Gujarat High Court
State Bank Of India vs Jamnagar Jilla Mazdoor Sangh on 25 March, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21833 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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STATE BANK OF INDIA
Versus
JAMNAGAR JILLA MAZDOOR SANGH & 3 other(s)
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Appearance:
MR LAKHPATSINH DABHI(2289) for the Petitioner(s) No. 1
for the Respondent(s) No. 5
ADVOCATE NOTICE UNSERVED for the Respondent(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 3,4
MR GNANESH BHATT for MR GAURANG H BHATT(166) for the
Respondent(s) No. 2,3.1,4.1,4.2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 25/03/2022
CAV JUDGMENT
(1) The present petition has been filed inter alia seeking for quashing and setting aside the award dated 15.02.2005 passed by Central Industrial Tribunal, Bhavnagar, in Reference ITC No.81 of 1994, by which three workmen (drivers) viz. (i) Ashwin Nagjibhai Barad;
(ii) Upendra Vishnuprasad Trivedi and (iii) Ranjit Nagjibhai Barad are held to be employee of the petitioner-Bank and the petitioner-Bank Page 1 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 is directed to reinstate them in service with full back wages and all consequential benefits, after declaring their termination as illegal. A cost of Rs.5,000/- is also awarded.
(2) The aforesaid workmen / three drivers raised a dispute in the year 1992 under the provisions of the Industrial Disputes Act, 1947 (the I.D.Act), through the respondent-Union with regard to their illegal termination which culminated into Reference ITC No.81 of 1994.
(3) The Tribunal, by the impugned award has allowed the reference. Shri Ashwin Nagjibhai Barad passed away during pendency of the reference before the Tribunal. Shri Upendra Vishnuprasad Trivedi has also passed away during the pendency of the writ petition. He is being represented through his legal heirs.
(4) Learned advocate Mr.Dabhi appearing for the petitioner has submitted that total three employees had raised industrial dispute, which has been referred by the Central Government vide order dated 03.10.1994 for adjudication of the issue, whether the termination of the employees is illegal or not ? It is submitted that the reference, which has been referred was itself null and void and without application of mind because Upendra Page 2 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 Vishnuprasad Trivedi had worked with the petitioner-Bank from 1984 to 31.10.1994 and Ranjit Nagjibhai Barad had worked from 1988 to end of 2000, and Ashwin Nagjibhai Barad from 1987 till May 1991 hence, the workmen have not been terminated when the reference was referred. It is submitted that there cannot be any industrial dispute about termination, if workman is not terminated and hence, the reference itself is nullity.
4.1) Learned advocate Mr.Dabhi has further submitted that the Tribunal had come to an incorrect conclusion that there is a breach of Section 25F of the I.D.Act. It is submitted that this finding is without any basis and evidence on record of the case. Learned advocate has asserted that "continuous service" has been defined under section 25B of the I.D.Act. It is submitted that the concerned workmen have to complete 240 days in the preceding calendar year and the burden of proving completion of 240 days in the preceding calendar years is on the workmen. It is submitted that in the present award, there is not a single finding on the issue that the present workmen have completed 240 days in the preceding calendar year, and no evidence to that effect has been produced by the workmen.
Page 3 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 4.2) Learned advocate Mr.Dabhi has further submitted that in the present case, though no evidence has been produced by the workmen that they have remained unemployed during the pendency of the reference by the Tribunal, the Tribunal has granted full back wages, which is against the provision of law. It is submitted that there was no relationship of master and servant between the employer and employee. It is submitted that as per the deposition of the Liaison Officer there was ban on appointing the drivers and the higher officers were allowed to engage drivers and payment was being done by the officers to the drivers, which in turn, would be reimbursed to the bank officers. It is submitted hence, the workmen were engaged by the bank officers in their personal capacity and not by the bank and, therefore, there is no question of relationship of master and servant between the bank and drivers. In this regard reliance is placed by the learned advocate for the petitioner upon the decision rendered by the Apex Court in the case of Punjab National Bank vs. Ghulam Dastagir, 1978 (2) S.C.C. 358 to substantiate his case.
(5) Per Contra, learned advocate Mr.Bhatt appearing for respondent Nos.2, 3.1, 4.1 and 4.2, has made his submission and has also Page 4 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 filed the written submissions. It is contended that the workmen worked for the petitioner- Bank, drove the car of the bank and the bank made payments to the said workmen and maintenance/ service / fueling of the cars was done by the workmen under instructions of the liaison officer of the petitioner-Bank. Moreover, it is submitted that in absence of any driving work, the said workmen worked as peons of the petitioner-Bank under the instructions of the liaison officer of the petitioner-Bank. It was submitted that the said workmen were paid at par with the regular drivers of the petitioner-Bank, and they drove the cars from the general pool, as instructed by the liaison officer.
5.1) Learned advocate Mr.Bhatt submitted that the petitioner-Bank has produced no evidence that the payments to the concerned workmen were made by the managers and not the petitioner- Bank, on the contrary in the award it is recorded that the documentary evidence reveals that the petitioner-Bank was paying salary directly to the workmen. It is submitted that it comes from the record that several officers had changed during the service period of the said workmen and still they remained in service, which does not align with the stand of the petitioner-Bank that the said workmen Page 5 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 were in the capacity of personal driver of their Bank Manager.
5.2) Learned advocate Mr.Bhatt submitted that the petitioner-Bank has conveniently not placed the evidence with regard to the logbooks before the Industrial Tribunal prior for the period before 1994 and only the logbook placed on record was that of the month of June. It was submitted that the award dated 15.02.2005 observed volumes of documentary evidence to conclude that the said workmen were in direct control and worked under the instructions of the Liaison Officer of the petitioner-Bank, thereby establishing a master-servant relationship, with the petitioner-Bank.
5.3) Learned advocate Mr.Bhatt qua the workman -
Ashwin Nagjibhai Barad has submitted that the reference was preferred in the year 1994, very much after the termination of Shri Ashwin Nagjibhai Barad in the year 1991 and, therefore, the reference qua him very much survives. Apropos workman-Upendra Vishnuprasad Trivedi it was submitted that contrary to the oral submissions during the course of final hearing, the petitioner-Bank has never contended the maintainability aspect of the reference qua him. It is submitted that the preliminary objection on the said ground is Page 6 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 raised in the statement of defence solely qua workman - Ranjit Nagjibhai Barad. It is submitted that such contention has not been pleaded qua the workman - Upendra Vishnuprasad Trivedi. It is submitted that it is not justified to take the same contention after such a long litigation of 28 years and directly only at the stage of final hearing and the same shall be disregarded in the interest of justice. No further submission is advanced.
(6) I have heard the learned advocates appearing for the respective parties at length. The documents as pointed out by them are also perused.
(7) The terms of reference as recorded in the impugned award dated 15.02.2005 passed by the Industrial Tribunal, Bhavnagar, in Reference ITC No.81 of 1994 is as under:
"Whether the claim of the Jamnagar Jilla Mazdoor Sangh that S/Shri Ashwin Barad, Upendra Trivedi and Ranjit Barad are workmen of State Bank of Saurashtra, Bhavnagar is correct ? If so, whether the action of the management of State Bank of Saurashtra in termination their services is legal and justified ? What relief, if any, S/Shri Ashwin Barad, Upendra Trivedi and Ranjit Barad are entitled to ?"
(8) From the terms of the reference, it appears that the workmen had raised an industrial dispute with regard to their termination. The Page 7 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 respondent-workmen have not disputed that the respondent no.2-Shri Ranjit Nagjibhai Barad had worked from April 1988 to end of 2000, respondent no.3-Ashwin Nagjibhai Barad from 1987 to May 1991 and, respondent no.4-Upendra Vishnuprasad Trivedi from no.1984 to 31.10.1994. It is not disputed that at the time of making reference except respondent No.3-Ashwin Nagjibhai Barad, the rest of the two workmen were in service and they were not terminated. The dispute was referred by the appropriate government on 03.10.1994. The Tribunal, in the award has recorded the fact that Shri Ranjit Nagjibhai Barad was still in service at the time of passing the award. It is also recorded that Shri Upendra Vishnuprasad Trivedi was in service till 31.10.1994. Thus, the dispute which, was referred itself was erroneous. When the Tribunal was conscious of such fact, it should not have proceeded with the reference proceedings. The appropriate government and the Tribunal should have confined the dispute and the reference to Shri Ashwin Nagjibhai Barad only, whose services were taken till May, 1991. Even if the parties to the reference do not agitate such facts, the Tribunal on its own motion should not have adjudicated an erroneous dispute which was referred. Hence, the impugned award dated Page 8 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 14.02.2004 passed in favour of two workmen, respondent No.2-Shri Ranjit Nagjibhai Barad and respondent No.4-Shri Upendra Vishnuprasad Trivedi is nullity and without jurisdiction and hence, the same will not apply to them.
(9) Thus, the dispute is confined to respondent no.3-Ashwin Nagjibhai Barad. It is not disputed that Shri Ashwin Nagjibhai Barad had passed away prior to the judgement and award on 27.09.2004. By the order dated 10.12.2003 passed by this Court in Civil Application No.6858 of 2013, the legal heirs of respondent No.3-Shri Ashwin Nagjibhai Barad are ordered to be joined as party respondents. Thus, when the award of reinstatement was passed, the respondent no.3 had already passed away. Hence, no order of reinstatement could have been passed by the Tribunal against him. Be that as it may. It is the case of the respondent no.3 that he worked from 1987 to May 1991, and was illegally terminated in the year 1991. The dispute has been raised after a period of three years.
(10) The petitioner-Bank has raised two fold contentions, (1) that the workmen were not employed by the petitioner-Bank, but by the Manager in his personal capacity; and (2) the workman have not proved that they have Page 9 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 completed 240 days preceding 12 months from their termination.
(11) The Tribunal, after examination of the documentary and oral evidence, has concluded that there existed master and employee relationship between the petitioner-Bank and the Manager of the petitioner-Bank. Though, the workmen were engaged as Drivers for driving the cars of bank officers, the petitioner-Bank had appointed a liaison officer in order to supervise the pay and the expenses spent on the cars. After the scrutiny of the petitioner-Bank, such pay and expenses were being paid by the petitioner-Bank and not by the Managers of the Bank. In the present case, there was no direct payment of expenses or pay to the workmen by the Managers of the Bank. Thus, this Court does not find any illegality or perversity in the findings of the petitioner-Bank in this regard. The judgment of the Apex Court in case of Ghulam Dastagir (supra), on which the reliance is placed by the petitioner, will not apply to the facts of the case. Since in the present case the employer and employee relationship between the Bank and the workmen is established by oral and documentary evidence.
Page 10 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 (12) With regard to the findings of the Tribunal in relation to the violation of the provisions of section 25F of the I.D.Act, this Court does not approve the same. The award of the Tribunal is blissfully silent on the aspect of completion of 240 days in preceding 12 months before termination of the workmen. In the case of R.M.Yellatti vs The Asst. Executive Engineer, 2006 (1) S.C.C. 106, the Apex Court has observed thus:
"12 Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s. 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll of the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Art. 226 of the Constitution of India will not interfere with the concurrent findings Page 11 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."
(13) In the case of Mohd. Ali vs. State of H.P., 2018 (15) S.C.C. 641, the Apex Court has reiterated the calculation of 240 days as follows:
"9. It is a well known fact that the Industrial Disputes Act is a welfare legislation. The intention behind the enactment of this Act was to protect the employees from arbitrary retrenchments. For this reason only, in a case of retrenchment of an employee who has worked for a year or more, Section 25F provides a safeguard in the form of giving one month's prior notice indicating the reasons for retrenchment to the employee and also provides for wages for the period of notice. Section 25B of the Act provides that when a person can be said to have worked for one year and the very reading of the said provisions makes it clear that if a person has worked for a period of 240 days in the last preceding year, he is deemed to have worked for a year. The theory of 240 days for continuous service is that a workman is deemed to be in continuous service for a period of one year, if he, during the period of twelve calendar months preceding the date of retrenchment has actually worked under the employer for not less than 240 days."
(14) The aforenoted view of the Apex Court has been followed in various judgements and it is well settled proposition of law that the initial burden lies on the workmen to prove that he has completed 240 days in the last preceding year. It is held that the workman can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc, and the drawing of adverse inference ultimately would depend Page 12 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022 C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 thereafter on facts of each case. It is also asserted by the Apex Court that mere affidavits or self-serving statements made by the claimant / workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. In the instant case, the Tribunal had ordered production of the logbook of the car to ascertain the employment of the workmen. The Tribunal has also recorded that the petitioner-Bank had only produced the logbook prior to reference. After recording such findings, the Tribunal has not discussed evidence with regard to completion of 240 days by each of the workmen. It was the statutory duty and obligation of the Tribunal to give a specific finding with regard to completion of 240 days by each of the workmen, after examination of the logbook or any other documents, but such exercise has not been undertaken by the Tribunal. Thus, in absence of such exercise or findings, it was erroneous for the Tribunal to declare the termination illegal in violation of section 25F of the I.D.Act. Hence, the finding given by the Tribunal with regard to the termination of all the workmen being violative of the provisions of section 25F of the I.D.Act is perverse and does not reconcile with the law.
Page 13 of 14 Downloaded on : Sun Mar 27 01:30:23 IST 2022C/SCA/21833/2005 CAV JUDGMENT DATED: 25/03/2022 (15) On the bedrock of the afore-mentioned analysis and reasons, the impugned award passed by the Tribunal does not merit acceptance. The same is quashed and set aside. It is clarified that any amount which has been paid to the workmen under the provision of section 17B of the I.D. Act shall not be recovered.
(16) The writ petition succeeds. Rule made absolute.
Sd/- .
(A. S. SUPEHIA, J)
***
Bhavesh-[PPS]*
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