Karnataka High Court
Management Of State Bank Of India vs V.M. Mahapurush on 6 September, 1994
Equivalent citations: ILR1994KAR2728
Bench: S.B. Majmudar, Chief Justice
JUDGMENT
Hari Nath Tilhari, J
1. This Appeal has been filed by the Management of the State Bank of India, under Section 4 of the Karnataka High Court Act, challenging the Judgment and Order dated 19-7-1994, passed by the learned single Judge of this Court whereby the learned single Judge has been pleased to dismiss the Writ Petition filed by the present appellant-Bank.
2. We have heard the learned. Counsel for the appellant and before recording our reasons for dismissing the Appeal, a few facts need to be mentioned.
3. The petitioner-appellant by Writ Petition under Article 226 assailed the order awarding unpaid wages to the extent of Rs. 8,000/- to the respondent passed by the Industrial Tribunal dated 30-5-1994, vide Annexure-A to the Writ Petition. The respondent No. 1 according to the facts appearing from record was working as temporary watchman with the appellant from 1977. Thereafter on 4-3-86 his services were terminated. The respondent thereafter approached the Assistant Labour Commissioner, who initiated conciliation proceedings. Thereafter, the opposite parties agreed to employ the respondent temporarily and the respondent was given employment again. While serving as watchman he was carrying the duties of a regular watchman and according to the applicant, the permanent/ regular watchman were paid double of the wages that were being paid to the applicant The respondent before the Labour Court on the principle of law equal pay for equal work alleged and claimed that he is entitled to get the wages that used to be ordinarily paid to the regular watchman as the duties and responsibilities of both were same.
4. That the present appellant who was the opposite party before the Labour Court and petitioner in the Writ Petition denied the workman's claim and then the claim was preferred before the Labour Court. Considering the facts of the case, the Labour Court came to the conclusion - "Therefore, I would like to state that the applicant has been given lesser salary than the permanent watchman. Though the applicant was carrying the same duties as permanent watchman, the opposite party has not given any cogent and definite details as to why they were paying lesser salary." Therefore, making a reference to the principles laid down by their Lordships of the Supreme Court, Labour Court took the view that the applicant before it i.e., the present respondent No. 1 was entitled to the salary, of a permanent watchman. The Labour Court also observed that the applicant i.e., the present respondent has stated in his application that he was to get a sum of Rs. 8,000/-, but in evidence he prayed for Rs. 30,000/-. Finally the Labour Court held the workman i.e., respondent No. 1 to be entitled to Rs. 8,000/- and issued a direction to the effect that the applicant is entitled to claim from opposite parties Rs. 8,000/- and that opposite parties should pay Rs. 8,000/- to the applicant, with interest at 6% per annum, on the said amount. From this order, the petitioner-Bank, i.e., the appellant filed the Writ Petition under Article 226 of the Constitution of India and it was alleged that there was no valid reason justifying the finding of Rs. 8,000/- i.e., finding to the effect that the workman has been entitled to the difference sum of Rs. 8,000/-. The learned single Judge, looked to the matter and considered as well as found that Justice has been done to the parties and there is no need to re-open the case.
5. Having felt aggrieved by the order of the learned single Judge, the State Bank of India has presented this Special Appeal under Section 4 of the Karnataka High Court Act. The same contention has been raised and it has been contended that the learned single Judge of this Court failed to exercise the jurisdiction vested in this Court under Article 226 of the Constitution, by not interfering with the finding of the Labour Court to the effect that the workman has been entitled to a difference of Rs. 8,000/- though that finding is based on no evidence. We have applied our mind to the contention of the learned. Counsel for the appellant. I may quote the observations of the Labour Court. The material observation in the order of the Presiding Officer of the Labour Court reads as under:-
"Now, it has to be decided as to the quantum of amount that the applicant is entitled to. In order to decide the quantum, the applicant has not given clear and reliable evidence. He has not stated the amount of salary that was taken by the permanent watchman and he has not given any document in this regard. But the applicant in para 3 of his application has stated that he has to get Rs. 8,000/- but in his evidence he has prayed for Rs. 30,000/- and in his written arguments it is prayed that he has to get Rs. 13,543/- but the basis on which the calculation has been made has not been given. These statements are contradictory. Therefore, taking the amount mentioned in the application, it is held that the applicant is entitled to Rs. 8,000/-. Therefore, issue Nos. 1 and 2 are decided in favour of the applicant. He is entitled to get Rs. 8,000/-."
6. The learned single Judge, while dealing with this aspect of the matter has given his reasons for rejecting the contention of the learned Counsel for the Writ petitioner i.e., the present appellant. After having referred to the arguments of the learned Counsel for the Bank i.e., present appellant, the learned single Judge has observed as under :-
"As far as this is concerned, to my mind the authority was completely handicapped because of the fact that the Bank itself did not produce the relevant records. Had the Bank done so, the argument advanced by the learned Counsel would have been valid. The matter has obviously gone before the lower Court and to my mind, therefore, on the facts of the present record it would not be permissible to find fault with the order in question. Moreover, at this point of time, the interest of justice would require that there should be no interference with the order."
7. As regards the submission of the learned Counsel that the finding is based on no evidence, we have perused the record and we find that the amount of Rs. 8,000/- which has been awarded and directed to be paid as difference, in fact satisfy the Justice between the parties, particularly in a case where one of the parties to the case conceals material evidence from the Court or from the Tribunal. In the present case, Annexure-E to the Writ Petition is the statement of the workman i.e., the respondent and Annexure-F is the statement made on behalf of the Management. A perusal of the statement made on behalf of the Management is relevant and it needs to be referred to. In Examination in chief, the witness on behalf of the Management name by Sri Ram Mohan B. Bekar who is the appointing authority for the post of watchman says:-
"that there is no difference in the scale of pay between the permanent and temporary workman. Temporary workman is paid according to the number of days he worked."
8. During the cross examination it has been stated by the management witness Sri Ram Mohan B. Bekar as under:-
"I came to know him by seeing records. I have maintained the records of temporary watchman regarding salary and other things. I have not produced the records pertaining to the claimant's pay and other things. I know that claimant was working in our department since 1977 till 1988 with gaps."
This deposition made on behalf of the Bank i.e., present appellant by its witness Sri Rama Mohan B. Bekar, who claims himself to be the Chief Manager Personnel, State Bank of India, Hubli, per se shows that the records relating to the workman i.e., respondent No. 1 were maintained and the evidence regarding the material facts, as to the salary for the days during which the workman can be said to have been in the possession and control of Bank. These records have not been produced. Records have not been produced without any reason and in a case where documentary evidence throwing light on matter in issue is admittedly in possession of the parties to the case, no such argument can be allowed to be advanced that they were not summoned and therefore they were not produced, instead an adverse inference or adverse presumption can be and should be drawn against party having and withholding of such evidence in his possession and not producing the same for perusal and consideration of the Court.
9. In the leading case of MURUGESAM PILLAI v. GNANA SAMBANDHA PANDARA SANNADHI AIR 1917 PC 6, Their Lordships of the Privy Council have been pleased to observe as under:-
"A practice has grown up in Indian procedure of those in possession of the important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to with-hold from the Court the written evidence in their possession which would throw light upon the proposition."
In this connection, another Decision of Their Lordships can also be referred to i.e., the Decision of the Privy Council in RAMESHWAR SINGH v. BAJIT LAL PATHAK AIR 1929 PC 95, in which same principle had been reiterated.
In the case of HIRALAL AND ORS. v. BADKULAL AND ORS. , a perusal of paragraph-4 of the Judgment will per se show that in this case as well, Their Lordships of the Supreme Court have laid down the same Rule of Law of Evidence and quoted with approval the above Decisions of the Privy Council.
10. Keeping these principles in view, when it comes out that it is admitted by the Management that they maintained the record of the service of temporary watchman including that of the present workman respondent No. 1 in the appeal, relating to salary, attendance etc., and they did not produce it before the Labour Court. Labour Court was justified in raising adverse presumption against the Management, taking the view that the claim which has been initially made by the workman in his application for difference amount to the tune of Rs. 8,000/- was correct and therefore it acted in accordance with law for granting the claim made by the petitioner and directed the Management to pay that sum of Rs. 8,000/-. The decision of the Labour Court in our view as such was fully justified and did not suffer from any error of law or of jurisdiction.
11. The learned Counsel for the appellant submitted that the Labour Court was not entitled under Section 33(c)(2) of the Industrial Disputes Act to hold that the workman has been entitled to certain wages or difference of wages.
12. Learned Counsel submitted, when it holds that he is entitled to certain wages, he will be acting in excess of jurisdiction, by creating new rights. In this case, there is no such dispute that he has not been working with the appellant. The Manager of the Bank himself says "I know that the claimant was working in our department since 1977 to 1988 with gaps". When it is the admitted position that the workman was working with the Bank since 1977 till 1988, and the alleged gaps were neither established or shown by not producing the record and that according to the admission of the Manager there was no difference between the scale of permanent and temporary watchman, there was no question to be decided with respect to the rights. There was only question of computation of difference of wages to be paid. In such circumstances, the duty of the Bank was to produce the accounts relating to the working of the workman, as to period i.e., for how many days he has worked, as well as account of payment of salary. In fact the authorities though they maintained the record, they admit that they have not produced it without any reason either before the Labour Court or before the learned single Judge, as such it is beyond doubt that presumption under Section 114 of the Evidence Act did arise against the Bank and in favour of the workman and therefore the difference of wages was and could be computed on the basis of that presumption, by accepting the claim as made in the application by the workman.
13. As such in our opinion, neither the Labour Court nor the learned single Judge did not commit either jurisdictional error or error of law apparent on the face of the Court. Really the Decision has been in consonance with the law declared by the Supreme Court, following the Privy Council Decision. Apart from that the order had been just in the circumstances and it did not call for interference. That an order even though if suffers from any error of law, but from it appears that substantial Justice has been done to the parties, this Court under Article 226 of the Constitution of India is entitled to refuse exercise of its jurisdiction and power which are discretionary and therefore, the learned single Judge was justified in dismissing the Writ Petition and in our opinion learned single Judge did not commit any error, either of law or fact or of jurisdiction in dismissing the Petition as such. In our opinion, the Appeal has got no force, is hereby dismissed.