IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 9510 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 22.10.1998 in I.D.No.69 of 1997 passed by the Industrial Tribunal at Hyderabad and set aside the same as null and void and consequently direct the respondent bank to reinstate the workman Mr.G.Srinivasa Rao, sub staff at Ongole Branch in service with full back 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 Constitution of India, in the interest of justice, 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: MR C.R.SRIDHARAN, GP FOR LABOUR The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.9510 of 1999 ORDER: Aggrieved by the award of the Industrial Tribunal-I, Hyderabad, in ID.No.69 of 1997 dated 22.10.1998, the present writ petition is filed. Pursuant to a dispute raised by the petitioner Union, the Government by its order dated 10.11.1997 referred the following dispute for adjudication to the Industrial Tribunal: “Whether the action of the management of Union Bank of India, Vijayawada in terminating the services of Sri G.Srinivasa Rao, Sub-Staff without complying the provisions of Sec.25-F of the I.D.Act, 1947 is legal and justified? If not, to what relief the said workman is entitled?” Before the Industrial Tribunal, while two witnesses were examined on behalf of the workman, one witness was examined on behalf of the respondent-employer. It is the case of the petitioner before the Industrial Tribunal that the workman was terminated from service on 16.12.1992 without notice, though he has been working as a Subordinate staff from 09.05.1985 at Ongole Branch, that no disciplinary action was taken against him, that no show cause notice was issued and that termination of his services was contrary to Section 25-F (2) of the Industrial Disputes Act (for short ‘the I.D.Act’). It is the case of the workman that he had rendered continuous service and had worked for more than 240 days during the period 1989 to 1992 and had complied with the requirements of Section 25(B) (2) of the I.D.Act. The case of the respondent bank was that the workman was engaged on temporary and casual basis as and when required by the bank and that, on account of non-availability of work, he could not be continued in service after 16.12.1992 and, since there was no obligation on the part of the respondent bank to provide him work, it was not a case of termination and that the very reference was invalid. The respondent denied that the workman had rendered continuous service of 240 days in any year during the period 1989 to 1992 and contended that he worked as a casual labour only for 114 days in the year 1989, 112 days in the year 1990, 154 days in the year 1991, 122 days in the year 1992 and, as such, the question of violation of Section 25-F of the I.D.Act did not arise. It is also stated that in the year 1992, the workman did not work in October and November and had worked only for ten days which did not also satisfy the requirement of having worked for a period of 12 months preceding the date of the alleged termination. The details of the period that the workman had worked in the year 1992 were also furnished by the respondent to the Industrial Tribunal. It is the case of the respondent that the workman had worked for 12 days in the month of January, 1992, 8 days in the month of February, 18 days in the month of March, 5 days in the month of April, 17 days in the month of May, 19 days in the month of June, 18 days in the month of July, 9 days in the month of August and 10 days in the month of September, that he did not work in October and November and that he had worked only for one day in the month of December, as per the records maintained by the respondent bank. The workman Srinivas Rao examined himself as WW.1 and one attender of the respondent Bank was examined as WW.2. They both stated that Srinivas Rao was appointed in the retirement vacancy of one Sri G.Ramaiah and the promotion vacancy of one Sri Bhaskar Rao. The Tribunal noted that the workman did not mark any documents. However, on behalf of the employer, the earlier Manager of Ongole Branch, who worked from 1989 to 1993, was examined and the petty cash book statement was marked as Ex.M1. The Tribunal noted that it is only if an employee works for a period of one year and, during the period of 12 calender months preceding the date with reference to which calculation has to be made, he has actually worked under the employer for not less than 240 days, would he be entitled for protection and be held to have rendered continuous service of 240 days as contemplated under Section 25(B) (2) of the I.D.Act. The Tribunal referred to several judgments of the Supreme Court in this regard. The Tribunal held that the initial burden was on the workman to prove that he had worked for 240 days counting backwards from 16.12.1992 on which date he was alleged to have been terminated and, while the workman had stated that he worked as sub-staff in Ongole Branch of the respondent bank from the year 1989 to 1992 continuously without break, he did not adduce adequate proof that he had worked for 240 days in the 12 month period preceding his termination. The workman had deposed that he was paid wages on petty cash vouchers but for some period in the name of G.Laxminarayana, M.S.Rao, Pullarao, Chennaiah etc. The Tribunal also noted that the workman had not produced any documentary evidence in support of his contention that he worked without break or that he worked for 240 days in a calendar year of 12 months prior to 16.12.1992. The Tribunal also noted the evidence of WW.2, who denied knowledge of the reasons for termination of the services of WW.1. The Tribunal also observed that WW.2 did not depose in specific terms as to whether WW.1 worked for 240 days in any calendar year. The Tribunal noted the evidence of MW.1, the then Branch Manager, that the workman had worked only as a Casual labour being the son of the jeep driver of the respondent Bank and that, as per the register maintained by the branch office, the workman had worked only for 114 days in the year 1989, 112 days in the year 1990, 154 days in the year 1991 and 122 days in the year 1992 and that the register referred to by the workman was a petty cash statement register. MW.1 deposed that WW.1 was paid wages on daily basis at the rate of Rs.15/- to 20/- per day, that the payment was duly entered in the petty cash statement register and that whenever payment was made under petty cash vouchers, it was required to be recorded in the petty cash voucher register which had to be submitted to the Regional Office every month. He further deposed that whenever any sub-staff were absent, he used to engage the services of the workman and the Branch Manager had no power to appoint any employee but was required to inform the vacancy to the Regional Office which in turn had to inform the Central Office. He also deposed that the signature of WW.1 was not taken in the name of fictitious persons, as spoken to by him, and stated that the payment was made only to WW.1 under petty cash vouchers but not in any other manner. The representative of the workman, however, contended before the Tribunal that no weight could be placed on Ex.M1 register as it did not contain the statement relating to July, 1990, October and November, 1992 and that failure on the part of the respondent to file the cash vouchers, in spite of issuing the notice, necessitated an adverse inference being drawn and the Tribunal ought to have, therefore, accepted the evidence of WW.1 and WW.2 that WW.1 worked continuously from 1989 to 1992 without break. The Tribunal observed that the initial burden was on the workman to show that he had worked for 240 days in a calendar year for the period of 12 months counting backwards from the date of his termination. The Tribunal noted that the statement enclosed to the counter, based on Ex.M1, did not contain the details for the month of July, 1990 and also the details for the months of October and November, 1992, that even if the attendance of the workman is counted from 01.12.1991, it would come to 137 days till the date of his termination i.e., 117 days from January to December, 1992, and 20 days in December, 1991 which is far short of 240 days, that even if it was assumed that the workman worked during the months of October and November, 1992, continuously, there would be only 26 days in each month excluding Sundays, and the total period worked for two months would come to 52 days and even if these 52 days is added to 137 days as referred to above, it would come to only 189 days. The Tribunal held that the absence of the statement for the months of October and November, 1992 in Ex.M1 was, therefore, of no consequence. It further observed that merely because the petty cash vouchers were not filed, it could not be said that they have been kept back with a view to cause prejudice to the workman’s contention and that no adverse inference could be drawn for not filing the record. The Tribunal concluded that WW.1 could not prove by evidence of reliable nature that he had worked for 240 days in a calendar year of 12 month preceding the date of his termination and it is evident that he had worked intermittently as and when it was necessary. With regards the workman’s contention that he was paid wages in the name of fictitious persons, the Tribunal observed that no such plea had been taken in the claim statement and as such the contention of the workman based on the evidence of WW.2 could not be accepted, in the absence of any pleading to that effect. The Tribunal relied on Shankar Chakravarthy vs. Britannia Biscuits[1] and M/s.Eicher Woodyert Limited vs. C.Rajendra Kumar Sony[2] in this regard. The Tribunal further observed that, in any event, the mere fact that an employee works for 240 days would not result in his services being regularized. The Tribunal concluded by holding that for want of sufficient evidence on behalf of the workman, even if it was assumed that the respondent had terminated the services of the workman from 16.12.1992, it could not be said that they had violated Section 25-F of the I.D.Act and that the said Section would not apply where a workman had failed to put in 240 days of service in a calendar year preceding the date of his alleged termination. The Tribunal further observed that the claim of the workman for reinstatement was, in any event, stale, that he had approached the Labour Commissioner, on his own showing, in the year 1997 i.e., after a lapse of five years from the date of termination and, except to state that he had been making repeated representations, no other reasons were furnished for the inordinate delay. The Tribunal observed that if he had really been making representations, he would have filed copies of the representations made to the Management, and it was obvious that he had come up with this belated explanation only to cover up the delay in approaching the Labour Commissioner. An award was passed holding that the action of the respondent in terminating the services of the workman with effect from 16.12.1992 cannot be held to be unjustified and consequently he was not entitled to any relief. Heard Sri B.Nalin Kumar, learned counsel for the petitioner, and Sri C.R.Sridharan, learned counsel for the first respondent. Sri B.Nalin Kumar, learned counsel for the petitioner, would reiterate the very same submissions made on behalf of the petitioner Union before the Industrial Tribunal. Learned counsel would emphasise that the respondent had indulged in unfair labour practice of paying wages to the workman in fictitious names. Learned counsel would contend that giving artificial breaks was again an unfair labour practice, the very fact that copies of the petty cash statements for the months of October and November, 1992 were not produced would itself go to show that the respondent had deliberately withheld a portion of the petty cash register only to deny the petitioner the relief to which he was entitled to. Learned counsel would contend that the Limitation Act does not apply to the proceedings before the Industrial Tribunal and that, even in cases of delay, the Labour Court/Industrial Tribunal is entitled to mould the relief accordingly. It is well settled, as has been held in catena of judgments of the Supreme Court, in Manager, Reserve Bank of India, Bangalore v S. Mani[3]; Batala Coop. Sugar Mills Ltd v. Sowaran Singh[4]; Surendranagar District Panchayat v. Dahyabhai Amarsinh[5]; Chief Engineer (construction) v. Keshava Rao (dead) by Lrs[6] ; Range Forest Officer v. S.T.Hadimini[7] that the burden is on the workman to establish before the Labour Court/Industrial Tribunal that he had rendered 240 days of service in the 12 month period preceding his termination and that his self serving oral testimony would not suffice. As noted by the Tribunal, WW.2 has not even stated that the workman had put in more than 240 days of service in the 12 month period preceding his termination and, except the self serving oral testimony of WW.1, there is no other evidence on record to show that he had put in more than 240 days of service in the 12 month period preceding his termination. As rightly observed by the Tribunal, non-production of the petty cash statements for the months of October and November, 1992 was of little consequence since, even if the workman is held to have worked for the entire period of two months i.e., October and November, 1992, he would still not have completed 240 days of service in the 12 months period preceding his termination. As held by the Supreme Court in Shankar Chakravarthy vs. Britannia Biscuits (1 supra), no evidence can be examined in the absence of a pleading in this regard and since the petitioner Union, in its claim statement before the Labour Court, had not even pleaded that the respondent Bank had paid salary to the workman in fictitious names, any evidence let it by the workman in this regard could not be looked into. With regards the allegation of artificial breaks, it is necessary to note that it is not as if the workman was engaged continuously for a period of 89 days with a break of a day and then re-engaged. The attendance particulars referred to hereinabove would show that he was engaged intermittently and, in a few months, for less than 10 days also. This plea of artificial breaks would also necessitate rejection. In Certiorari proceedings, this Court does not sit in appeal over the findings of fact recorded by the Industrial Tribunal nor would this Court substitute its views for that of the Industrial Tribunal/Labour Court. Save perversity or a finding based on no evidence or a patent error of law apparent on the face of the record, interference by this Court with orders of Industrial Tribunals/Labour Courts would not be justified. The award of the Labour Court cannot be said to suffer from any such infirmity necessitating interference by this Court under Article 226 of the Constitution of India. The writ petition fails and is, accordingly, dismissed. No costs. _______________________ (RAMESH RANGANATHAN,J) 28th February, 2008 v v To 1. 2 CCs to 2. 2 CD copies. [1] 1979(70) FLR 70 page 85 [2] 1993 LLR page 524 [3] (2005) 5 SCC 100 [4] (2005) 8 SCC 481 [5] (2005) 8 SCC 750 [6] (2005) 11 SCC 229 [7] (2002) 3 SCC 25