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Judgment
The present petition is filed under Article 226/227 of the Constitution of India assailing order dated 24.05.2006 (hereinafter 'impugned order') passed by the learned Presiding Officer, Central Government Industrial Tribunal cum Labour Court-II (hereinafter 'Labour Court') in I.D. No. 190/1999 whereby the learned Labour Court held the respondent's termination illegal and awarded reinstatement with 50% back wages.
Briefly stated, the respondent workman was engaged by the petitioner bank as a waterboy-cum-messenger at its Baraut branch from 19.07.1994 onwards. The services of the workman were terminated by the petitioner bank on 10.10.1996.
Aggrieved thereby, the respondent workman raised an industrial dispute and the following reference was made to the learned Labour Court on 30.08.1999:
"Whether the action of the Management of the SBI in terminating the services of Shri Vijay Singh ex-temporary messenger-cum-water boy w.e.f. 11.10.96 is just, fair and legal? If not, what relief he is entitled to and from what date?"
The learned Labour Court, upon consideration of the material on record, held that the respondent had established that he had worked for more than 240 days and had performed the duties of a full-time worker. It further held that the termination, having been effected without compliance with Section 25F of the Industrial Disputes Act, 1947, was illegal. Thus, the learned Tribunal vide the impugned award answered the reference as under:
"The action of the management of State Bank of India in terminating the services of Shri Vijay Singh, Ex-Temporary/Water Boy w.e.f. 11.10.96 is neither just nor fair and nor legal. The management should reinstate the workman applicant w.e.f. 11.10.96 with 50% back wages and make payment of the entire arrears within two months from the date of publication of the award. In case of default the workman applicant will be entitled to get 10% interest on his accrued back wages."
Aggrieved thereby, the present petition has been filed. This Court, vide order dated 14.07.2010 stayed operation of the impugned award, subject to deposit of 50% back wages, by the petitioner, before this Court.
Learned counsel for the petitioner submits that the learned Tribunal erred in directing reinstatement, as the respondent was engaged only for 2–3 hours a day, as and when required, between 19.07.1994 and 10.10.1996 and was never in continuous service. He submitted that the petitioner had specifically pleaded this position in its written statement.
He submitted that under Section 25B(2) of the Industrial Disputes Act, 1947, a workman can be deemed to be in continuous service only upon establishing that he had actually worked under the employer for not less than 240 days during the twelve months preceding the date of termination.
He submitted that the onus of establishing that the workman had completed 240 days of actual service in the preceding year lies upon the workman himself. Reliance in this regard is placed upon Municipal Corporation, Faridabad v. Siri Niwas : (2004) 8 SCC 195.
He submitted that the respondent failed to discharge the aforesaid burden and did not produce any cogent or reliable evidence establishing that he had actually worked for 240 days during the twelve months preceding his termination. He further submitted that the respondent was engaged only for limited periods and, except for payment towards supply of water for the work actually performed, no regular wages or salary were paid to him. Thus, there was no material to establish any regular master-servant relationship between the parties.
He submitted that the learned Tribunal nevertheless proceeded to hold that the respondent had worked for 240 days, primarily on the basis of photocopies of duty charts, Peon Book and other documents, despite the petitioner having specifically denied the said documents and the Branch Manager having deposed that the alleged certificate and other documents relied upon by the respondent were forged and unauthenticated. He submitted that the learned Tribunal thus erred in treating the said documents as proved and in shifting the burden upon the petitioner, when the initial burden to establish completion of 240 days squarely lay upon the respondent workman.
He submitted that the respondent was neither appointed pursuant to any prescribed recruitment procedure nor against any sanctioned post. He submitted that the petitioner Bank engaged temporary employees in the subordinate cadre at its branches only to meet exigencies arising from the leave or illness of regular employees and other urgent requirements of the branch. He submitted that an appointment made in violation of the applicable recruitment rules cannot confer any enforceable right to continue in service or warrant reinstatement. In this regard, reliance is placed upon Haryana Tourism Corporation Ltd. v. Fakir Chand: (2003) 8 SCC 248 and National Fertilizers Ltd. v. Somvir Singh: (2006) 5 SCC 493.
He submitted that, without prejudice, even where termination of a daily-wage worker is found to be in violation of Section 25F, reinstatement is not an automatic consequence. He submitted that particularly where the appointment is temporary and the illegality is procedural, monetary compensation may appropriately be awarded in lieu of reinstatement. He submitted that thus, the learned Labour Court erred in awarding reinstatement with 50% back wages to the respondent workman.
Per Contra, the Learned counsel for the respondent workman submitted that the learned Tribunal rightly held that the respondent had continuously worked at the petitioner Bank's Baraut Branch from 18.07.1994 to 10.10.1996 and had completed more than 240 days of service. He submitted that the respondent was engaged as a Waterboy-cum-Messenger and his duties included supplying water, carrying dak, telegrams and posts to the post office and other banks, visiting the Treasury and performing other outdoor duties of the Bank.
He submitted that the respondent had placed sufficient documentary evidence on record to establish his continuous service and completion of 240 days. Reliance was placed upon the letter dated 30.08.1997 issued by the Regional Office, Meerut, calling upon the Baraut Branch to furnish details of the dates on which the respondent had worked, the mode of payment and copies of bills, and the consequent reply dated 30.12.1997 of the Branch Manager stating that the respondent had worked as a daily-wage Waterboy for 712 days up to September 1996 and had submitted 412 conveyance bills for visits to the Treasury, Telegram Office and other banks.
He submitted that the aforesaid reply of the Branch Manager was an admitted document and was specifically relied upon by the respondent in his Statement of Claim and evidence. The management did not deny the said document or the respondent's assertion regarding 712 days of service. The respondent had also placed on record copies of the attendance/duty charts, conveyance bills and Peon Book entries showing him performing messenger duties, none of which was specifically denied by the management.
He further submitted that the evidence of MW-1 itself corroborated the respondent's case. MW-1 admitted that the bills relating to the respondent's tenure had been passed by him and that the bills included those relating to water-carrier services, rickshaw charges, delivery of Government scrolls to Government departments and other outdoor services. Thus, the documentary and oral evidence established that the respondent was not merely engaged for 2–3 hours for supplying water, as alleged by the management, but was performing regular duties of the Bank.
He submitted that the identity certificate dated 01.08.1995 issued by the Baraut Branch also recorded that the respondent was working as a temporary Messenger/Waterboy on daily wages. The certificate was issued to enable the respondent to undertake outdoor duties as a representative of the Bank. He submitted that the management had not specifically denied the issuance of the said certificate in its written statement.
He submitted that the respondent's services were terminated on 10.10.1996 without notice, notice pay or retrenchment compensation, despite his having completed the requisite period of continuous service. The termination was, therefore, in clear violation of Section 25F of the Industrial Disputes Act, 1947. He submitted that the management could not defeat the statutory protection under Section 25F merely by describing the respondent as a temporary or daily-wage employee.
He further submitted that the plea of the management that the respondent was not appointed against a sanctioned post or in accordance with the recruitment rules was wholly irrelevant to the legality of his termination. He submitted that the present proceedings concerned the respondent's illegal termination and not a claim for regularisation. Having continuously employed the respondent for several years, the petitioner was bound to comply with the mandatory provisions governing retrenchment before discontinuing his services.
He submitted that reinstatement was the normal consequence of termination in violation of Section 25F and that the respondent was also entitled to appropriate back wages. He further submitted that the principle governing back wages was that an employee illegally deprived of service ought to be restored, as far as possible, to the position he would have occupied but for the illegal termination.
He accordingly submitted that the learned Tribunal had rightly answered the reference in favour of the respondent and directed his reinstatement with 50% back wages. He submitted that the impugned award called for no interference and the present petition deserved to be dismissed.
I have heard the arguments and perused the record.
At the outset, it is necessary to note that the scope of interference under Articles 226 and 227 of the Constitution of India with an Award passed by the Labour Court is limited. This Court does not sit as a Court of appeal over findings of fact rendered by the Labour Court. Interference is warranted only where the findings are perverse, based on no evidence, suffer from patent illegality, or disclose a jurisdictional error. Reference in this regard may be made to the judgment in International Airport Authority of India v. International Air Cargo Workers Union : (2009) 13 SCC 374 where the Hon'ble Apex Court held as under:
"47.It is true that in exercising the writ jurisdiction, the High Court cannot sit in appeal over the findings and award of the Industrial Tribunal and therefore, cannot reappreciate evidence. The findings of fact recorded by a fact-finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered with in writ jurisdiction merely on the ground that the material on which the Tribunal had acted was insufficient or not credible.
48.It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be interfered with merely because another view is also possible. But where the Tribunal records findings on no evidence or irrelevant evidence, it is certainly open to the High Court to interfere with the award of the Industrial Tribunal."
(emphasis supplied)
Adverting to the merits of the present case, the first issue that arises for consideration is whether the respondent had established that he had actually worked for not less than 240 days during the twelve months preceding his termination so as to attract the protection under Section 25F of the Industrial Disputes Act, 1947.
It is the case of the petitioner Bank that the respondent was engaged only for 2–3 hours a day, as and when required, between 19.07.1994 and 10.10.1996 and was paid only for the work actually performed. It was, therefore, contended that the respondent was never in continuous service and had failed to establish that he had actually worked for 240 days during the relevant period.
It is settled law that the initial onus of establishing that a workman had actually worked for 240 days during the twelve months preceding the date of termination lies upon the workman. Reliance in this regard is placed upon the judgment in R.M. Yellatti v. Asstt. Executive Engineer: (2006) 1 SCC 106, where the Hon'ble Apex Court held as under: -
"17.Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case."
(emphasis supplied)
Similarly, the Hon'ble Apex Court in Municipal Corpn., Faridabad v. Siri Niwas : (2004) 8 SCC 195 observed that the burden of proof is upon the workman to establish whether he has worked for a period of 240 days in one year so as to establish he has been in continuous service with the management. The relevant extract of the same is reproduced hereinbelow:
"14.For the said purpose it is necessary to notice the definition of "continuous service" as contained in Section 25-B of the Act. In terms of sub-section (2) of Section 25-B if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created. The retrenchment of the respondent took place on 17-5-1995. For the purpose of calculating as to whether he had worked for a period of 240 days within one year or not, it was, therefore, necessary for the Tribunal to arrive at a finding of fact that during the period between 5-8-1994 to 16-5-1995 he had worked for a period of more than 240 days. As noticed hereinbefore, the burden of proof was on the workman."
(emphasis supplied)
The question, therefore, is whether the respondent discharged the aforesaid burden by producing cogent material establishing that he had actually worked for the requisite period during the twelve months preceding his termination.
The learned Tribunal noted that the respondent had placed on record photocopies of the duty charts showing his engagement for 712 days, which had not been specifically denied by the petitioner Bank. The Tribunal further noted that the petitioner had itself admitted that the respondent was engaged during the period from 18.07.1994 to 10.10.1996 for 2–3 hours a day.
The learned Tribunal also relied upon the evidence of MW-1, the Branch Manager, who admitted that the bills relating to the respondent's tenure had been passed by him and that such bills included those pertaining to water-carrier services, rickshaw charges, delivery of Government scrolls to Government departments and other outdoor services. The Tribunal, therefore, rightly found that the respondent's duties extended beyond merely supplying water for 2–3 hours a day and included outdoor duties performed for and on behalf of the Bank.
The respondent's claim of having worked for 712 days is further corroborated by the communication dated 30.08.1997 issued by the Regional Office, Meerut, to the Baraut Branch, whereby the Branch was directed to furnish the dates on which the respondent had worked, the mode of payment and copies of the relevant bills. The said communication reads as under:
" State Bank of India
Region I, Meerut Z.O.
Dt.30.08.1997 Sub: Illegible Representation of .... Vijay Singh
With reference to your special letter No.22/53 dated the 2nd June, 1997 please go through your records and advise us all the dates on which Vij'ay Singh, Ex-Canteen Boy's services were taken at the Branch on Daily/weekly/monthly basis as a labourer/water boy and advise us mode of payments and photo copies of bills paid to Sh. Singh, in this regard should also be sent to us.
2.Please further also advise us whether any T.A.Bill(s) etc. have also been paid to Sh. Singh and if it is so please advise us in details with photo copies of such bills. Please treat the mater as urgent as the entire information is to be passed on to New Delhi L.H.O.
Yours faithfully,·
Sd/-
Asstt. General Manager"
In response to the aforesaid communication, the Branch Manager, Baraut Branch, vide communication dated 30.12.1997, specifically stated that the respondent had worked on daily wages as a Waterboy for 712 days up to September 1996 and had incurred 412 conveyance bills for visiting the Treasury, Telegram Office, other Banks etc. The said communication reads as under:
"Annexure 5(2)-Admitted by the Bank
AGM
State Bank of India
Region 5
Garh Road, Meerut
29.662Staff Misccllaneous
30.12.97With reference to Z.O.SL No.593 dt.30.08.97 we advise that Shri Vijay Singh worked on daily wages as water boy for 712 days upto September 1996 at this Branch. The detailed statement is enclosed for necessary action at Z. O. Meerut. In this connection we may also add that he has taken 412 conveyance bills on different dates for going to Treasury, Telegram office, other Banks etc, The detailed statement is of which is also enclosed/or necessary action at Z. O.Meerut.
Yours faithfully
Sd/-
Branch Manager"
The aforesaid communication is of particular significance as it emanates from the petitioner Bank's own Branch Manager and records the respondent's engagement for 712 days as well as the outdoor duties performed by him. The respondent specifically relied upon the said communication in his Statement of Claim and affidavit by way of evidence, and there was no specific cross-examination of the respondent on this assertion.
The aforesaid communication, read with the duty charts, conveyance bills, Peon Book entries and the admissions of MW-1, furnished sufficient material for the learned Tribunal to conclude that the respondent had worked for the requisite period. The learned Tribunal, therefore, rightly held that the respondent had completed 240 days of service.
Though it has been urged by the petitioner Bank that the learned Tribunal erroneously relied upon photocopies of the duty charts, Peon Book and other documents, despite the Branch Manager having stated in his affidavit that the alleged certificate and other documents relied upon by the respondent were forged and unauthenticated, the said contention, by itself, does not displace the material evidence on record. The learned Tribunal specifically noted that the photocopies of the duty charts and Peon Book had not been denied by the management and that the originals remained in the custody of the petitioner Bank, which had failed to produce the relevant originals. The Tribunal was, therefore, justified in considering the said documents along with the other material on record, particularly the Bank's own communication dated 30.12.1997 recording 712 days of service and the admissions of MW1.
More importantly, the finding of 240 days was not based solely upon the disputed photocopies. The same stood corroborated by the aforesaid communication dated 30.12.1997, the conveyance bills, the Peon Book entries and the evidence of MW-1. The petitioner Bank, being in possession of the original attendance and duty records, could have produced the same to rebut the respondent's claim but failed to do so. In these circumstances, the learned Tribunal rightly assessed the evidence cumulatively and concluded that the respondent had discharged the burden of establishing 240 days of continuous service.
The contention that the respondent was engaged only for 2–3 hours a day also does not, by itself, negate the finding of 240 days. The material on record, including the Bank's own communication recording 712 days of engagement and 412 conveyance bills, establishes that the respondent was regularly utilised for various duties of the Bank over the relevant period. The learned Tribunal, therefore, rightly rejected the petitioner's attempt to characterise the respondent's engagement as merely intermittent work confined to supplying water.
Thus, on a cumulative consideration of the documentary and oral evidence, the learned Tribunal rightly held that the respondent had worked for more than 240 days in the relevant period. The said finding is based on material available on record and this Court while exercising its jurisdiction under Article 226 of the Constitution, cannot reappreciate evidence or arrive at findings of fact unless the learned Tribunal has exceeded its jurisdiction or acted perversely, which is not present in this case.
It has further been contended by the petitioner Bank that the respondent was merely a temporary/casual worker and that, except for payment towards supply of water for the work actually performed, no regular wages or salary were paid to him. It was contended that there was consequently no regular master-servant relationship between the parties.
The aforesaid contention, however, does not accord with the material on record. The communication dated 30.12.1997 issued by the Branch Manager itself records that the respondent worked at the Branch as a daily-wage Waterboy for 712 days. The same communication records his conveyance bills for visits to the Treasury, Telegram Office and other Banks. MW-1 also admitted that the bills relating to the respondent's tenure had been passed by him and included bills for water-carrier services, rickshaw charges and outdoor services. The identity certificate dated 01.08.1995 issued by the Baraut Branch further records that the respondent was working as a temporary Messenger/Waterboy on daily wages.
Thus, irrespective of the nomenclature used to describe the respondent's engagement, the material on record establishes that he was engaged by the petitioner Bank, performed duties assigned by it and was paid for the services rendered.
Though it has been contended that the respondent was neither appointed pursuant to any prescribed recruitment procedure nor against any sanctioned post, the same does not empower the petitioner to terminate the services of the respondent workman without following the provisions of Section 25F of the ID Act.
In the present case, the respondent's services were terminated on 10.10.1996. It is not the petitioner's case that, prior to such termination, the respondent was issued notice or paid notice pay and retrenchment compensation in terms of Section 25F of the Industrial Disputes Act. The learned Tribunal rightly observed that, having completed the requisite period of continuous service, the respondent could not have been removed without compliance with the mandatory requirements of Section 25F.
In view of the aforesaid, the learned Tribunal rightly found that the respondent had established the requisite period of continuous service and that his termination without compliance with Section 25F of the ID Act was illegal.
However, be that as it may, this Court cannot lose sight of the fact that mere finding of wrongful termination/discontinuation does not by itself grant a right of reinstatement or back wages to the aggrieved employee.
It is trite law that a finding of illegality in termination does not, by itself, mandate reinstatement in every case. The Hon'ble Apex Court has repeatedly held that reinstatement is not an automatic or mechanical consequence of an order of termination being held illegal and that the relief must be moulded having regard to the nature of employment, length of service and the surrounding circumstances of the case. In Allahabad Bank v. Krishan Pal Singh : (2021) 19 SCC 227, the Hon'ble Supreme Court has held that reinstatement with full back wages is not automatic in every case where termination or dismissal is found to be not in accordance with the procedure prescribed under law and that the relief can be moulded depending upon the facts and circumstances of the case. The relevant extract of the same is reproduced hereinbelow:
"8.The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23-8-2019 [Allahabad Bank v. Krishan Pal Singh, 2019 SCC OnLine SC 2061] . During the pendency of these proceedings, the respondent workman had attained age of superannuation. Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We accordingly direct payment of lump sum compensation of Rs 15 lakhs to the respondent, within a period of eight weeks from today. Failing to pay the same within the aforesaid period, the respondent is entitled for interest @ 6% p.a., till payment."
(emphasis supplied)
Similarly, the Hon'ble Supreme Court In Jagbir Singh v. Haryana State Agriculture Mktg. Board : (2009) 15 SCC 327 clarified that reinstatement with back wages is not automatic, and in appropriate cases, compensation may be granted instead depending on the facts and circumstance, relevant paragraph has been reproduced hereinunder: -
"7.It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
(emphasis supplied)
Hence, it is well crystallised that where the facts so warrant, the Court is empowered to award monetary compensation in lieu of reinstatement and back wages, where the facts so warrant, and where such relief of compensation would better serve the ends of justice.
This Court though upholds the finding of the learned Tribunal that the discontinuation of the respondent's services was illegal and unjustified, however, cannot lose sight of the fact that the respondent's services came to be terminated in the year 1996 and three decades have elapsed thereafter.
It is an admitted fact that the respondent was neither appointed after following the procedure of recruitment nor was appointed against any sanctioned post. It is also relevant to note that the respondent workman was only engaged by the bank for a period of two years and as submitted by the counsel for the petitioner bank it has paid a sum of ₹9,87,925/- till 06.04.2026 as allowance to the workman under Section 17B of the ID Act.
Accordingly, while affirming the finding of the learned Tribunal on the issue of illegality of the respondent's discontinuation from service, this Court is of the considered view that the relief granted by the learned Tribunal warrants modification.
In the opinion of this Court, considering the brief service of the respondent and that he has already been adequately compensated in terms of Section 17B of the ID Act, ends of justice will be met if the amount deposited before this Court by the petitioner, in compliance of order dated 14.07.2010, is directed to be released in favour of the respondent as lump sum compensation in lieu of reinstatement and back wages.
It is clarified that no further amount/allowance shall stand payable to the respondent workman.
Accordingly, the impugned award is modified and the petition is disposed of in the aforementioned terms. Pending application(s), if any, also stand disposed.