IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 10295 of 2004(A) -------------------------- ID.58/2000 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. SMT.M.G.SUJATHA, MANICKATHU HOUSE, EZHUMATTUR P.O., THIRUVALLA, PATHANAMTHITTA. 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 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 10295/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CLAIM STATEMENT. P2. COPY OF THE WRITTEN STATEMENT. P3. COPY OF THE APPLICATION FILED BY THE WORKMAN IN ID.NO.58/00. P4. COPY OF THE AWARD IN ID.NO.58/00 OF INDUSTRIAL TRIBUNAL, ALAPPUZHA. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.10295 of 2004 ================== Dated this the 2nd day of June, 2008 J U D G M E N T The petitioner bank, which is the management in I.D.No.58/2000 before the Industrial Tribunal, Kollam, challenges Ext.P4 award passed by the Tribunal in that I.D., in this writ petition. 2. The issue referred for adjudication was: “Whether the action of the management of Central Bank of India in relation to their Ezhumattoor branch in terminating the services of Smt.M.G.Sujatha, Safai Karmachari wef 27.10.1993 is justified ? If not, what relief the employee is entitled” 3. After appreciation of the evidence adduced before the Tribunal by both sides as a whole, the Tribunal came to the finding that the workman, who is the 1st respondent herein, had in fact worked for 240 days or more for a continuous period of 12 months in a year and therefore, she could not have been retrenched from service, without complying with the procedure prescribed in the Industrial Disputes Act. Consequently, the Tribunal directed the petitioner management to reinstate 1st respondent in service with continuity of service and all attendant benefits. That award is under challenge in this writ petition. 4. The main contention of the petitioner is that the w.p.c.10295/04 2 workman had not discharged her initial burden of proving that she had in fact worked for 240 days or more within a continuous period of 12 months. In support of his contention that it is the burden of proof is on the workman to initially prove that the workman had 240 days of service within a continuous period of 12 months, the petitioner's counsel relies on the following decisions of the Supreme Court:- 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]. The petitioner also relies on my judgment in W.P(C).No.10294/2004. 5. On the other hand, the learned counsel for the workman would contend that the workman had done everything possible in her capacity to prove her case and has discharged her burden in proving the fact that she had actually worked for w.p.c.10295/04 3 240 days or more in a continuous period of 12 months. 6. I have considered the rival contentions in detail. 7. The legal position that it is the initial burden of the workman to prove that she had worked for 240 days or more in a continuous period of 12 months is beyond the realm of dispute, in so far as the same is covered by the decisions relied on by the petitioner. But the question is whether the workman in this case has discharged her burden in proving the same. Of course, the workman did not have any documentary evidence to prove the same. It is only to be expected. The workman is a barely literate Part Time Sweeper. Unless the management had issued any documents to her, she would not be naturally in a position to produce any documentary evidence in support of her case. On the other hand, being a nationalised bank, the petitioner bank would be having every kind of documentary evidence to prove all the details of the workman's service with the Bank. In such circumstances, the petitioner had done what she possibly could do. She gave oral evidence in support of her case and also elicited answers from the witness of the management which would probabilise her case. She filed an application before the w.p.c.10295/04 4 Tribunal for a direction to the bank to produce documents, which, according to her, would prove her case. The bank only produced some documents for some period. The Tribunal drew an adverse inference on account of this. In paragraph 6 of the award the Tribunal held thus: “6. The witness examined on the side of the management as MW1 has admitted that the workman was paid salary in P&L. Miscellaneous, Daily wages Paid Account ('the Account' for short) and all such payments are included in this account. But the management has not produced the entire account for the period in question. The workman has specifically called upon the management to produce the relevant records such as register of retrenched and temporary employees account for the period from 10.10.1970 to 27.9.1993 debit slips/vouchers for the said period in respect of the said account, SB account maintained in the name of the workman and circulars issued by the management and responses received from Ezhumattoor branch where the workman was employed to establish her case. But the management has produced only 9 vouchers for the years 1991-92 copy of SB Account for some period and P&L miscellaneous account for the period from 9.4.1992 to 29.10.1993 only. There is no explanation from the management for the non-production of the balance records which are necessary for the proper and effective disposal of this case. In the absence of any reason for the non-production of the material records it can only be concluded that the management did not produce those records purposely because if produced that would prove against the management's case. Admittedly the workman is not in possession of any records to prove that she was employed more than 240 days within a period of 12 months.” In paragraph 7 of the award, the Tribunal held thus: “7. According to MW1 the management is not keeping the register showing service particulars of the workman which is against the relevant provisions in the Sasthri Award. As per para.493 of the Sasthri Award the management is bound to maintain register of retrenched and temporary employees recording the details of temporary workmen employed by them. But the management has not produced such a register. MW1 has admitted that he has not verified Ext.M1 series vouchers with P&L miscellaneous daily wages paid w.p.c.10295/04 5 account which alone can clearly prove the total number of days worked by the workman. Further according to MW1, Ext.M5-series circulars have been issued to branches from the Regional office for sending particulars of part time karmachari to the Regional Office. But the management has not produced such details regarding the workman. MW1 has admitted that according to him the workman has not worked 240 days on the basis of Ext.M1 series vouchers only. Para.493 of the Sasthri Award states about the appointment and service conditions of temporary employees and as per that a register should be maintained in respect of temporary staff with all particulars of employees. As per para.495 of the award when a person is appointed letter should be given stating the period of appointment and salary and as per para.516, SB of the employee is to be maintained. Further as per para.312, the attendance of the employees is to be recorded in the Muster Roll. The management failed to produce the relevant and material registers with reference to the workman without any explanation. The action of the management has adversely affected the claim of the workman and it can be considered as a tactic to defeat the claim of the workman. It is also noticeable that there is no evidence on the said of the management to show that any other person has worked as safai karmachari in the particular branch of the bank during the disputed period other than the workman. In these circumstances and in the absence of material documents, the case pleaded by the workman that she was employed by the management for more than 240 days during the period of 12 months from 10.10.1990 to 27.10.1993 has to be accepted in the interest of justice.” 8. I am of opinion that, the above would be sufficient discharge of burden of proof by the workman. As I had held in W.P(C).No.10294/2004 the evidence in this regard is not confined to the deposition and documentary evidence of the workman alone. The workman can certainly prove a fact in issue by either cross examining witnesses of the management or by calling upon the management to produce documents. The workman in this case had done both the same in this case, on the w.p.c.10295/04 6 basis of which, the Tribunal had come to the conclusion that the workman had proved her case. Then it was for the management to prove that the case of the workman is not correct which they were not able to. I do not find anything perversity in the findings of the Tribunal in this regard. 9. In addition, the Tribunal had specifically come to the finding that admittedly the workman was the only the Sweeper available in the bank and that no other Sweeper was employed during the relevant period. The management being a branch of a bank, it cannot be disputed that the bank premises would require sweeping on every working day. Admittedly, the workman was employed from 1990 to 1993. Of course, the management would say that the workman worked only for 20 days in 1990, 33 days in 1991 and 82 days in 1992. Since the workman was the only Sweeper available in the bank in the absence of any contra evidence produced by the Bank, the natural inference would be that she was sweeping the bank premises on every working day because there was no other sweeper employed by the bank, admittedly. That itself is sufficient to hold that the workman was actually working in the bank through out the above said period of w.p.c.10295/04 7 four years. Therefore, I am satisfied that the workman had sufficiently proved her case that she has worked for a period of 240 days or more in a continuous period of 12 months. As such, I do not find any perversity whatsoever in the findings entered by the Tribunal. 10. Therefore, I do not find anything wrong in the Tribunal granting the workman the relief of reinstatement in service with continuity of service. However, the learned counsel appearing for the petitioner submits that admittedly, even according to the workman, her services were terminated on 27.10.1993 and the the industrial dispute was raised only in 1998. This is not disputed by the counsel for the workman. That being so, I am not satisfied that the workman should be given the benefit of full back wages. Therefore, backwages would be restricted to 50 per cent. Subject to the above modification, Ext.P4 award is confirmed. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.10295/04 8