IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 10294 of 2004(A) -------------------------- ID.59/2000 of INDUSTRIAL TRIBUNAL, KOLLAM .................... PETITIONER: ------------ THE REGIONAL MANAGER, CENTRAL BANK OF INDIA, GOPAL BUILDING, THYVILA ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.V.V.SIDHARTHAN SRI.M.L.ABRAHAM RESPONDENTS: ------------- 1. P. AYYAPPAN, MANNARVELIL ARANMULA P.O., PATHANAMTHITTA, KERALA STATE. 2. THE INDUSTRIAL TRIBUNAL, KOLLAM. BY ADV. SRI.H.B.SHENOY FOR R1 SRI.B.ASHOK SHENOY FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 10294/2004. ------------------------------------------------------------------- EXT.P1 TRUE COPY OF CLAIM STATEMENT IN I.D.59/2000. EXT.P2 WRITTEN STATEMENT IN I.D.59/2000. EXT.P3 AWARD DT. 6-8-2003 IN I.D.NO. 59/2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 10294 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 29th May, 2008. J U D G M E N T The petitioner is a Bank and the management in I.D.No. 59/2000 before the Industrial Tribunal, Kollam. They challenge Ext. P3 award passed by the Tribunal in that I.D. The issue referred for adjudication was: “Whether the action of the management of Central Bank of India in denying employment to Sri. P. Ayyappan, part-time sweeper is justified? If not, to what relief the workman is entitled and from which date?” After appreciation of the evidence adduced by both sides, the Tribunal came to the conclusion that the workman has proved that he had worked for 240 days or more during a continuous period of one year and that he had been denied employment without reasonable cause. Accordingly, by the award, the management was directed to reinstate the workman in service with all attendant benefits. That award is under challenge in this writ petition. 2. The main contention of the learned counsel for the petitioner is that the workman has not discharged his burden of proving that he had worked for 240 days or more in a continuous period of on year. According to the learned counsel for the petitioner, in view of the Supreme Court decisions in Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147, Rajasthan State Ganganagar S. Mills Ltd., v. State of Rajasthan and another, (2004) 8 SCC 161, Municipal Corporation, Faridabad v. Siri Niwas, (2004) 8 SCC 195, Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1, H.U.D.A. v. Jagmal Singh, 2006-III LLJ 152 and Himanshu Kumar Vidyarthi and others v. State of Bihar and others, AIR 1997 SC 3657, it was the initial burden of the workman to prove that he had worked 240 days or more in a continuous period of one year and in this case, the workman has not discharged that burden. According to learned W.P.C. No. 10294/2004. -: 2 :- counsel, the Tribunal proceeded as if it was the burden of the management to prove that the workman had not worked for 240 days and because they have not proved so, a conclusion has been arrived at that the workman had worked for 240 days or more. On that contention, counsel for the petitioner would argue that the findings of the Tribunal in the award are perverse and liable to be set aside. 3. On the other hand, the learned counsel for the workman would contend that the workman had gone to the box and deposed on oath that he had actually worked for 240 days in a continuous period of one year and while cross examining the management's witness, the workman had proved his case that he had worked for 240 days or more in a continuous period of one year. He would further submit that the workman is a poor part-time sweeper of a Bank. A Class IV workman would not be in possession of details of his work with the Bank. On the other hand, the Bank is in possession of records relating to the employment details of all its employees. Therefore, the employment details of the workman can be proved only by production of documents in the possession of the management. The workman had filed a petition for causing production of the relevant documents by the management and the Tribunal had, in the award, categorically found that there is no explanation for the non-production of the registers, which alone can prove the case of both the workman and the management. The very non-production of the registers in spite of an application for production of the documents would go a long way for proving the workman's case, is the submission made by the learned counsel for the workman. He, therefore, submits that the workman had, in fact, effectively discharged his burden in proving that he had worked 240 days or more in a continuous period of one year. He, therefore, would argue for sustaining the impugned award. W.P.C. No. 10294/2004. -: 3 :- 4. I have considered the rival contentions in detail. 5. Nobody can quarrel with the proposition of law that the initial burden of proving that the workman had worked for 240 days or more in a continuous period of one year is on the workman. That position is amply settled by the decisions referred to by the learned counsel for the Bank himself. But the question is what is the evidence sufficient for proving the same? Is it simply the evidence led by the workman alone or would it include the answers elicited by the workman during cross examination of the management witness and other attendant facts inferable from other evidence as well? I am of opinion that the evidence in the case would include every evidence including deposition of the workman and answers elicited by the workman in cross examination of the management witness. Simply because the workman had not produced any documentary evidence in support of his case, that does not mean that he has not discharged his burden of proving that he had worked for 240 days or more in a continuous period of one year. If the evidence taken as a whole would be sufficient to prove his case, that would mean that the workman had discharged his burden of proving that he had worked for 240 days or more in a continuous period of one year. For deciding that issue, what is to be looked into is not the workman's evidence alone but also the answers elicited in cross examination of the management witnesses as also other facts inferable from the evidence as a whole, as I stated earlier. 6. In this case, the workman involved is a poor barely literate part-time sweeper of a Bank. It can be taken judicial notice of the fact that usually such a workman would not be in possession of documentary evidence to prove his case. On the other hand, it cannot be disputed for a moment that the Bank, which has employed the W.P.C. No. 10294/2004. -: 4 :- workman, would be in possession of all documents necessary to prove the employment details of the workman. 7. In this case, it is not disputed by the management that the workman was actually employed as a part-time sweeper in the Bank. Their contention in the written statement was that the workman was employed only as a casual labourer for the first time in April, 1988. However, the Tribunal, on the basis of Ext. M2 bank account, came to the conclusion that the workman was actually paid from the Bank from December, 1982 onwards. Therefore, at the outset, I must state that the evidence of the management has to be viewed in the light of this wrong statement in the written statement, which has been disproved by the evidence. In any event, that would definitely go to show that the workman was actually employed by the Bank as a Part- time Sweeper. 8. The next question is as to whether the workman had worked for 240 days or more in an year. The contention of the Bank was that he had worked only for 111 days. But, for proving the case of the workman, the workman had filed a petition calling upon the management to produce certain records, such as registers of retrenched and temporary employees, which are required to be maintained under paragraph 493 of the Sasthri Award in respect of Aranmula branch, P & L Miscellaneous Daily Wages Paid Account maintained at Aranmula branch and payment vouchers thereof for the period from 10-10-1990 to 27-10-1993, debit slips/vouchers in respect of the said account for the above period, SB Account No. 3901 maintained in the name of the workman and five circulars dated 13-3- 1990, 18-9-1990, 18-12-1991, 12-3-1991 and 20-9-1993 issued by the Bank and responses thereto received from Aranmula branch. But, the management produced only 18 vouchers, copy of particulars of SB W.P.C. No. 10294/2004. -: 5 :- Account for the period from December 1982 to October, 1993 and copies of three circulars issued to the branches without the responses received thereto. The Tribunal categorically found in the award that there is no explanation at all for the non-production of the balance registers which alone can prove the case pleaded by both the workman and the management. Further, MW1 admitted that salary was paid to the workman through P & L Miscellaneous Daily Wages Paid Register after signing vouchers. While, in the box also, the witness agreed to produce the relevant portion of the said register, which was not produced. Again, he stated on oath that he has not verified Ext. M1 series of vouchers with the P & L Miscellaneous Daily Wages Paid Register. According to the witness, such verification was done in the Aranmula branch and there is certificate to that effect, which he agreed to produce before the Tribunal. But, that certificate was also not produced. He also deposed that payment was effected to the workman sometimes through vouchers and sometimes by crediting in Ext. M2 account. But, the entire portion of the bank account and vouchers were not produced for effective verification before the Tribunal. Again, he admitted that Ext. M1 series of vouchers can be said to be complete only after verifying the same with Miscellaneous Daily Wages Paid Register. But, the witness could not produce any evidence of such verification. 9. The management did not care to produce any evidence to show that any other person had worked as part-time sweeper in the branch during the disputed period other than the workman. Admittedly, the workman was being employed as a part-time sweeper for years together. It cannot be disputed by anybody that a branch of a Bank would require sweeping every day. The evidence before the Tribunal was that the workman was the only sweeper working in the W.P.C. No. 10294/2004. -: 6 :- Bank. That evidence would go a long way to show that the workman had worked for more than 240 days in an year because he had been in the Bank for years together and he was sweeping on every working day. I am of opinion that all these evidence together would constitute sufficient discharge of the initial burden of proof required of the workman in the case. There is absolutely no contra-evidence. The Bank has not even produced the relevant documents and registers, which would categorically disprove the case of the workman or prove that of the management. If the registers and documents were in favour of the management, then the first thing the management would have done is to produce those documents, which admittedly they have not. According to me, that would conclusively clinch the issue in favour of the workman. 10. Further, in this case, the issue has been decided by the Tribunal on the basis of appreciation of evidence. The Tribunal has given elaborate reasons for coming to the conclusion, which it has reached. I do not find any perversity in the findings arrived at by the Tribunal. It is settled law that this Court cannot interfere with finding of facts in an award in an industrial dispute unless the findings are demonstrably perverse. I cannot, by any stretch of imagination, come to the conclusion that the findings are in any way perverse. Therefore, I do not find any merit in the challenge against Ext. P3 award. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/