IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4814 of 2006 ***** 1. Saran Kshetriya Gramin Bank, Head Office-Dahiyawan, Chapra, District-Saran through Shri Lalit Mohan Tiwari, Manager, Personnel. 2. The Chairman, Saran Kshetriya Gramin Bank, Head Office-Dahiyawan, Chapra, District- Saran. …. …. Petitioners Versus 1. The Union of India through Ministry of Labour, Govt. of India, New Delhi, through its Secretary. 2. The Presiding Officer, Industrial Tribunal, Patna. 3. Shri Shatrughan Prasad Sah, S/o Late Sheo Nandan Sah, Resident of Village-Nandanpur, P.O.-Gawandari, P.S.-Taraiya, District-Saran. …. …. Respondents ----------- For the Petitioners : Mr. Ajay Kumar Sinha, Advocate For the Union of India : Dr. Maya Nand Jha, Advocate For Respondent No.3 : Mr. Kapildeo Singh-I, Advocate -------- 3. 14.1.2009. The petitioner, Saran Kshetriya Gramin Bank, which is now known as Uttar Bihar Gramin Bank. The management has challenged the award dated 29.12.2005 passed in Reference Case No.2(C) of 2003. Pointed submission has been made on behalf of the petitioners to the legality of the award in question, which are entirely legal. The first contention urged at the Bar by the learned counsel appearing on behalf of the petitioners is that there was no relationship of employer and employee between the management of the Bank and the so- called workman because he was not a workman under section 2(oo) but falls within the exception of Section 2(oo)(bb) as he was employed intermittently by the Branch on contractual basis at times on day to day payment of Rs.2.31 P to 8.52 P per day. In view of the status of the private respondent, no industrial dispute could be raised in his favour. The - 2 - second challenge to the award is that there is no categorical finding by the Tribunal that the workman in question had worked for more than 240 days in the preceding calendar year immediately before so-called retrenchment or termination under Section 25 F. In absence of a finding in this regard or a finding not being based on any evidence or otherwise being erroneous the award cannot be sustained. The third submission on behalf of the management is that even for the sake of argument, if the award is held to be valid, atleast the relief granted in favour of the workman is invalid, because the Tribunal ought not to have ordered reinstatement of the workman from 28.11.1985 in the service of the Bank and regularize his service as a subordinate staff cadre with all admissible benefits, admissible to the rank and post. The relief granted by the Tribunal would amount to conferring a status upon the workman much higher in rank and position, even though he did not possess such a relationship with the management. In support of the submissions learned counsel for the petitioners has first relied upon a Division Bench decision of this Court, which is the case of Sanjay Kumar Tiwary v. State of Bihar, 2008(2) PLJR 265. Emphasis is on paragraph 7, 10 and 11 of the decision. The Court after taking into consideration the ratio laid down by various Courts including the Hon’ble Supreme Court came to a considered view that a casual or a daily wager did not have a right to raise an industrial dispute because he was not covered by the concerned definition clause of the Industrial Disputes Act. The other decision which has been cited at the Bar is the - 3 - case of Essen Deinki v. Rajiv Kumar, (2002) 8 SCC 400. In this decision the Hon’ble Supreme Court in paragraph 15 and 16 relying on an earlier decision rendered in the case of Range Forest Officer v. S.T.Hadimani, (2002) 3 SCC 25 reiterated the position that the requirement of the status of 240 days cannot be disputed and it is for the employee concern to prove that he has in fact completed 240 days in the last preceding 12 months period. Attention of the Court has been brought to the finding reached by the Tribunal in the concluding part of paragraph 18 of the said decision. The Tribunal has only stated that from a perusal of the attendance-sheet produced between December, 1983 to February, 1985 there is reason to believe that the workman had worked for more than 240 days in a calendar year. This in the opinion of this Court is not a good enough finding in law to set aside the so-called order of termination passed against the workman. In absence of any categorical finding that the workman had worked for more than 240 days in the calendar year preceding the date of termination which is 27.11.1985, the relief granted to the workman falls foul of the law well settled in this regard. To this extent the Court is in agreement with the submission of the learned counsel for the petitioner on the point. With regard to the maintainability of the reference or raising an industrial dispute is concerned, this Court does not express any opinion on the issue except that the Division Bench judgment given in this case of Sanjay Kumar Tiwary v. State of Bihar (supra) is an answer to the proposition raised at the Bar in this regard. Their seems to be some substance even with regard to - 4 - submission of the management that the relief granted to the workman far outstretches and confers upon him the benefit much beyond what he had been availing of as a casual daily wager for which he was engaged off and on by the concerned Branch. This issue is more academic and need not be answered in view of the subsequent part of the order, which is two fold. Learned counsel representing respondent no.3, the workman, submits that there is finding rendered by the Tribunal that it was a malafide action based on which the service of the petitioner has been terminated. It was done with the object of accommodating some other person. Not only this, the petitioner has been in employment of the Bank right from the year 1981 and he had a case to continue in that capacity and also may be regularized at a subsequent stage looking at the past service. He further relies on a decision rendered in the case of Rattan Singh v. Union of India, (1997) 11 SCC 396 on the point that even a daily rated workman, who had continuously served for the requisite statutory minimum period was entitled to the benefit of Section 25 F of the Industrial Disputes Act. The Court has difficulty in accepting the submission of learned counsel for the workman because of the reasons that the Tribunal has failed to give a categorical finding that the workman had worked for more than 240 days in a calendar year preceding his so-called termination on 27.11.1985. Even according to the records the workman had only furnished a so-called attendance sheet for the period December, 1983 to February, 1985, there is no evidence with regard to the period February, 1985 till 27.11.1985. Onus or the duty is cast upon an employee to - 5 - establish that he was in employment for more than 240 days in the calendar year preceding the date of termination. If the employee has failed or the Tribunal has not been able to give a categorical finding that the 240 days of work of the private respondent relates to the calendar year preceding on date of termination then there is difficulty in accepting the award of the Tribunal in favour of the workman. The writ application is allowed. The award dated 29.12.2005 contained in Annexure-4 is set aside. Pawan/- (Ajay Kumar Tripathi, J.)