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CASE NO.: Appeal (civil)  4396 of 2003

PETITIONER: Bank of Baroda                                   

RESPONDENT: Ghemarbhai Harjibhai Rabari           

DATE OF JUDGMENT: 17/03/2005

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

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       This appeal arises out of a reference made to the Central  Industrial Tribunal, Ahmedabad, in regard to the termination of  services of the respondent herein. Said reference culminated in  an award directing the appellant herein to reinstate the  respondent herein in service at his original post with continuity  of service and full backwages. A challenge to the said award  made before a learned Single Judge of the Gujarat High Court  by way of a writ petition came to be dismissed. A further appeal  filed before a Division Bench of the same High Court also came  to be dismissed, hence, this appeal.

       Before the Industrial Tribunal, the respondent claimed  that he was working with the appellant-bank as a driver on a  salary of Rs.1,500 p.m. driving a car belonging to the bank  allotted to one of its officers by name Mr. Menon. He claimed  that he worked in that capacity from June, 1994 to October,  1995, and the salary paid to him was debited to the account of  the bank in its books. He also claimed that from October, 1995  his services were illegally terminated without paying any  compensation under Section 25A of the Industrial Disputes Act,  (the Act) and in violation of Sections 25G and 25H of the Act  and on that basis he claimed his reinstatement with full  backwages.

       The bank in its turn denied the claim of the appellant that  he was employed by it. It took a stand that it was a nationalised  bank and under its rules and regulations any appointment that is  made, will have to be through a letter of appointment and such  appointment has to be made through the Employment Exchange  or through an advertisement made by the bank. No such  procedure was followed in the appointment of the workman in  this case. It took the stand that it has a scheme under which the  bank allotted a car to some of its Executives but the bank did  not provide a driver for the car and the responsibility of having  a driver was that of the concerned Executive, and if such  Executive appointed a driver, the employment of the driver  came to an end with the Executive’s retirement or transfer.  Therefore, such drivers were not employees of the bank. It,  however, admitted that the amount of salary which is Rs.1,500  in this case paid by the Executive concerned was reimbursed by  the bank but that did not make the driver an employee of the  bank. According to the appellant-bank, this is a scheme which  is applicable in many of the nationalised banks and the drivers

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of such vehicles are personal employees of the Executives  concerned.

       The Industrial Tribunal after holding an inquiry came to  the conclusion that though there was no letter of appointment  produced by the workman, he had produced 3 vouchers  Exhibits 14 to 16 which showed that he was paid a sum of  Rs.1,500 towards his wages as a driver and also established the  fact that he had continuously worked from 17.7.1994 to  10.10.1995. The tribunal also noticed the fact that the bank in  turn did not produce any material whatsoever either to establish  its scheme as pleaded before the tribunal or to deny or explain  the vouchers produced as Exhibits 14 to 16 by the workman to  prove that he had received salary from the bank. It is on the  basis of the said factual background that there being no material  produced by the bank either to establish the existence of a  scheme under which the respondent-workman was employed or  there being no explanation in regard to the payment vouchers  Exhibits 14 to 16 produced by the workman, the tribunal came  to the conclusion that in spite of the fact that there was no letter  of appointment since the factum of the workman having worked  between July, 1994 and October, 1995 was established, the  termination of the services of the workman was contrary to the  provisions of the Act. Accordingly, it accepted the reference  and made the award as stated hereinabove.

       As noted above, challenge to the said award by the bank  before the learned Single Judge as well as before the Division  Bench of the High Court has failed. The Division Bench of the  High Court in the impugned order agreed with the finding of  the tribunal that the respondent-workman was driving the car of  the bank between July, 1994 and October, 1995. It also  accepted the genuineness of the vouchers Ex. 14 to 16 which  showed the payment made by the bank to the workman, hence,  came to the conclusion that such vouchers would not have been  issued by the bank if really the respondent-workman was not  employed by the bank itself. It also noticed the fact that the  signatures of the workman were obtained in the Register  maintained by the bank. It further noticed the fact that as  against the said evidence produced by the respondent-workman,  there was absolutely no evidence led by the bank. Thus, it  concurred with the findings of fact arrived at by the tribunal as  affirmed by the learned Single Judge.

       Before the Division Bench of the High Court the bank  had relied on a judgment of this Court in the case of Range  Forest Officer etc. v. S. T. Hadimani (2002 (3) SCC 25) which  judgment was distinguished by the High Court in the impugned  order by holding that unlike in that case, in the present case the  employee has by cogent evidence established that he had  worked as a driver of the car of the bank for the period from  July, 1994 to October, 1995. Even the judgment of this Court in  the case of Punjab National Bank v. Ghulam Dastagir (1978 2  SCC 358) was distinguished by the High Court since the ratio   laid down in the said case would not apply in view of the  established facts of this case. Mr. S.S. Javali, learned senior  counsel appearing for the appellant-bank, contended that the  bank has a procedure for employing its workmen and the  respondent-workman having admittedly, not appointed as per  the said procedure and having not produced any letter of  appointment, the tribunal and the courts below seriously erred  in accepting the oral version of the workman. He also  contended that the burden of proof that the workman was  employed by the bank being on him, the same has not been  discharged, therefore, the labour court and the High Court erred

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in wrongly shifting the onus on the appellant-bank to disprove a  case not established by the workman. He also placed reliance  on a judgment of this Court in the case of M.P. Electricity  Board v. Hariram (2004 (8) SCC 246).

       Dr. Rajeev Dhawan, learned senior counsel appearing for  the respondent-workman, supported the findings of the tribunal  as well as the labour court and contended that the workman to  the extent possible had produced the material that was available  with him and even that material has not been rebutted in any  manner by the appellant-bank. He further contended that it has  even failed to establish that there was a scheme by which the  concerned Executive was to employ his own driver. He  submitted that in the instant case the vouchers Exhibits 14 to 16  clearly showed that the payment made to the workman was by  the bank, hence, these findings being findings of fact, this Court  should not interfere with the conclusions arrived at by the  labour court and the High Court.

While there is no doubt in law that the burden of proof  that a claimant was in the employment of a Management,  primarily lies on the workman who claims to be a workman.  The degree of such proof so required, would vary from case to  case. In the instant case, the workman has established the fact  which, of course, has not been denied by the bank, that he did  work as a driver of the car belonging to the bank during the  relevant period which come to more than 240 days of work. He  has produced 3 vouchers which showed that he had been paid  certain sums of money towards his wages and the said amount  has been debited to the account of the bank. As against this, as  found by the fora below, no evidence whatsoever has been  adduced by the bank to rebut even this piece of evidence  produced by the workman. It remained contented by filing a  written statement wherein it denied the claim of the workman  and took up a plea that the employment of such drivers was  under a scheme by which they are, in reality, the employee of  the Executive concerned and not that of the bank; none was  examined to prove the scheme. No evidence was led to  establish that the vouchers produced by the workman were  either not genuine or did not pertain to the wages paid to the  workman. No explanation by way of evidence was produced to  show for what purpose the workman’s signatures were taken in  the Register maintained by the bank. In this factual background,  the question of workman further proving his case does not arise  because there was no challenge at all to his evidence by way of  rebuttal by the bank.

As held by the High Court and referred to hereinabove,  neither the judgment of this Court in the case of Punjab  National Bank (supra) nor in Range Forest Officer (supra)  would assist the appellant in this case because of the proved  facts of this case. Even the case of M.P. Electricity Board  (supra) relied upon by the learned counsel for the appellant,  does not help the appellant. Said judgment only lays down that   the initial burden of establishing the factum of the workman  having continuously worked 240 days in a year, rests with the  workman (See para 10). In this case that factum having been  established, even that case, as stated, would not assist the  appellant in challenging the orders of the courts below.

For the reasons stated above, we are of the considered  opinion that the respondent-workman in this case has  established his claim as held by the tribunal, and we find no  reason whatsoever to interfere with the impugned order. The  appeal fails and the same is dismissed with costs.    

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