IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26-04-2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.10727 of 2006 The Senior Manager (P) Union Bank of India Regional Office, 139, Broadway Chennai-600 108. .. Petitioner. Versus 1.The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai. 2. Smt.T.Parvathy .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the first respondent in I.D.No.119 of 2003 and quash its award, dated 19.12.2005, in so far as grant of relief of reinstatement, 50% backwages and other attendant benefits and consequential benefits to the second respondent. For Petitioner : Mr.V.Karthic for M/s.T.S.Gopalan and Co. For Respondents : Mr.K.M.Ramesh (R2) O R D E R 1. This writ petition has been filed challenging the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 19.12.2005, made in I.D.No.119 of 2003. The first respondent had passed the award, dated 19.12.2005, granting the relief of reinstatement of the second respondent in service, with 50% of the backwages and other attendant benefits. 2. It has been stated that the petitioner is a Nationalised bank having its head office at Mumbai. The petitioner Bank has fixed number of posts for each category in all the branch offices. Appointments are made only against the sanctioned posts. There are clear and specific https://hcservices.ecourts.gov.in/hcservices/ guidelines for making the appointments, provided by the Bank's board, in consultation with the Ministry of Finance, Government of India. Reservation policies of the Government of India are also followed, including reservation of certain posts for Ex-servicemen. The minimum and maximum age and the educational qualifications required for the appointments are also prescribed. The selected candidates are allowed to join in the service of the Bank after proper medical examination and on verification of the documents and the antecedents of the candidates. The candidates would be kept under probation for a period of six months in the sub-staff cadre and they would be confirmed only on obtaining a satisfactory confidential report assessing their work performance and conduct. 3. It has been further stated that whenever a vacancy arises in in the sub-staff cadre post or in the post of a part-time Sweeper, in any branch of the Bank, the regional office having the jurisdiction over the said branch would select and appoint the candidates sponsored by the District Employment Exchange. However, at that time the concerned branch manager might engage a local person to attend to the cleaning of the premises, on part-time basis, to meet the exigencies of the Bank. Such an appointment would be purely on a temporary basis. The wages paid to such persons would be debited to the expenditure account. Since, such appointments are not authorised it would not be binding on the Bank. 4. It has been further stated that, on 4.9.1999, one Sumathi, part-time sweeper, attached to the Adyar Branch, was posted to the Besant Nagar Branch. The second respondent has been engaged only for the cleaning of the toilets. The engagement of the second respondent continued even after Sumathi had been posted in the Besant Nagar Branch, on 4.9.1999. On 4.3.2003, one Selvaraj, Daftary of the Madras main branch had been posted as a sub-staff at the Besant Nagar Branch. The second respondent was last engaged in the said branch in the month of November, 2001. Her engagement was neither regular nor continuous in nature. It was only an adhoc arrangement, till a regular part-time sweeper was appointed. While so, the second respondent had raised an industrial dispute regarding the cessation of her engagement during the month of June, 2002. On the failure of the conciliation proceedings the matter had been adjudicated by the first respondent Industrial Tribunal-cum-Labour Court, in I.D.No.113 of 2003. The second respondent had claimed that she had joined the service of the Besant Nagar Branch of the petitioner Bank, on 30.10.1998, as a casual sub-staff, on daily wages. Her services had been terminated, on 29.1.2002, contrary to the provisions of Section 25F of the Industrial Disputes Act, 1947. She had rendered continuous service, for more than 240 days, in each of the calendar years, prior to her termination. Therefore, she had prayed that she should be reinstated in service, with backwages, continuity of service and other attendant benefits. 5. It has been further stated that the petitioner Bank had filed a counter statement contending that the posts in the sub-staff category https://hcservices.ecourts.gov.in/hcservices/ could be filled up only by calling for names from the concerned Employment Exchange. However, when a new branch is opened it could have engaged a local person to attend to the cleaning of the premises, without the knowledge of the original office. Such engagement of persons would not bind the Bank. The second respondent might have been engaged by the branch manager of the Besant Nagar Branch of the Bank. That by itself cannot be deemed to be a regular employment provided to the second respondent. There is no violation of the provisions of Section 25F of the Industrial Disputes Act, 1947, in not engaging the services of the second respondent, as alleged by her. Therefore, the industrial dispute raised by the second respondent is liable to be dismissed, in limine. 6. The learned counsel appearing on behalf of the petitioner Bank had submitted that the engagement of the second respondent, by the petitioner Bank, would not amount to a regular employment, as claimed by the second respondent. The first respondent Industrial Tribunal-cum- Labour Court ought to have accepted the plea of the petitioner Bank that the adhoc engagement of the second respondent, by the Branch Manager of the Union Bank of India, Besant Nagar Branch, Chennai, without the knowledge of the Regional Office, would not result in employer-employee relationship between the petitioner Bank and the second respondent. It had also been submitted that the first respondent had failed to appreciate the fact that the employment of the second respondent in the petitioner's services, even if it is in the sub-staff category should only be through the Employment Exchange. It cannot be merely on the ground that a person had rendered 240 days of service, prior to his or her cessation of employment. 7. The learned counsel had also submitted that a temporary employee or a daily rated employee has no right of employment. Cessation of such employment would not attract Section 2 (oo) of the Industrial Disputes Act, 1947, requiring compliance of Section 25F of the said Act. Since, the second respondent had been engaged only on an adhoc basis, as a part-time employee, she had no vested right to be appointed, absorbed or regularized in service. 8. It had also been submitted that the adverse inference drawn by the first respondent against the petitioner Bank cannot be sustained in the eye of law. Even according to the second respondent she had worked only for 216 days in a period of 12 calendar months prior to the cessation of her employment. The first respondent had failed to appreciate that, in case of daily rated employees Saturdays and Sundays cannot be notionally included for calculating 240 days of continuous service. Further, the award of the first respondent, granting 50% backwages to the second respondent, cannot be held to be correct, as the second respondent had not really been in the employment of the petitioner. The finding of the first respondent that the petitioner had not produced the muster rolls for the period, from 1998 to 2002, in spite of its order, dated 1.7.2004, in I.A.No.47 of 2004, in I.D.No.119 of 2003, is incorrect. Therefore, the adverse inference drawn against https://hcservices.ecourts.gov.in/hcservices/ the petitioner Bank is improper and invalid. The petitioner Bank had produced the muster roll attendance sheets for the period, from 6.5.1999 to 30.9.2001. The second respondent's name had not been found in the attendance sheets for the said period. 9. It had been further stated that the burden of proving that the second respondent had worked for 240 days in a continuous period of 12 calendar months is upon the second respondent. Even though the second respondent had not proved her claims that she had been employed with the petitioner for a continuous period of 240 days, the first respondent Industrial Tribunal-cum-Labour Court had drawn adverse inference against the petitioner, while holding that the second respondent is entitled to be reinstated in service, with continuity of service and with all attendant benefits, with half the backwages. 10. It had been further submitted that the decision of the Supreme Court in Workmen of American Express International Banking Corporation Vs. American Express International Banking Corporation (1985(2) LLN 817) relied on by the first respondent had arisen, in respect of the Delhi Shops and Establishments Act, 1954, and therefore, it would not be applicable to the facts and circumstances of the present case. Unless the employee is entitled to wages for Saturdays and for other holidays, either in accordance with the existing provisions of law or due to a contractual obligation arising out of on an agreement of service, such holidays cannot be counted in computing the minimum of 240 days, for being considered to be in regular service. Since, the second respondent had only been engaged, intermittently, on a daily wage basis the second respondent cannot claim reinstatement in service, with continuity of service, backwages and other attendant benefits. 11. The learned counsel appearing on behalf of the petitioner Bank had relied on the following decisions in support of his contentions. 11.1. In National Fertilizers Ltd and others Vs. Somvir Singh (2006(2) LLJ 1113), it has been held as follows: "Regularisation, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise." 11.2 In M.P.Housing Board and another Vs. Manoj Shrivastava (2006 (2) LLN 84), it had been held as follows: "8. A person with a view to obtain the status of a `permanent employee' must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned https://hcservices.ecourts.gov.in/hcservices/ by the statutory authority or his appointment was made upon following the statutory law operating in the field....... 20. The appointment made by a person who has no authority therefor would be void. A fortiori an appointment made in violation of the mandatory provisions of the statute or constitutional obligation shall also be void. If no appointment could be made in terms of the statute, such appointment being not within the purview of the provisions of the Act would be void, he cannot be brought within the cadre of permanent employees. The definitions of `permanent employee' and `temporary employee' as contained in the rules must, thus, be construed having regard to the object and purport sought to be achieved by the Act." 11.3 In M.P.State Agro Industries Development Corporation Limited and another Vs. Shri.S.C.Pandey (2006(2) LLN 89), it has been held as follows: "It is also a well settled position that only because a temporary employee has completed 240 days of work, he would not be regularized in service." 11.4 In Union of India and others Vs. Elango (2005(1) LLJ 343), it had been held as follows: "48. In view of the above discussion and the settled principles laid down by the Apex Court, we are to conclude that we are unable to sustain the impugned order of the learned Single Judge, mainly on the reason that there are no sanctioned posts in existence to which the respondents/employees could be said to have been appointed and mere completion of 240 days works does not, under any law, merit right to regularisation. We shall state, at the risk of repetition, that in this case, initial entry itself is unauthorised and is not against any sanctioned post or vacancy. Hence, the question of regularising the respondents, on such a non-existing post or vacancy, would never survive for consideration." 11.5 In Krishna Bagya Jala Nigam Ltd. V. A.K.Mishra (2006(4) LLN 208), it had been held as follows: "3...... In 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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........" 11.6. In N.S.Ravichandran Vs. The Management of Thantai Periyar Transport Corporation and others (2003(1) LLJ 1015), it had been held as follows: "When an employee claims protection under Section 25-F of the Act by pleading that he had worked for 240 days, the burden is clearly on the workman, and unless he discharged the burden, he cannot expect to have his case for protection under Section 25-F of the Act accepted. Merely asserting the claim does not shift the burden to the Management. It may be that in cases where all the circumstances indicate that the person had worked and the records are entirely with the employer, the Court may as has been held in the case of H.P.Singh (1986(1) L.L.N. 127) draw the inference that the person had worked. But a mere assertion by itself is far from is far from sufficient to cast the burden on the employer." 11.7 In Workmen V. A.E.International Banking Corporation (1985(2) LLN 817), it had been held as follows: "5.... The expression which we are required to construe is "actually worked under the employer."This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or men, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, Standing Orders, etc." 11.8 In Uttaranchal Forest Hospital trust V. Dinesh Kumar (2008- I-LLJ 565), it had been held as follows: "7. The basic difference between a person who is engaged on a part-time basis for one hour or few hours and one who is engaged as a daily wager on regular basis has not been kept in view either by the Labour Court or by the High Court. The documents filed clearly establish that the claim of having worked more than 240 days is clearly belied...... 9. In the aforesaid position, the inevitable conclusion https://hcservices.ecourts.gov.in/hcservices/ is that the Labour Court and the High Court were nor justified in directing the reinstatement with partial backwages." 11.9 In Bajaj Auto Ltd. V. Ashok Dayanoba Dhunel and another (2006(1) LLN 952), it had been held as follows: "9. The above observations were also referred to in the case of M/s.Essen Deinki V. Raji Kumar reported in 2002(4) L.L.N. 1176 and it has been held, inter alia, that the requirement of the statute of 240 days cannot be disputed and it is for the employee concerned to prove that he has in fact completed 240 days in the last preceding 12 months' period. The onus of proving the completion of 240 days of work is thus shifted to the workman." 11.10. In Balmer Lawrie and Co. Ltd. V. 1st Industrial Tribunal of W.Bengal (2007-II-LLJ 81 Cal), it had been held as follows: "In my view, the respondent Tribunal was in error law in taking into account the unpaid Sundays and Holidays at the time calculating actual working days of the respondent N.3 in a year. According to me in order to count the number of days "actually worked under the employer", in addition those days when the workman worked with hammer, sickle or pen, Sundays and Holidays during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing order etc. are to be taken into account. Since the respondent Tribunal took into account the Sundays and Holidays (both paid and un-paid) in counting the continuous service of the respondent No.3, the same cannot be sustained in law." 11.11 In Ram Gopal Vs. Presiding Officer, Industrial Tribunal- cum-Labour Court-I, Faridabad and others (2010-II-L.L.J.-395), it had been held as follows: "A daily wager cannot include Sundays and other holidays for reckoning 240 days required to be completed, under Section 25-F(2) of Industrial Disputes Act, 1947." 12. The learned counsel had relied on the decision of the Supreme Court, reported in Employers Management of Central P & D Inst. Ltd. Vs. Union of India and another (2005(1) LLJ 552), to state that it is not always mandatory for the Courts of law to order reinstatement for violation of Section 25F of the Industrial Disputes Act, 1947, especially, when it could be substituted for good reasons, by awarding compensation. https://hcservices.ecourts.gov.in/hcservices/ 13. The learned counsel appearing on behalf of the second respondent had submitted that the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 19.12.2005, made in I.D.No.119 of 2003, is correct and valid in the eye of law. The first respondent had arrived at its findings based on the evidence available on record and on the basis that adverse inference could be drawn against the petitioner Bank for non production of certain documents, including the muster rolls for the period, from 1998 to 2002, in spite of its order, dated 1.7.2004, in I.A.No.47 of 2004, in I.D.No.119 of 2003. 14. The non employment of the second respondent, by the petitioner, is contrary to the provisions of the Industrial Disputes Act, 1947. Even though the second respondent had been described by the petitioner as a daily wage employee, she had been paid on monthly basis. The second respondent had been employed in the Besant Nagar Branch of the Union Bank of India and she had been in service, continuously, without any break, for more than three years, from 30.10.1998, when she had joined in service, as a casual sub staff, on daily wages. While so, the petitioner had terminated the second respondent from service, illegally, on 29.1.2002. The petitioner had violated the mandatory provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947. Therefore, the petitioner Bank is liable to reinstate the second respondent in service, with continuity of service, backwages and other attendant benefits. It had also been submitted that the Labour Court was right in drawing adverse inference against the petitioner Bank, for non production of the relevant records sought for by the second respondent, by way of the interlocutory application, dated 1.7.2004, made in I.A.No.47 of 2004, in I.D.No.119 of 2003 15. Once the second respondent had made out a prima facie case it is for the petitioner Bank to have disproved the claims made by the second respondent, by producing sufficient evidence. Since, the petitioner Bank had failed to establish its claim that the second respondent had not been employed in the service of the petitioner bank, continuously, for more than 240 days, as required under the relevant provisions of law, for being regularized in service, the claims made by the second respondent had been rightly accepted by the first respondent in passing the impugned award, dated 19.12.2005, made in I.D.No.119 of 2003. 16. The learned counsel appearing for the second respondent had relied on the following decisions in support of his contentions: 1) R.M.Yelatii Vs. The Assistant Executive Engineer (2006 (1) SCC 106) 2) Workmen of American Express International Banking Corporation Vs. Management of American Express International https://hcservices.ecourts.gov.in/hcservices/ Banking Corporation (1985(4) SCC 71) 3) Union of India and others Vs. N.Hargopal and others (1987 (3) SCC 308) 4) Vijaya Bank Workers' Union rep. By its Deputy General Secretary Vs. The Presiding Officer, the Central Government Industrial Tribunal-cum-Labour Court and another (MANU/TN/0557/2010) 5) Union of India and others Vs. Miss Pritilata Nanda (AIR 2010 (SC 2821) 6) Maharashtra State Road Transport Corporation and another Vs. Casteribe Rajya P.Karmachari Sanghatana (2009(8) SCC 556) 7) Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohatak (Haryana) (CDJ 2010 SC 223) 8) Director, Fisheries Terminal Division Vs. BhikubhaiMeghajibhai Chavda (2010(1) SCC 47) 9) Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana) (2010(5) SCC 497) 10) Harjinder Singh Vs. Punjab State Warehousing Corporation (2010(3) SCC 192) 17. At this stage of the hearing of the writ petition the learned counsel appearing on behalf of the petitioner Bank had submitted that it would suffice if the findings of the first respondent Industrial Tribunal-cum-Labour Court, in the impugned award, dated 19.12.2005, in I.D.No.119 of 2003, in so far as it relates to the issue of non production of the relevant documents by the petitioner, as directed by the first respondent, by its order, dated 1.7.2004, made in I.A.No.47 of 2004, in I.D.No.119 of 2003, and the consequent adverse inference drawn by the first respondent, with regard to the number of days the second respondent had been in the service in the Besant Nagar Branch of the Union Bank of India, is set aside and if the matter is remitted back to the first respondent for giving its findings, afresh, on the said issue. The learned counsel had stated that the adverse inference drawn by the first respondent against the petitioner, in computing the number of days worked by the second respondent, based on the decision reported, in Workmen of American Express International Banking Corporation Vs. American Express International Banking Corporation (1985(2) LLN 817), is unsustainable, in view of the subsequent decisions of the Supreme Court, as well as of the various High Courts. 18. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the second respondent, and on a perusal of the records available and in view of the decisions cited supra, this Court is of the considered view that it https://hcservices.ecourts.gov.in/hcservices/ would be appropriate to set aside the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 19.12.2005, made in I.D. No.119 of 2003, in so far as it relates to the finding that the petitioner Bank had failed to produce the relevant records, as directed by the order, dated 1.7.2004, made in I.A.No.47 of 2004, in I.D.No.119 of 2003, and the consequent drawing of adverse inference by the first respondent against the petitioner Bank, with regard to the number of days worked by the second respondent. 19. The first respondent had relied on the decision reported in Workmen of American Express International Banking Corporation Vs. American Express International Banking Corporation (1985(2) LLN 817), which had arisen with regard to the issues arising in respect of the Delhi shops and Establishments Act, 1954. From the subsequent decisions of the various Courts of law it is noted that Saturdays and Sundays and other holidays could not be counted as working days, in favour of the employee, while computing the number of days worked by the employee, when a dispute arises in respect of such an issue. In such a case the onus of proof would be on the person making the claim to show by sufficient evidence that he had worked on such days or that he was eligible to claim salary for such days in accordance with the contract of service or under the relevant provisions of