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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

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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

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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.

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       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:

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"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\005"

       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

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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:

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"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:

"15\005A 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

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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:

"3\005In 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

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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\005 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:

"10\005We 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

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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.

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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\005 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

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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 \026 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

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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.

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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

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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.