IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 9551 of 1999 Between: The Vice President Union Bank Employees Union C/o union Bank of India, Near Vijaya Talkies, Karl Marx Road, Vijayawada, Andhra Pradesh. ..... PETITIONER AND 1 The Regional Manager, Union Bank of India, Near Vijaya Talkies, Karl Marx Road, Vijayawada, Andhra Pradesh. 2 The Industrial Tribunal-I, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a WRIT OF CERTIORARI or other appropriate order or direction in the nature of writ calling for the records resulting in the award dated 26-10-1998 in I.D.No. 68 of 1997 passed by the Industrial Tribunal I at Hyderabad and set aside the same as null void and consequently direct the respondent bank to reinstate the workman Mr.Swarna Sreenu, Sweeper of Karlapalem Branch in service with full bank wages and all other consequential benefits and also absorb him in a permanent post while declaring the action of the respondent bank in terminating his services as arbitrary, illegal, discriminatory violation of principle of natural justice and in violation of Articles 14, 19,21 and 300 A of the Constitution of India, in the interest of justice and pass necessary order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.B.NALIN KUMAR Counsel for the Respondents : 1.GP FOR LABOUR 2.MR.C.R.SRIDHARAN The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.9551 of 1999 ORDER: Aggrieved by the award of the Industrial Tribunal-I, Hyderabad in I.D.No.68 of 1997 dated 26.10.1998, the Union Bank Employees Union has invoked the jurisdiction of this Court, under Article 226 of the Constitution of India. The Government, by order dated 11.11.1997, referred the following dispute under Section 10(1) (d) of the Industrial Disputes Act (for short, ‘the I.D.Act’) to the Tribunal for adjudication:- “Whether the action of the management of Union Bank of India, Vijayawada in terminating the services of Sh.Swarna Sreenu, Ex-part-time Sweeper without complying provisions of Section 25-F of I.D.Act, 1947 is legal and justified? If not, to what relief the said workman is entitled?” Before the Tribunal, the workman examined himself as WW.1 and one Sri Gorantla Sivaramaiah as WW.2. On behalf of the respondent- employer, MWs.1 to 3 were examined. While Exs.W1 to W3 were marked on behalf of the workman, the employer marked Exs.M1 to M3. The Tribunal, on a detailed analysis of the evidence on record, came to the conclusion that, even if the evidence on behalf of the employer were to be ignored, the workman had failed to prove that he worked for 240 days prior to his termination and that the very documents relied on by him in Exs.W1 and W2 showed that he did not work for 240 days in a calender year of 12 months preceding the date of his termination. So holding, the Tribunal held that Section 25-F of the I.D.Act was not attracted and it is only a case of engagement and disengagement depending upon the need whether the workman was engaged as a casual labour or otherwise and that it was the case of discharge simplicitor and did not amount to retrenchment as defined under Section 2(oo) of the I.D.Act and, hence, the question of violation of Section 25-F of the I.D.Act does not arise. The reference was answered by the Tribunal holding that the action of the respondent in terminating the services of the workman WW.1- Sreenu with effect from 01.11.1987 was justified and that he was not entitled to any relief under the reference. The condition precedent for termination of the services of the workman, under Section 25-F of the I.D.Act, is one month’s notice in writing or wages in lieu thereof and retrenchment compensation equivalent to fifteen days average pay. However, Section 25-F of the I.D.Act would apply only where a workman has been in continuous service for not less than one year under any employer. Under Section 25 (B) (2) of the I.D.Act, it is only if a workman, during the 12 months period preceding the date with reference to which the calculation has to be made, has actually worked under the employer for not less than 240 days, can he be said to have rendered continuous service of one year attracting Section 25-F of the I.D.Act. On a detailed analysis of the evidence on record, the Tribunal has recorded a finding of fact that the workman did not work for 240 days in the 12 month period preceding his termination. Sri B.Nalin Kumar, learned counsel for the petitioner, would, however, contend that since the respondent-employer had engaged the services of the very same workman in fictitious names, it could not be said that the workman did not put in 240 days and that the period of service rendered by such fictitious persons should also be included in the period of service rendered by the workman for computing the period of 240 days in the 12 months period preceding his termination. Learned counsel would contend that the onus of proof is on the employer to establish that the workman had put in less than 240 days in the 12 month period preceding his termination and that the burden cannot be shifted on to the workman. Learned counsel would place reliance on Post Master General and others, Kolkata v. Tutu Das (Dutta)[1]. Learned counsel would further contend that, since it is not in dispute that the workman was engaged to work on daily wages in a permanent post, his services were required to be regularized in the said post instead of his services being exploited on his being engaged on daily wages. Learned counsel would submit that such an action on the part of the employer amounted to unfair labour practice. It is well settled law, as has been held in a catena of judgments of the Supreme Court in Range Forest Officer v. S.T.Hadimani[2]; Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan[3]; Municipal Corpn., Faridabad v. Siri Niwas[4] and M.P.Electricity Board v. Hariram[5], that the onus to establish that the workman had worked for 240 days or more in the 12 month period preceding his termination is on the workman himself and that it is only if this initial burden is discharged, that the burden then shifts on to the employer. In the case on hand, the Tribunal, on an analysis of the evidence on record, has held that the workman had failed to discharge his burden. This Court, in Certiorari proceedings under Article 226 of the Constitution of India, would not sit in appeal over the findings of fact recorded by the Tribunal nor would it substitute its views for that of the Tribunal. Save perversity or a finding based on no evidence or an error apparent on the face of the record, interference by this Court with orders of Industrial Tribunal would not be justified. It is not the case of the petitioner before this Court that the findings recorded by the Tribunal are perverse or are based on no evidence. On the plea of the respondent-employer having engaged the services of the petitioner in fictitious names, there is no evidence on record to establish such a plea. Similar would be the position in so far as the plea of unfair labour practice is concerned. This Court would not take up itself the task of making a roving enquiry as to whether the respondent Bank had, or had not, engaged the services of the workman in fictitious names. These are all matters of evidence which ought to have been let in before the Tribunal and, since there is no evidence in support of such a plea, the Tribunal had rightly come to the conclusion that the workman had not discharged the onus of establishing that he had worked for 240 days prior to his termination. On the question whether the workman was engaged in a permanent post, it is necessary to note that this question, as also the question of regularization of the services of the workman, were not the subject matters of the reference before the Tribunal. It is well settled that the Tribunal, a creature of the Industrial Disputes Act, is bound by the reference made to it by the Government under Section 10(1) (d) of the I.D.Act and that it cannot go into questions which are beyond the scope of reference and any such adventure would be in excess of its jurisdiction. I n Tutu Das (supra), the Supreme Court held that mere completion of 240 days did not entitle an employee to claim regularization, but Section 25-F of the I.D.Act would only be attracted in a case where retrenchment has been effected without complying with the provisions of the Industrial Disputes Act. In the present case, the Tribunal has itself recorded a finding of fact that the workman did not put in 240 days in the 12 month period preceding his termination and that he had failed to discharge the burden cast on him to establish this fact and since it came to the conclusion that the workman had not put in 240 days service in the 12 month preceding his termination, the Tribunal rightly held that the ingredients of Section 25-F of the I.D.Act were not attracted. Since the only question which necessitated examination under the order of reference of the Government was whether the services of the workman were terminated contrary to Section 25-F of the I.D.Act, the award of the Industrial Tribunal does not necessitate interference in proceedings under Article 226 of the Constitution of India. The writ petition fails and is, accordingly, dismissed. _______________________ (RAMESH RANGANATHAN,J) Dt.19.03.2008 v v To 1 The Regional Manager, Union Bank of India, Near Vijaya Talkies, Karl Marx Road, Vijayawada, Andhra Pradesh. 2 The Industrial Tribunal-I, Hyderabad. 3. Two CCs to Government Pleader for Labour. 4. Two CD copies. [1] (2007) 5 SCC 317 [2] (2002) 3 SCC 25 [3] (2004) 8 SCC 161 [4] (2004) 8 SCC 195 [5] (2004) 8 SCC 246