IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8141 of 2001 1. Bhojpur Rohtas Gramin Bank, Head Office, South Ramna Road, Arrah, District-Bhojpur(Bihar). 2. The Chairman, Bhojpur Rohtas Gramin Bank, South Ramna Road, Arrah, District-Bhojpur (Bihar) ………………………………… Petitioner Versus 1. Union of India, Ministry of Labour, New Delhi, through Secretary. 2. The Presiding Officer, Industrial Tribunal, Patna. 3. The General Secretary, Bhojpur Rohtas Gramin Bank Employment Association C/o Bhojpur Rohtas Gramin Bank, Mangal Pandey Road, Arrah, District-Bhojpur. 4. Dinesh Kumar, son of Sri Buchan Prasad, C/o Sri Samdeo Prasad, Village & P.O.-Unwas, District-Buxar. …………………………….. Respondents For the Petitioner : Sri R.R. Upadhyay, Advocate Sri Devi Das Gupta, Advocate. For the Workman Respondent : Sri Devi Kant Jha, Advocate For the Central Government : Sri J.P. Karn, Additional Standing Council, Sr. Advocate PRESENT HON‟BLE JUSTICE MIHIR KUMAR JHA ----------- Mihir Kr. Jha, J. Heard counsel for the petitioners and counsel appearing on behalf of respondent no.4, as also counsel for the Union of India. The petitioner, Bhojpur Rohtas Gramin Bank (hereinafter referred to as the Bank) in this writ application has assailed the award of the Industrial Tribunal dated 9th April, 2001 in Reference No. 4( C ) of 1999 which arise out of a notification of the Government of India dated 5.5.1999 in exercise of its power under section 10(1)(d) of the Industrial Disputes Act (hereinafter referred to as the Act) recording the following 2 Industrial Dispute between the management of the Bank and its workmen (Respondent no.4):- “Whether Shri Dinesh Kumar has worked for more than 240 days with the management of Bhojpur Rohtas Gramin Bank ? If so whether the action of the management of Bhojpur Rohtas Gramin Bank in terminating his services w.e.f. 17.2.1959 is justified ? If not to what relief the workman is entitled to ?” The Tribunal after perusing the written statement of both the sides as also apprising the oral and documentary evidence led by the parties has arrived at a finding that the workman, respondent no.4, had worked more than 240 days from 19.3.1988 to 16.2.1989 as a casual worker as Darban (guard) in Mohania and Rupur Branches of the Bank and having thus arrived at the aforementioned finding it was also found by the Tribunal that the mandatory requirement of Section 25-F of the Industrial Disputes Act was not complied before terminating the services of the workman and hence, it had directed for reinstatement with back wages from 24.6.1997 till the date of reinstatement. Counsel for the Bank had initially 3 submitted that the finding of continuous working of the respondent-workman for a period of 240 days was contrary to the weight of the evidence on record and in fact the Tribunal had committed an error in accepting two certificates of the Officers of the Bank as clinching evidence with regard to continuous working of the workman. In fact, counsel for the Bank went to contend that those two certificates were procured and obtained by the workman in collusion with the Officers of the Bank and the said Officers of the Bank were departmentally proceeded for their misconduct of giving false certificates and were also punished. This Court, having noted that no such plea was taken by the Bank in its written statement had afforded an opportunity to the Bank to place on record as to how the two Officers had committed misconduct in giving certificates of working to the workman and what punishment was inflicted upon them. The order of the Court in this regard dated 2.2.2009 was as follows:- “List this case on 10th February, 2009 at the top of the list, on which date counsel 4 appearing on behalf of the petitioners would produce written statement filed before the court below as also would explain to this Court as to what action has been taken against the officer who is said to have issued incorrect certificate leading to award in question. The Bank will be also obliged to explain as to on what basis it has come out with its case that the workmen in question had worked only for 172 days for the period from Mach, 1988 to February, 1989.” Pursuant to the aforementioned order a supplementary affidavit has been filed by the petitioner Bank wherein not a word has been said with regard to basis of the Bank that the workman, respondent no. 4 had worked for 172 days only. This Court, in fact, on perusal of the document on record brought by the Bank itself in the main writ application would find that there are unimpeachable evidence by way of payment voucher slips passed and sanctioned by the controlling officer of the concerned branch of the Bank showing that the respondent-workman was paid his weekly wages for the period in question, i.e, March, 1988 to February, 1989. In presence of these payment of wages slip, Annexures-2 series to the writ 5 application, two certificates dated 24.12.1988 (Ext.W/7) and 12.5.1997 (Ext.W/6)it would be difficult for this Court to interfere with the finding of fact of continuous working of the Respondent workman, recorded by the Tribunal. It may be noted that in the certificate dated 24.12.1988 the Manager of the Branch had certified that the workman in the year 1988 had worked continuously and regularly for the period from 19.3.1988 to 24.12.1988 and his performance was satisfactory. This certificate of working of the Respondent workman is further subsequently complemented by yet another certificate of Branch Manager that the workman had worked in the Bank from 30.12.1988 to 16.2.1989 as a casual employee, and both of such certificates stand further corroborated from the documents filed by the Bank itself in this writ application, namely weekly payment vouchers as contained in Annexure-2 series. From all these documents which have been considered at length by the Tribunal for recording a finding of fact as with regard to 6 continuous working of the Respondent Workman for more than 240 days in a calendar, it is well established that the Respondent workman was entitled for protection under Section 25F of the Act. Such being a conclusive finding of fact based on consideration of documentary evidence this Court would hardly find any occasion to interfere with the finding of fact as with regard to workman having completed the period of service for more than 240 days in a calendar year. It has to be noted that even the plea of the Bank as raised before this Court that such certificate were collusive does not get supported from the conduct of the Bank which though had initiated a departmental proceeding against such officers of the Bank, but had left them without any punishment under the relevant Discipline and Conduct Rules. Punishment of censure inflicted on Anup Kumar Srivastava, Branch Manger by order dated 13.3.2004 (Annexure-4/B), would hardly justify the stand of the Bank that the certificate issued by him was collusive in nature. Neither the charge sheet nor any 7 finding of the enquiry report nor even any material was brought before this Court which could have led to even a prima-facie satisfaction that the certificate issued by the Bank Manager were either collusive in nature or was contrary to the records of the Bank. As a matter of fact, the Bank has also relied on its communication dated 17.7.2003 made to Sri Nagendra Nath Ojha, Senior Manager (Annexure-4/A) to show that the concerned Senior Manager of the Bank was punished for engaging the respondent no.4 as a casual employee contrary to the instruction of the Bank. From the order of the Bank dated 17.7.2003 it would appear that Sri Ojha was ordered only to be more vigilant and careful in his duty so that the same error could not be repeated by him in future. The two documents dated 11.7.2003 and 13.3.2004 therefore claimed to be an order of punishment by themselves are proof of the fact that the Bank had acted against its two Branch Manager Officers not only after passing of the impugned award of the Tribunal but infact during pendency of this writ application 8 for putting and developing some sort of its defence and had come out with those alleged orders of punishment against its Branch Manager Officers merely to justify its claim with regard to procedural error in engaging the respondent no.4 in casual service of the Bank. Thus, on the material on record no two views is possible as with regard to solitary issue in question, i.e, completion of employment for a period of 240 days by the workman in a calendar year. In the background of what has been held above, this Court would find no reason to interfere with the following concluded finding of fact as recorded by the Labour Tribunal in paragraph 12 of award:- “However as we have seen there are over-whelming evidence and materials to prove that he worked more than 240 days from 19.3.1988 to 16.2.1989 as a casual worker at Darwan-Mohania Branch and Ruppur Branch of the Bank. As we have seen the Branch Manager of Darwan Mohania Branch granted a certificate to the workman on 24.12.1988 to the effect that he worked in that Branch from 19.3.1988 to 24.12.1988 regularly (Ext.W/7). The Branch Manager of Ruppur Branch has also given a certificate dt. 12.3.1997 to the effect that 9 Dinesh Kumar had worked from 30.12.1988 to 16.2.1989 as a casual sweeper. Even the witness of the Management (M.W.2) has admitted in his cross examination that the records which he had sent to the Head office showed that Sri Dinesh Kumar had worked continuously for more than 240 days in a calendar year. The workman W.W.1 in his evidence has supported his case that he worked as a full time worker from 9.30 A.M. to 5.30 P.M. on every working days and that he performed the duties which a regular Messanger or Sweeper performs. The Management has not adduced any evidence to controvert such claim of the workman. Thus, I find that the concerned workman Dinesh Kumar worked as a full time casual worker for a period more than 240 days in Darwan Mohania Branch and Ruppur Branch of the Bank in 12 Calendar months preceding his retrenchment.” Thus, both the documentary and oral evidence as discussed by the Tribunal along with its aforesaid finding cannot be said to be perverse or based on any error of record so as to interfered by this Court in exercise of its power under Article 226 of the Constitution. Once this aspect of the matter becomes clear, there would be no difficulty in rejecting the remaining part of the submission of counsel for the Bank with regard to the direction for 10 reinstatement and payment of back wages to the workman. In this respect it has to be noted that though the workman was terminated from service of the Bank some time in the month of February, 1989, the Tribunal has awarded back wages only with effect from 24.6.1997 on examining the material on record including the delay in seeking reference to the Industrial Tribunal. The date of 24.6.1997 has been correctly chosen by the Tribunal as it was the date on which demand by raising industrial dispute was made by the workman. Thus, even that part of the submission of counsel for the Bank that the order for payment of back wages was passed by the Tribunal without any basis and in a mechanical manner, does not appear to be correct in view of the reasonings recorded in the impugned award. The reliance placed by counsel for the Bank on the judgment of the Apex Court in the case of State of Madhya Pradesh & Ors. Vs. Yogesh Chandra Dubey & Ors reported in 2006(8) S.C.C. 67 as also the subsequent judgment of the Apex Court in the case of 11 Talbar Cooperative Society Ltd. Vs. Shushil Kumar, reported in AIR 2008 (9) SCC 486 also seems to be misconceived. These judgment do not lay down that in no event the Labour Court or Industrial Tribunal can direct for reinstatement rather they only put a caveat on exercise of such power in a balanced manner. It has to be noted that the present case was not a case of loss of faith of the Bank in the respondent-workman on account of any misconduct which could have weighed upon the Tribunal in denying reinstatement. Again the over emphasised submission of counsel for the Bank that the workman in question was engaged against the Bank’s policy is also based on mere ipse-dixit, in as much as, no evidence was led by the Bank before the Tribunal which could have shown any sort of blanket ban on the engagement of casual staff. The material on record including oral evidence went to show that the Bank was in requirement of manual staff for doing not only regular work of cleaning the Branch of the Bank, but for also doing the allied work of messenger, peon and 12 guard etc. and the services of the Respondent workman was utilized during his period of engagement towards those work. If the Bank therefore was having practice of getting its regular work done by engaging casual employee instead of permanent employee, it is definitely bound to comply the statutory duty of discharging its obligation under the Industrial Disputes Act. The Bank could not have adopted the policy of hire and fire even in respect of a casual employee without following the mandate of law including section 25-F of the Act. The last submission of counsel for the Bank that section 25 B and section 25 F of the Act could not have been made applicable in the case of casual/daily wages workman has to be noticed only for its being rejected. This aspect of the matter, in fact, stands settled in the judgment of the Apex Court in the case of Ratan Singh Vs. Union of India & Anr, reported in (1997) 11 S.C.C. 396 wherein it has been held that safeguard under sections 25 B and section 25 F of the Act would be applicable to even daily rated 13 workman who had continuously served statutory period of 240 days in a calendar year. The wide inclusive definition of workman under section 2(s) of the Act would definitely include even a temporary or casual or daily rated employee. This aspect of the matter, in fact, also stands settled as was held by the Division Bench of this Court in the case of The Superintending Engineer, Rastriya Uchh Path Anhal, Muzaffarpur Vs. P.W.D. Workers’ Union and Ors, reported in 1995 (1) PLJR 303 wherein the Division Bench of this Court has held as follows:- “It is to be noted that like any other Act the Industrial Disputes Act also provides a conceptual framework within which entities are created and their mutual rights and obligations are determined in order to achieve the legislative object. Thus, the Industrial Disputes Act also has its own concept of „employer‟ and „workman‟ as defined in sections 2 (g) and 2 (s) respectively and determines their inter se rights and obligations. One of the obligations imposed upon the employer in terms of section 25F is that he must part company with such of workmen who have been in service for not less than one year only on the fulfillment of certain conditions failing which the relationship of employer and workman would be deemed not to 14 have been severed and the workman would in the eye of law continue to be in service and would consequently be entitled to his wages etc. All that is required by the Act is that a person should qualify as workman within the meaning of the Act and should satisfy the conditions to attract the protection of section 25F of the Act. Any consideration regarding regular or irregular, legal or illegal appointments or appointments made following the procedures under the rules is wholly foreign to the definition of workman in section 2 (s) of the Act. Now that the definition of workman has been so enlarged by the decision of the Supreme Court, in Hussaini Bhai‟s case (AIR 1978 S.C. 1410), in our opinion it is futile to urge that an employee engaged on daily wages is not a workman within the meaning of the Act. This question has come before the Courts on countless occasions and it is now established beyond dispute that for the purpose of Industrial Dispute Act a daily wage earner is as much a workman as an employee receiving his wages on a monthly basis in a time scale of pay.” Thus, on an over all consideration of the materials on record, this Court would find no flaw in the award of the Industrial Tribunal and consequently, this writ application being devoid of any merit must be and is hereby dismissed. The workman, respondent no.4, who 15 had been deprived from getting the benefit of reinstatement with back wages as directed by the Tribunal on account of interim order passed by this Court dated 13.7.2001, and thus he must be reinstated forthwith with back wages from 24.6.1997 till the date of reinstatement specially when even his wages during pendency of stay of award by this Court in terms of Section 17 B of the Act was not paid by the Bank to respondent no.4. There would be, however, no order as to cost. (Mihir Kumar Jha, J.) Patna High Court Dated the 18th September 2009 Abhay Kumar/A.F.R.