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.
