such a situation if
the removal of respondent No.1 is taken to be retrenchment,
he would be entitled to relief under Section 25 G of the I.D.
Act. It was, therefore, held that the employer-Bank
wrongfully terminated the services of respondent No.1 by
not including his name in the list prepared after June, 1976
and that the order of the Labour Court deciding the
reference against the respondent-workman is illegal and
liable to be set aside. As far as, back wages is concerned,
the High Court held that the workman is entitled to get
nominal wages of 10% and thereafter 50% respectively.
In the result, the High Court allowed the writ petition
filed by the respondent herein and set aside the order of the
Tribunal and the action of the management of the Bank in
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striking out the name of respondent No.1 from the list of
approved peon-cum-Farash after June, 1976 and further
directed that the respondent must be reinstated and
appointed to the similar post.
Learned senior counsel appearing for the appellant
submitted that the High Court’s judgment is perverse and
that the High Court cannot interfere with the findings of the
Tribunal on factual issues in the absence of a challenge on
the ground of perversity and cannot award any relief on a
ground nor raised before the Tribunal.
Learned senior counsel further submitted that the
respondent \026 a daily wage worker, was engaged on day to-
day basis and that it was not established that he was
working on a regular basis and without establishing any
right to hold any post. Learned senior counsel also
submitted that the High Court erred in examining the
legality of the policy and giving relief solely on the ground
that it found the policy and actions of the appellant contrary
to Articles 14 & 16 of the Constitution. In this context, it
was submitted that the High Court has taken into
consideration an entirely new aspect which was neither
pleaded by the petitioner (respondent No.1 herein) in the
writ petition before the High Court nor was claimed in the
claim statement filed before the Tribunal, without giving
any opportunity to the appellant to effectively reply to the
same i.e., the aspect of alleged arbitrariness and
discrimination in not considering the over qualified person
for further day to-day engagement. He further submitted
that the High Court erred in not taking into account the
categoric finding that respondent No.1 had not completed
240 days of service in the Bank and holding that this will
not make much difference.
Per contra, Mr. Pramod Swarup, learned counsel
appearing for respondent No.1, submitted that acquiring
higher qualification is not a misconduct and hence
dismissal of workman on this ground is wrongful dismissal
and that the High Court considered the contention of
respondent No.1 that some of his juniors were retained on
the ground that they had not acquired higher qualification,
and the Bank did not deny this fact and that the employer-
Bank wrongfully terminated the services of respondent No.1
by not including his name in the list prepared after June,
1976 and that the order of the Labour Court/Tribunal
deciding the reference against the workman is illegal and
liable to be set aside. Learned counsel further submitted
that respondent No.1 worked for more than 240 days and
that the Management did not produce the attendance
Register for the period involved and only produced some of
the documents by which it could show that respondent No.1
had not worked for more than 240 days. Without the
attendance register and other material which was withheld
by the Bank, the respondent was handicapped in cross
examining the management witness. He denied that the
respondent has worked only for 58 days. In conclusion, he
submitted that this Court cannot interfere with the well
considered judgment of the High Court which has rightly set
aside the order of the Tribunal and ordered reinstatement
with back wages.
We have carefully considered the rival submissions
made by learned counsel appearing for the respective
parties. Learned senior counsel appearing for the appellant,
in support of his contention, cited many decisions. We shall
advert to the decisions cited at a later stage. We have also
carefully perused the relevant records and the orders
impugned in this appeal.
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In our opinion, the High Court has committed a patent
error in allowing the writ petition filed by the respondent
herein who is a daily wage worker when it was not
established that he was working on regular basis. The High
Court, in our opinion, is not justified in directing that
respondent No.1 must be reinstated and appointed to
similar post. The High Court has also clearly erred in
examining the legality of the policy and giving relief solely
on the ground that it found the policy and actions of the
appellant contrary to Arts. 14 & 16 of the constitution. It is
pertinent to notice that the High court has taken into
consideration an entirely new aspect which was neither
pleaded by the petitioner in the writ petition before the High
Court nor was claimed in the claim statement filed before
the Tribunal without giving an opportunity to the parties to
effectively reply to the same. Likewise, the High Court also
failed to consider that the system of engagement of ’Ticca
Mazdoors’ has since been abolished in November, 1993,
while this fact was brought on record of High Court in the
counter affidavit filed on behalf of the Bank.
It is a matter of documentary proof that the
respondent has worked only for 58 days as could be seen
from the statement filed by the Bank. This document was
annexed to the reply filed on behalf of the Bank before the
Tribunal. In paragraph 9 of the reply, the Bank stated as
follows:
"As regards para 9, Shri Vidya Dutta and
others mentioned herein were either non-
matriculates or had completed 240 working days in
the preceding 12 calendar months at the relevant
time. As such, Shri Sharma’s case is not
comparable to those cases and there is no
discrimination in not including his name in the
fresh waiting list."
The respondent has worked only for 58 days. There is
no cross-examination on this aspect. It is also not out of
place herein to mention that respondent No.1 was
discharged in July, 1976 and the Central Government
referred the matter for adjudication on 25.1.1989 nearly
after 13 years.
Employers in relation to the Management of
Sudamdih Colliery of M/s Bharat Coking Coal Ltd. Vs.
Their Workman represented by Rashtriya Colliery
Mazdoor Sangh, JT 2006 (1) SC 411 :
This case, in turn, refers to the judgments in
Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors.,
JT 2000(1) SC 388 and S.M. Nilajkar & Ors. Vs. Telecom
District Manager, Karnataka, JT 2003(3) SC 436. This
Court held that even though there is no limitation
prescribed for reference of disputes to an industrial
tribunal, even so it is only reasonable that the disputes
should be referred to as soon as possible after they have
arisen and after conciliation proceedings have failed
particularly so when disputes relate to discharge of
workmen. This Court has held that a delay of four years in
raising the dispute after even re-employment of most of the
old workmen was held to be fatal. In Nedungadi Bank
Ltd’s case (supra) this Court held a delay of seven years to
be fatal and disentitled the workmen to any relief.
In our opinion, a dispute which is stale could not be a
subject matter of reference.
In our view, respondent No.1 was not appointed to
any regular post but was only engaged on the basis of the
need of the work on day to-day basis and he has no right to
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the post and that his dis-engagement cannot be treated as
arbitrary. The High Court, in our view, has totally
misdirected itself in holding that non-consideration of the
name of respondent No.1 on acquiring higher qualification
is not misconduct, hence, dismissal of the workman on this
ground is wrongful within the meaning of Item 3, Schedule
II to the Industrial Disputes Act, 1947 without giving any
reason as to how non-inclusion of name for day to-day
appointment amounts to wrongful dismissal. The High
Court completely erred in relying on Section 25 G of the
I.D. Act while not holding that the workman has been
retrenched within the meaning of Section 25F and thus
misdirected itself about the applicability of provisions of
Section 25G of the I.D. Act even if it does not involve
retrenchment. The High Court also failed to consider that
the inclusion of the name in the waiting list for
appointment as ’Ticca Mazdoor’ on day to-day basis does
not confer any right for regular appointment or to hold any
post. As already noticed, no relief can now be given to
respondent No.1 especially when the system of keeping
waiting list for Ticca Mazdoor has been dispensed with
since 23.7.1993 and at present the Bank does not maintain
any list. The High Court, therefore, wrongly proceeded on
the basis as if the daily wage appointment is for a regular
post on which a person can be reinstated. The High Court
has also committed an error in giving the relief of
reinstatement with back wages without considering
whether the concerned workman was gainfully employed
from 1976 till date of judgment, there being no evidence on
record. Likewise, the High Court ought to have seen that
respondent No.1 was not entitled to any back wages on the
basis of the well settled principle "No work \026 No Pay". In
our opinion, the High Court has completely erred in
ordering an appointment to a similar post on which a
person just before the name of respondent No.1 is at
present working without considering the fact that such
person must be senior to the workman concerned and was
already promoted to the next cadre in Class III.
Mr. Pramod Swarup, learned counsel appearing for
the respondent argued that along with respondent No.1,
Vidya Dutta, Ram Roop Pasi, Lakhan Lal Srivastava, Aquil
Ahmad, Mazafar alam, Chandra Bhan and Mahesh Kumar
Shukla were also appointed by the Bank in Class IV Staff
and the former four persons are still working as Coin Note
Examiners drawing about Rs.2000/- per month and the
latter three persons have been absorbed as labour and
peon drawing about Rs.1700/- per month. The respondent
has stated that besides financial loss, his promotions have
also been adversely affected by the discriminate and illegal
termination of his services/striking his name from the
approved list of peon-cum-Farash w.e.f. July, 1976. In
paragraph 9 of the reply, the Bank has denied the said
statement as could be seen from paragraph supra.
This categorical denial has not been considered by
the High Court and the High Court does not even refer to
this aspect. We have already noticed that the respondent
has worked only for 58 days and that the monthly chart
filed and annexed to the reply affidavit clearly shows that
the respondent has actually worked for 58 days only.
Regional Manager, S.B.I. vs. Rakesh Kumar
Tewari, JT 2006(1) SC 252 (Ruma Pal & Dr. AR.
Lakshmanan,JJ.) :
In the above case, there was no pleading that there is
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violation of Section 25G of the I.D. Act. Respondent No.1
raised no allegation of violation of Section 25G of the I.D.
Act in his statement of claim before the Tribunal. This
judgment also refers to the judgment in Regional
Manager, State Bank of India vs. Raja Ram, (2004) 8
SCC 164, where this Court held:
’before an action can be termed as an unfair
labour practice it would be necessary for the
Labour Court to come to a conclusion that the
badlis, casuals and temporary workmen had been
continued for years as badlis, casuals or temporary
workmen, with the object of depriving them of the
status and privileges of permanent workmen. To
this has been added the judicial gloss that artificial
breaks in the service of such workmen would not
allow the employer to avoid a charge of unfair
labour practice. However, it is the continuity of
service of workmen over a period of years which is
frowned upon. Besides, it needs to be emphasized
that for the practice to amount to unfair labour
practice it must be found that the workmen had
been retained on a casual or temporary basis with
the object of depriving the workman of the status
and privileges of a permanent workman. There is
no such finding in this case. Therefore, Item 10 in
List I of the Fifth Schedule to the Act cannot be
said to apply at all to the respondent’s case and the
Labour Court erred in coming to the conclusion
that the respondent was in the circumstances,
likely to acquire the status of a permanent
employee."
The Haryana State Agricultural Marketing Board
vs. Subhash Chand & Anr., JT 2006(3) SC 393 :
This case relates to the disengagement of casual
employees. The question arose was as to whether the
provisions of Section 25G are to be complied with. In this
case, the respondent was appointed on contractual basis
by the appellant during paddy seasons on consolidated
wages. Upon termination of the services, the respondent
raised an industrial dispute. The appellant took the stand
that the respondent was employed only for 208 days
during the previous year whereas the respondent
contended that he had worked for 356 days. The Labour
Court held that the termination was violative of Section
25G of the I.D. Act and hence an unfair labour practice.
The appellant filed a writ petition against the decision of
the Labour Court which was dismissed by the High Court.
Setting aside the decision of the Labour Court, the High
Court held Fifth Schedule to the I.D. Act inapplicable and
hence dispensing with the engagement of the respondent
cannot be said to be unwarranted in law.
Secretary, State of Karnataka & Ors. Vs. Umadevi
& Ors., JT 2006(4) SC 420 :
In paragraphs 34 & 35 of the above judgment, this
Court held as under:
" 34. While answering an objection to the locus
standi of the writ petitioners in challenging the
repeated issue of an ordinance by the Governor of
Bihar, the exalted position of rule of law in the
scheme of things was emphasized, Chief Justice
Bhagwati speaking on behalf of the Constitution
Bench in Dr. D.C. Wadhwa & Ors. v. State of
Bihar & Ors. stated:
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"The rule of law constitutes the core of our
Constitution of India and it is the essence of the
rule of law that the exercise of the power by the
State whether it be the Legislature or the Executive
or any other authority should be within the
constitutional limitations and if any practice is
adopted by the Executive which is in flagrant and
systemic violation of its constitutional limitations,
petitioner no. 1 as a member of the public would
have sufficient interest to challenge such practice
by filing a writ petition and it would be the
constitutional duty of this Court to entertain the
writ petition and adjudicate upon the validity of
such practice."
Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of
our Constitution and since the rule of law is the
core of our Constitution, a court would certainly be
disabled from passing an order upholding a
violation of Article 14 or in ordering the overlooking
of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law,
has necessarily to hold that unless the
appointment is in terms of the relevant rules and
after a proper competition among qualified persons,
the same would not confer any right on the
appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the
contract, if it were an engagement or appointment
on daily wages or casual basis, the same would
come to an end when it is discontinued. Similarly a
temporary employee could not claim to be made
permanent on the expiry of his term of
appointment. It is also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of
his appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a
due process of selection as envisaged by the
relevant rules. It is not open to the court to prevent
regular recruitment at the instance of temporary
employees whose period of employment has come
to an end or of ad hoc employees who by the very
nature of their appointment do not acquire any
right. High Courts acting under Article 226 of the
Constitution of India should not ordinarily issue
directions for absorption, regularization or
permanent continuance unless the recruitment
itself was made regularly and in terms of the
constitutional scheme. Merely because an
employee had continued under cover of an order of
court, which we have described as ’litigious
employment’ in the earlier part of the judgment, he
would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such
cases, the High Court may not be justified in
issuing interim directions, since, after all, if
ultimately the employee approaching it is found
entitled to relief it may be possible for it to mould
the relief in such a manner that ultimately no
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prejudice will be caused to him, whereas an interim
direction to continue his employment would hold
up the regular procedure for selection or impose on
the state the burden of paying an employee who is
really not required. The courts must be careful in
ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or
its instrumentalities or lend themselves the
instruments to facilitate the bypassing of
constitutional and statutory mandates.
35. The concept of ’equal pay for equal work’
is different from the concept of conferring
permanency on those who have been appointed on
ad hoc basis, temporary basis or based on no
process of selection as envisaged by the rules. This
court has in various decisions applied the principle
of equal pay for equal work and has laid down the
parameters for the application of that principle.
The decisions are rested on the concept of equality
enshrined in our Constitution in the light of the
Directive Principles in that behalf. But the
acceptance of that principle cannot lead to a
position where the court could direct that
appointments made without following the due
procedure established by law, be deemed
permanent or issue directions to treat them as
permanent. Doing so would be negation of the
principle of equality of opportunity. The power to
make an order as is necessary for doing complete
justice in any cause or matter pending before this
court, would not normally be used for giving the
go-by to the procedure established by law in the
matter of public employment. Take the situation
arising in the cases before us from the State of
Karnataka. Therein, after the Dharwad decision,
the Government had issued repeated directions
and mandatory orders that no temporary or ad hoc
employment or engagement be given. Some of the
authorities and departments had ignored those
directions or defied those directions and had
continued to give employment specifically
interdicted by the orders issued by the Executive.
Some of the appointing officers have even been
punished for their defiance. It would not be just or
proper to pass an order in exercise of jurisdiction
under Article 226 or 32 of the Constitution or in
exercise of power under Article 142 of the
Constitution of India permitting those persons
engaged, to be absorbed or to be made permanent
based on their appointments or engagements.
Complete justice would be justice according to law
and though it would be open to this court to mould
the relief, this court would not grant a relief which
would amount to perpetuating an illegality."
Manager, Reserve Bank of India, Bangalore vs. S.
Mani & Ors. , (2005) 5 SCC 100:
In paragraphs 30 & 31 of the above judgment, this
Court held as under:
"30. In Range Forest Officer v. S.T.Hadimani ((2002)
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3 SCC 25) it was stated:
"3\005.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 or 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."
31. In Siri Niwas, (2002) 8 SCC 400, this Court
held :
"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. 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 therefore are satisfied.
Section 25-F postulates the following conditions to
be fulfilled by an 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 15
days average pay for every completed year of
continuous service or any part thereof in
excess of six months."
It was further observed:
"14. \005As 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. 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
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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
did not even examine any other witness in support
of his case."
This judgment was approved in the case of Secretary,
State of Karnataka & Ors. Vs. Umadevi & Ors. (supra).
This judgment also refers to the H.D. Singh’s case (supra).
This Court held that H.D. Singh’s case was rendered on its
own facts.
In M.G. Datania vs. Reserve Bank of India, (2004) 10
SCC 451, while the L.P.A. was pending in the High Court, a
terms of settlement was arrived at on 23.7.1993 between the
Management of the Bank and the Reserve Bank Workers’
Federation. The relevant portion 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) \005\005\005\005\005\005\005\005\005\005\005.
(iii) \005\005\005\005\005\005\005\005\005\005\005\005
(iv) \005\005\005\005\005\005\005\005\005\005\005.."
This Court in a recent judgment in the case of
Rajasthan State Road Transport Corpn. & Ors. Vs.
Zakir Hussain, (Ruma Pal & Dr. AR. Lakshmanan,JJ.),
(2005) 7 SCC 447, this Court held as under:
"The respondent was a temporary employee of
the appellant Corporation on probation for a period
of two years. His services were terminated by an
order of termination simpliciter. The order was
innocuous and without any stigma or evil
consequences visiting him. Therefore, there was no
requirement under the law to hold any enquiry
before terminating the services. The courts below
have also erred in granting back wages along with
reinstatement. Even otherwise, the respondent has
not led any evidence before the trial Court except
his own ipse dixit to show that his services were
terminated on the ground of any alleged
misconduct. Therefore, it was not obligatory on the
part of the Corporation to hold an enquiry before
terminating the services."
For the aforesaid reasons, we are of the opinion that
respondent No.1 has worked for 58 days on casual basis,
therefore, he is not entitled for any relief in his belated claim.
The High Court, on erroneous view of the facts and
circumstances of the case, allowed the writ petition filed by
the respondent herein without taking into account the
categoric finding of fact that respondent No.1 had not
completed 240 days of service in the Bank and held that this
will not make much difference. In our opinion, such a
casual approach is not warranted in the facts and
circumstances of the case. We, therefore, have no hesitation
in setting aside the order dated 4.9.2003 passed by the High
Court in C.M.W.P. No. 35290 of 1996 and affirm the order
passed by the Tribunal.
In the result, the appeal succeeds. However, there
shall be no order as to costs.