R.B.I., Bangalore Vs. S. Mani & Ors  Insc
173 (14 March 2005)
Hegde, B.P. Singh & S.B. Sinha S.B. Sinha, J :
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.
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
Between October, 1987 and August, 1988, the Respondents submitted fresh school
transfer certificates and requested the Appellant herein to reemploy them.
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.
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was dismissed as withdrawn with liberty to it to approach the High Court.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.
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
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' [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 SCC 195].
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.
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 SCC 385].
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
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.
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;
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 (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.
order of the Division Bench being a consent order, no appeal lies thereagainst.
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 Workers Organisation
[2001 (2) LLJ 487]; and
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 Etawah and another [1999 Lab.
I.C. 1125] and Moolchand Kharati Ram 1411].
OF TICCA MAZDOORS:
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.
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 disposed of on 3rd March, 2005)
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.
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.
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
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.
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." Mazdoor Sangh and Another [(2004) 8 SCC
200], one of us, Santosh Hegde, J., speaking for a 3-Judge Bench observed:
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
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."
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.
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:
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." (10) SCALE 578], this Court held:
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.
25F OF THE INDUSTIRAL DISPUTES ACT:
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:
The Appellant did not produce the attendance register.
There was circumstantial evidence to show that the Respondents herein had made
several representations between March, 1987 and April, 1990.
The witness examined on behalf of the Appellant MW3 conceded that the workmen
had worked for 240 days.
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:
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.
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.
Appellant, therefore, cannot be said to have admitted that the Respondents had
worked for more than 240 days.
OF THE DOCUMENTS:
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:
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
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.
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.
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
question came up for consideration before this Court recently in Siri Niwas
(supra) wherein it was held:
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."
Narain [1975 Supp SCC 1], this Court observed:
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:
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.
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:
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,
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.
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.
Niwas (supra), this Court held:
provisions of the Indian Evidence Act per se are not applicable in an
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 :
one month's notice in writing indicating the reasons for retrenchment or wages
in lieu thereof;
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:
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.
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.
even did not examine any other witness in support of his case." Yet again
in Hariram (supra), it was opined:
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
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
Tribunal also relied upon some purported circumstantial evidence to hold that
the workmen had completed 240 days of work in the following terms:
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
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.
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.
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.
Tribunal's findings are, thus, based on no evidence and must be held to be
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.
Roadways Limited (supra), this Court held:
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.
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:
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:
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.
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:
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.
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.
OF THE ORDER OF REINSTATEMENT:
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. 1994, disposed of on 28th November,
1995]; the relevant portion whereof is as under:
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
The leave reserve in the case of mazdoors employed in Cash Department shall be
increased from the existing level of 15% to 25%.
The leave reserve in other categories in Class IV shall be increased from the
existing level of 15% to 20%.
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
time employment to part-time employees to the extent possible and
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.
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.
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.
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.
by reason of the order of reinstatement, the status of the Respondents change
is, the question.
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 Kumar Mishra and
others, etc., AIR 1994 SC 1638] In A. Umarani (supra), this Court held:
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
illegality cannot be cured by taking recourse Kumar Verma and Another, (1996) 7
SCC 562)." Digambara Rao and Others [(2004) 8 SCC 262] this Court held:
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:
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.
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:
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.
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.
this Court observed:
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."
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:
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."
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.
the reasons, aforementioned, the impugned judgments cannot be sustained which
are accordingly set aside. The appeals are allowed.
in the facts and circumstances of the case, there shall be no order as to