Gujarat High Court
Zonal Manager State Bank Of India vs Modi Rajeshkumar Shantilal on 3 May, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/306/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 306 of 2008
In SPECIAL CIVIL APPLICATION NO. 12285 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ZONAL MANAGER STATE BANK OF INDIA
Versus
MODI RAJESHKUMAR SHANTILAL
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Appearance:
MR PRANAV G DESAI(290) for the PETITIONER(s) No. 1,2
MR TR MISHRA(483) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 03/05/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV) Page 1 of 21 C/LPA/306/2008 CAV JUDGMENT 1 The present Letters Patent Appeal has been filed by the appellant who was the original petitioner before the learned Single Judge. By the order dated 31.01.2008, the learned Single Judge dismissed the petition and confirmed the award passed by the Industrial Tribunal, Baroda, in Reference I.T.C No. 11 of 1999 dated 16.04.2002. By the aforesaid award, the respondent herein was directed to be reinstated in service as a Messenger and on completion of one year was to be placed in the minimum pay-scale. The Industrial Tribunal did not award backwages for the interim period.
2 The facts in brief are as under:
2.1 The respondent- workman was serving as a Messenger with the appellant-Bank. His services were terminated on 31.12.1995. Aggrieved by this, the respondent raised an Industrial dispute which was referred to the tribunal. 2.2 A Statement of Claim was filed by the respondent at Exh.3. It was his case before the Tribunal, that he had joined in the subordinate cadre of the bank as a Messenger with effect from 03.01.1989. He continued in service up to 31.12.1995. Preceding his termination, he worked continuously on daily wages from 01.05.1994 to 31.12.1995 Page 2 of 21 C/LPA/306/2008 CAV JUDGMENT for a period of more than 240 days. In the Statement of Claim, details of the number of days that the respondent had worked from 1989 to 1995 were laid out. A Certificate issued by the bank at Exh.25 for the period from 01.04.1992 to 30.06.1993 was also on record. It was the case of the workman therefore, that since he had worked for a period of more than one year and had rendered continuous service within the meaning of Section 25B of the Industrial Disputes Act, 1947, his termination without following the procedure under Section 25F of the Act was bad. Declaration for reinstatement was accordingly sought.
2.3 The appellant bank filed the written reply at Exh.9. That the respondent's service was terminated with effect from 31.12.1995 was denied. According to the bank, the respondent was engaged on a purely temporary and adhoc basis as a daily wager and Section 25F of the Industrial Disputes Act,1947 was therefore not applicable. The bank further contended that the workman, respondent herein had not completed 240 days.
2.4 The respondent workman produced documents from Exhs 21 to 26. The respondent workman filed an application, Page 3 of 21 C/LPA/306/2008 CAV JUDGMENT Exh.11 with a request that the bank be directed to produce certain documents showing the number of days, that the respondent workman had worked. By an order at Exh.16, the application was partly allowed. Certain documents were produced at Exh.18.
2.5 The respondent workman filed an affidavit of his deposition at Exh.20. It was contended before the tribunal that the respondent workman had worked for 240 days from 01.04.1994 to 31.12.1995. Learned advocate for the bank contended that there was delay in filing the reference. After termination in 1995, the reference was filed after a period of four years in 1999. It was the contention of the bank that the respondent workman had not produced any evidence of having completed more than 240 days, which burden of proof lay with him.
2.6 The Industrial Tribunal after considering the evidence on the basis of the Certificate at Exh.25, which has been produced before the learned Single Judge, found that the respondent workman had worked for a period of 319 days from April 1992 to June 1993. To the application filed for production of documents, the bank could not produce the Page 4 of 21 C/LPA/306/2008 CAV JUDGMENT same for the period from 01.11.1992 to 31.12.1995 on the ground that the vouchers were more than ten years old. The Industrial Tribunal observed in view of such non production, it was proved that the respondent workman had worked from 01.05.1994 to 31.12.1995 as Messenger. The Industrial Tribunal further held that, in view of such failure by the employer to produce relevant evidence, an adverse inference could be drawn to suggest that the workman had worked for a period of more than 240 days before he was retrenched. The Labour Court observed that he was therefore in continuous service and in absence of any notice, the retrenchment was held to be bad. Reinstatement was ordered, however, without backwages.
2.7 A petition was filed therefore by the appellant bank challenging the aforesaid award which was dismissed by the learned Single Judge on 31.01.2008. It may be pointed out that, initially, the bank had challenged this order by filing Letters Patent Appeal No. 306 of 2008. Pending the appeal, the Court had granted interim relief subject to compliance of Section 17(B) of the Industrial Disputes Act, 1947. By an order dated 02.07.2013, the appeal was dismissed on the ground of jurisdiction. The bank preferred a Special Leave Page 5 of 21 C/LPA/306/2008 CAV JUDGMENT Petition which was subsequently withdrawn to prefer a review application. A review was filed before this Court, which was dismissed on 28.01.2014. The bank again preferred a Special Leave Petition, which was disposed of on 29.04.2016 and the matter was remanded to this Court. Hence the appeal is heard on merits.
3 The learned Single Judge by the judgment under challenge confirmed the award, as far as reinstatement is concerned. However, a modification was made inasmuch as, the relief was only restricted to reinstatement with continuity of service.
4 Mr. P.G.Desai, learned advocate for the appellant has assailed the findings of the learned Single Judge on the following grounds:
(I) According to Shri Desai, the learned Single Judge committed an error in, bringing the definition of continuous service under Section 25 B(1) while deciding the question of, the respondent having completed 240 days preceding his retrenchment. According to Shri Desai, when it was the specific case of the workman that he had completed 240 days and his case was governed by Section 25-B(2)(ii), it was not Page 6 of 21 C/LPA/306/2008 CAV JUDGMENT open for the learned Single Judge to hold that the respondent had rendered continuous service for more than 240 days based on the certificate at Exh.25.
(II) According to Shri Desai, the relevant period that ought to have been considered for the purposes of section 25-B(2)(ii) was the period from 01.04.1994 to 31.12.1995 and not any other period prior thereto. Section 25B(1) could not have been pressed into service as the word "that period" in such provision had no relation with the period preceding 12 months of retrenchment because here "that period" considered was 1992-1993 whereas the preceding 12 months were 1994-
1995.
(III) Mr. Desai further contended that, the respondent workman was a daily wager, and therefore, in absence of any evidence brought on record to show that he had completed 240 days, the award and the order of the learned Single Judge were incorrect. The learned Single Judge rather than awarding reinstatement in service, ought to have awarded compensation. In support of his submissions, Shri Desai relied on the following decisions:
1 G.M, B.S.N.L and others. vs. Mahesh Chand [(2008) 3 SCC 474] Page 7 of 21 C/LPA/306/2008 CAV JUDGMENT 2 Incharge Officer and Another vs. Shankar Shetty [(2010)9 SCC 126] 3 Assistant Engineer, Rajasthan Development Corporation And Another vs. Gitam Singh [(2013) 5 SCC 136] 4 Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota vs. Mohan Lal., [(2013) 14 SCC 543] (IV) Shri Desai, learned advocate for the appellant further contended that the Industrial Tribunal and in turn the learned Single Judge, ought not to have held that the burden of proof to substantiate the number of working days had shifted on the employer. No adverse inference as observed by the Industrial Tribunal could have been drawn to come to a conclusion that the respondent had completed 240 days. In support of this submission, Shri Desai relied on a decision of the Supreme Court in the case of Surendranagar District Panchayat vs. Dahyabhai Amarsinh reported in AIR 2006 SC 110.
According to Shri Desai, it is for the workman to prove that he had worked for 240 days.
(V) Shri Desai further contended that the Reference was Page 8 of 21 C/LPA/306/2008 CAV JUDGMENT raised four years after the termination, and the Reference therefore ought not to have been entertained only on the ground of delay.
5 Shri U.T.Mishra, learned advocate for the respondent workman supported the order of the learned Single Judge. According to Shri Mishra, the learned Single Judge was right in holding that though both Sections 25 B(1) and (2) are independent, if the workman has satisfied the requirement of Section 25-B(1), then it is immaterial or irrelevant whether he satisfies continuous service of 240 days as required under Section 25-B(2).
5.1 According to Shri Mishra, Section 25-F of the Industrial Disputes Act, suggests that a workman who has been in continuous service for not less than one year shall be retrenched by following the prescribed procedure. Continuous service, therefore, is such service as defined under Section 25-B(1) of the Act. This service includes uninterrupted service, interrupted on account of sickness or authorized leave or an accident or a strike which is not legal etc. 25-B(2) is only a provision of deeming fiction of continuous service on completion of 240 days where a workman is not in continuous Page 9 of 21 C/LPA/306/2008 CAV JUDGMENT service for a period of one year. Shri Mishra, therefore contends that the learned Single Judge did not commit any error in relying on the Certificate Exh.25 and including 319 days for the period from April 1992 to June 1993. Admittedly, since the workman was in service from 03.01.1989 to 31.12.1995, the concept of the deeming fiction of 240 days was not applicable.
5.2 Mr. Mishra further contended that, the Industrial Tribunal was correct in drawing an adverse inference, in view of the fact that though the employer did depose through its witness Shri Ravindra Lad at Exh. 29, the burden was not discharged by producing vouchers, though directed by the Industrial Tribunal below Exh.16 and though incomplete records produced at Exh.18.
5.3 Reliance was placed by Shri Mishra, learned advocate for the respondent in a judgment in the case of Harjinder Singh vs. Punjab State Warehousing Corporation, by placing reliance on paragraph 29 of the said judgment. 5.4 With regard to the contention that, Section 25-B which defines " continuous service" as in Section 25-B(1) and would Page 10 of 21 C/LPA/306/2008 CAV JUDGMENT be applicable because no evidence was adduced by the employer to suggest that the respondent workman had not worked for more than 240 days and that he was in continuous service from 1989 to 1995 without interruption would suggest that compliance of Section 25-F was mandatory. The deeming fiction of Section 25-B(2) was not applicable in the facts of this case and merely because such a pleading was made in the Statement of Claim would not otherwise so suggest. 5.5 Mr. Mishra, relied on a decision of the Supreme Court in the case of The Workmen of American Express International Banking Corporation And the Management of American Express International Banking Corporation in support of his submission that for calculation of 240 days, holidays need to be taken into account.
5.6 Relying on the judgment in the case of R.M Yellatti vs. Assistant Executive Engineer, reported in AIR 2006 SC 355, Shri Mishra contended that, in case of a daily wager, there is no proof of a letter of appointment or receipt and therefore, only the employer can produce before the Court the nominal muster roll for the given period and therefore, in Page 11 of 21 C/LPA/306/2008 CAV JUDGMENT absence of so proving the case, adverse inference can be drawn.
6 Having considered the submissions of the learned advocates for the respective parties, the following issues arise for our consideration:
(A) Whether the learned Single Judge was right in his perception in relying on the certificate Exh. 25 and holding that the respondent workman has satisfied requirement of Section 25B(1) and therefore has completed continuous service preceding the date of retrenchment, and therefore there was non-compliance under Section 25-F of the Act. (B) Whether the Industrial Tribunal and in turn the learned Single Judge while confirming the award was right in drawing an adverse inference against the appellant-employer for the purposes of holding that the respondent had completed 240 days, as the employer had failed to produce vouchers as ordered below Exh.16.
For our benefit, we reproduce hereunder Sections 25B and 25F of the Industrial Disputes Act, 1947:
"Sec.25-B. Definition of continuous service.- For the purposes of this Chapter -
i. a workman shall be said to be in Page 12 of 21 C/LPA/306/2008 CAV JUDGMENT continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;
ii.Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-
(a) for a period of one year, if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
i. one hundred and ninety days in the case of a workman employed below ground in a mine; and ii.two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
Explanation :- For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or Page 13 of 21 C/LPA/306/2008 CAV JUDGMENT under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
Section 25C xxx xxx xxx Section 25D xxx xxx xxx Section 25E xxx xxx xxx
Section 25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice,
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette.] " Page 14 of 21 C/LPA/306/2008 CAV JUDGMENT 7 While deciding the issue (A), what needs to be considered is that the respondent workman had specifically made out a case in the Statement of Claim that he had worked from 03.01.1989 to 31.12.1995. For the period from 01.04.1994 to 31.12.1995, he had clearly stated that he had worked for more than 240 days. In addition thereto it was his specific case that he was in continuous service for over a year of service and therefore there was no reason for applying the deeming fiction of 240 days of working days in a period of less than a year.
7.1 Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for not less than one year. "Continuous service" is defined under Section 25-B of the Act. Section 25- B(1) suggests that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness, authorized leave etc. Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could Page 15 of 21 C/LPA/306/2008 CAV JUDGMENT not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment". In our opinion, this submission of Shri Desai, is without merit. Continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service and the employee would be deemed to be in service for such period. It was the case of the respondent workman here, by a positive assertion in the Statement of Claim that not only did he work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995, but that from April 1992 to June 1993 he was in service except for the cessation without his fault, and therefore the case squarely fell within the domain of Section 25-B(1) of the Act. The employer having failed to discharge its burden by producing vouchers though so ordered under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. Having failed to Page 16 of 21 C/LPA/306/2008 CAV JUDGMENT do so, interruptions need to be ignored and the respondent workman, as observed by the learned Single Judge needs to be treated to be in continuous service without interruption as defined under Section 25-B(1) of the Act. It is relevant to note one important aspect that Section 25B(1) had been discussed by Apex Court in case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page 750. Relevant para 8 of this decision is quoted as under:
"S8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Sec. 25B of the Act defines continuous service for the purpose of Chapter V-A .SLay -off and Retrenchment. The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be said to be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but Page 17 of 21 C/LPA/306/2008 CAV JUDGMENT also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of the Section 25B introduced the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and
(b) of Sub-section (2). By the legal fiction of sub-section (2)(a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has put in at least 240 days with his employer, immediately, prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F."
7.2 What is meant by continuous service for the purpose of Chapter VA has been defined under Section 25B.The requisites for treating a person to be in continuous service for the requisite period,in case of Section 25F is that either he should be in uninterrupted service including service which may be interrupted on account of sickness or authorized leave etc which is not due to fault of workman or cessation of work for no fault of the workman. If a workman completes continuous service of employment of more than one year as is so established in the present case, on the failure of the Page 18 of 21 C/LPA/306/2008 CAV JUDGMENT employer to discharge the burden adverse inference needs to be drawn. These facts must be reflected clearly in reference to the date of retrenchment with any block of twelve months with reference to continuous service. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set off the fact of the workman being in continuous service for one year including interruptions beyond his control.
7.3 As far as issue (B) is concerned, Shri Desai's contention by relying on decision in the case of Surendranagar (supra) would be of no avail. An application Exh.11 was moved by the respondent workman for production of vouchers from the employer. An order at Exh. 16 was passed. The employer failed to produce such vouchers and therefore did not discharge the burden of proving otherwise. The learned Single Judge as well as the Industrial Tribunal, in our opinion therefore, even on the second ground were right in holding that once the employer had failed to negate the assertion of the employee, by failing to discharge the burden, recourse to the deeming fiction of completion of 240 days would not arise. Adverse inference was rightly drawn by the Industrial Tribunal, on the employer's failure to produce Page 19 of 21 C/LPA/306/2008 CAV JUDGMENT relevant record though directed to do so. 8 As far as Shri Desai's reliance on the judgments of the Supreme Court to suggest compensation instead of reinstatement is concerned, since the respondent was a daily wager, we do not agree with this submission. The respondent workman has been in employment as a Messenger from 03.01.1989 to 31.12.1995. The period is of approximately six years. Nothing has been brought on record to suggest that there was cessation of work for which it was not the employee's fault. The respondent workman therefore, though branded as a daily wager, was in fact, as rightly held by the learned Single Judge in continuous service. Litigious employer has gone back and forth from this Court before the Single Judge to the Division Bench and then Supreme Court and back on two occasions rendering the workman without the fruits of litigation for more than eleven years. No fault can therefore be found with the respondent workman who notwithstanding the employer's zeal to tire him out steadfastly remained patient. Compensation can be no solace to such a workman. 9 For the reasons stated in the judgment, we confirm the order of the learned Single Judge dated 31.01.2008. The Page 20 of 21 C/LPA/306/2008 CAV JUDGMENT Appellant Bank is directed to comply with the directions of the Learned Single Judge forthwith. The appeal is accordingly dismissed.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) Bimal Page 21 of 21