IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10446 of 2002 ANIL KUMAR SINHA, Son of Shri Yogendra Prasad Sinha, Resident of village Bilouti, P.S. Shahpur, District Bhojpur … Petitioner Versus 1. THE PRESIDING OFFICER,CENTRAL GOVT.INDUSTRIAL TRIBUNAL cum Labour Court No.1, Dhanbad 2. The Union of India through Secretary, Ministry of Labour, New Delhi 3. The Sub-divisional Inspector of Post Office, West Arrah Sub-division, P.O. Arrah, District Bhojpur 4. The Sub Post Master, Shahpurpatti, P.O. Shahpur, District Bhojpur … Respondents. For the Petitioner : Mr. A.B.Ojha, Sr.Adv. For the respondents: Addl. Standing Counsel, Central Govt. P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA ----------- Mihir Kr.Jha,J. Heard counsel for the petitioner. This writ application has been filed against an award by the Industrial Tribunal, Dhanbad whereby and whereunder the reference made to the Tribunal under section 10 of the Industrial Disputes Act (hereinafter referred to as „the Act‟) has been answered against the workman and in favour of the management. The Central Government by a notification dated 30.11.1998 had referred the following dispute for adjudication by the Tribunal: “Whether the action of the management of Postal Department in 2 terminating the services of Sri Anil Kumar Sinha is legal and justified? If not, what relief the workman is entitled to.” The Tribunal after going into the respective pleadings as also evidence led by the parties has held that the termination of service of writ application workman did not suffer from any infirmity and in this respect the specific case of violation of 25F was also found to be not proved at the instance of the writ petitioner. Mr. A.B.Ojha, learned counsel appearing on behalf of the petitioner, has submitted that the award of the Tribunal cannot be sustained for three reasons:- He had firstly submitted that the Tribunal had committed a procedural infirmity in rejecting the evidence of the writ petitioner workman. Mr. Ojha in this context would refer to the observation/ finding of the Tribunal in paragraph no.4 which reads as follows: “During the proceedings it appears that though certain documents were filed from the side of the concerned workman also but the same 3 were not considered necessary for being marked as exhibits … … .” On the basis of this sentence in the award Mr. Ojha proceeds to build up an argument that the Tribunal by refusing to admit certain document in evidence had committed error apparent on the face of record. It is difficult for this Court to accept this part of the submission for two reasons. First of all in the entire writ petition not a word has been said as to on which day what document and at what stage were filed by the petitioner which got rejected by the order of the Tribunal of adducing evidence. In absence of specific details this Court cannot disturb much less set aside any finding of fact recorded in the award. That apart the construction of the sentence quoted above read with next sentence would go to show that though the writ petitioner had produced certain documents but when the stage of adducing evidence came he did not find it relevant to prove them for its being marked as exhibits. It is not the case of the petitioner that both the parties in course of proceedings 4 had already agreed that whatever documents would be filed by them, will automatically be admitted in evidence and marked exhibits, rather from the reading of the evidence on record it would appear that certain documentary evidence were marked only on identification and on being proved in terms of the Evidence Act. That being so, this Court would not find any merit in the aforesaid submission of the learned counsel for the petitioner. He then contended that the Tribunal by rejecting the evidentiary value of an attendance register showing continuous working on the post of Runner in his Post Office, has committed a grave illegality. He had expanded his submission to contend that the Tribunal failed to make the distinction between the nature of engagement of a temporary employee as against appointment of a permanent appointment. He would submit that it was not the case of the writ petitioner, the workman, that he was permanently absorbed so as to necessitate the observance of all mandatory procedure prescribed for removal of a permanent 5 employee in terms of Article 311 of the Constitution of India rather the case of workman petitioner was confined that mandatory requirement of section 25F was not followed in his termination. This Court in this context was also taken to certain findings in the impugned order by placing reliance on a document, Annexure 2, dated 25.1.1991 for establishing that the engagement of the writ petitioner was made on temporary basis under the order of the Sub-divisional Inspector (West), Arrah and thus his service could have been dispensed with by an order that too after following the procedure laid down under section 25F of the Act. This aspect of the matter, though would not be clinching the issue but then as the same has been pressed by the learned counsel for the petitioner, must be examined in the light of the findings in the impugned order. A bare perusal of the impugned order and the connected materials on record would itself go to show that the petitioner for proving his working for 240 days in a calendar year so as to attract the provision 6 of section 25F of the Act had relied on an attendance register prepared and maintained by his father who was the in-charge of that Post Office and had by departing all past practices and contrary to the rules of Postal Department of the Government of India had created an entry in attendance register for marking presence on the duty of his own son, the petitioner, engaged and working as „Runner‟. There is a clear finding of the Tribunal that no other runner had been allowed to mark the attendance in the attendance register and it is also finding of the Tribunal that it was the father of the petitioner who had entered the name of his son, the writ petitioner in a bid to help his cause. Thus, the resultant adverse inference drawn by the Tribunal against the said attendance register and its entry as with regard to presence and working of the writ petitioner cannot be held to be illegal much less perverse in the light of specific finding that the very engagement of the writ petitioner as a „Runner‟ in the Post Office of his father was a fraudulent act conferring no right of a workman on him. 7 Learned counsel for the petitioner has lastly submitted that the finding arrived by the Tribunal with regard to the writ petitioner not completing 240 continuous days of service in a calendar year is wholly perverse inasmuch as the same has been arrived at without taking into consideration the certificates establishing his working for a period of more than 240 days and in fact 319 days in all in a calendar year. This Court would however find that the Tribunal has not only addressed itself but in fact has decided the said question in the light of evidence on record. This Court in fact would find no error in such approach of the Tribunal because the onus to prove the fact of working continuously for 240 days or more in a calendar year lies on the workman. Thus, the rejection of a wholly unfounded submission on behalf of the writ petitioner before the Tribunal that it was for the employer management to prove that that the workman had not worked continuously for 240 days cannot be held to be illegal. In fact it is quite elementary that a fact 8 is to be proved by one who asserts it and thus when the writ petitioner had complained that his termination after completing service for more than 240 days was in violation of mandatory requirement under section 25F of the Act, it was squarely for him to prove this fact of his working for a minimum period of 240 days in a calendar year. The moment a workman would come out to take a plea of being removed from service without following the mandate of section 25F it is he who will have to prove that he had worked for 240 days and it is not for the management to prove otherwise, that the workman had not worked for 240 days. Judged in this background when the evidence on record is examined it would be found that the writ petitioner having sat silently for seven years chose to come out with his case by using some certificate of the year 1997, showing that he had worked in the year 1991 for a period of more than 240 days. The veracity and correctness of these certificates were gone into by the Tribunal and found to be wholly unreliable. They have also been considered from the view point of 9 other attending circumstances including the fictitious entry made in an attendance register wherein the presence of the petitioner has been recorded by none else but his father for only 240 days. In fact it would be quite useful to quote the finding of the Tribunal on this crucial issue, which reads as follows: “ … … … For the present it is clear that as per Attendance Register the concerned workman worked only till 4.3.91 i.e. for a total period of 30 days and further that in the concerned Post Office there were other workman also discharging the similar nature of job. Therefore, in view of all the aforesaid consideration even if it is taken for a moment that there was nothing irregular as far as the engagement of the concerned workman was concerned, at least this much is clear that it stands not established that the concerned workman worked for a period of 240 days in one calendar year, irrespective of the nature of work whether permanent, perennial or temporary. Besides the above certain curious and glaring circumstances 10 that engagement of the aspect relating to the engagement of the concerned workman can also be not ignored or over-lacked as the same bear much significance so far as the genuineness of the claim of the concerned workman is concerned. Upon the instruction of his superior for managing the work of officiating runner, the father of the concerned workman preferred to engage or select his own son and in the order book he maintained his name also which as per the management is not the practice and nowhere in the order book the name of any other working in casual basis is mentioned. Shri Jogendra Prasad Sinha, the workman‟s father in his enthusiasm to establish and make out presentable claim for regular appointment of his sown, wrote down the name of his son in the Attendance Register in his own handwriting and started marking his attendance. In this context it is worth-mentioning that all other entries in the Attendance Register are in the writing of some other person and it is only the name of the concerned workman which is written therein in the handwriting of Jogendra Pd. Sinha, workman‟s father. It is further not worthy that w.e.f. 4.3.91 as he was 11 relieved from his duty at the concerned Post Office, Sri Sinha could not lay his land on the Attendance Register and most probably that is why there is an attendance marked after 4.3.91 because in the meantime on that date itself Parsuram Singh, a new Sub-Postmaster assumed the charge. As it has already been noticed above, the said Parsuram Singh has not certified to the effect that even after 4.3.91 also or till 3.12.91 the concerned workman continued to perform his duties as before. The submission made on behalf of the management, in view of aforesaid circumstances or the conduct of the outgoing Sub- Postmaster, cannot be brushed aside that the father was as much concerned and anxious to boost up the service prospect of his son that he did several things quite contrary to established rules and norms and the procedure prescribed. It is not that a father cannot engage a son in the some establishment where he works, but at the same time it is necessary that the said engagement should be just and fair and in conformity with rules, norms and procedure prescribed. Here in the instant case the father of the concerned 12 workman had proceeded in such curious and strange manner which quite apparently gives rise to suspicion so far as authenticity or genuineness of the claim of the concerned workman is concerned. However, for the sake of argument, even if it is accepted that there was nothing wrong with initial engagement of the concerned workman on the strength of which he worked continuously uptil 4.3.91 as per attendance Register then it is reiterated that there is nothing on the basis of which it can be reasonably inferred that the concerned workman completed the working of more than 240 days in 12 calendar months so as to confer upon him the right of permanency of his service.” If that be the shape of things and consideration of material on record by the Tribunal, can it be said that such findings that the petitioner had not completed 240 days of continuous service is perverse? It has been held both by the Apex Court and this Court times without number, that the finding of fact recorded by a Tribunal under an award cannot be set aside unless they are 13 shown to be totally perverse. This Court in fact would find that the Tribunal had also rightly held that the reference itself was wholly belated and stale and there was no explanation whatsoever for intervening period of nearly seven years in between the alleged termination to the date of reference and as such, the petitioner‟s case otherwise was fit to be rejected at the threshold. Be that as it may, this Court is wholly satisfied that the judgment of the Tribunal does not suffer from any infirmity and accordingly, this writ application is dismissed. (Mihir Kumar Jha,J.) Patna High Court The 24thApril, 2009 A.F.R./Surendra.