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STATE BANK OF INDORE, MUMBAI V/S RASHTRIYA MAZDOOR SENA, NAGPUR & ANOTHER , decided on Thursday, June 12, 2003.
[ In the High Court of Bombay, WRIT PETITION NO.2377 OF 1999 . ] 12/06/2003
Judge(s) : R.M.S. KHANDEPARKAR
Advocate(s) : Shri A.V. Bukhari. Shri K.S. Bapat i/b S.S. Kulkarni, No.1
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  "2003 (2) CLR 787"  ==   "2003 (6) BCR 249"  ==   "2003 (4) ALL MR 1010"  







    Case Law Referred :1.Ashwani Kumar & Ors. v. State of Bihar & Ors. 1997 II LLJ 856 (Para 3).2.Himanshu Kumar Vidyarthi & Ors. v. State of Bihar & Ors. 1997 II CLR 15 (Para 3).3.Dhanawanti Devi v. Union of India 1996 (6) SCC 44 (Para 8).4.State of Haryana & Ors. v. Piara Singh & Ors. 1993 II LLJ 937 (Para 3).     ORAL JUDGMENTHeard the learned Advocates for the parties. Perused the records. 2.The petitioners are challenging the Award dated 10-6-1999 passed by the Central Government Industrial Tribunal Mumbai allowing the reference and declaring the action of the management in terminating the services of one Damodar Sadashiv Rao Agra to be illegal and further directing his reinstatement in the services with continuity and payment of full back wages with effect from 22-2-1997. 3.The impugned Award is sought to be challenged mainly on the ground that the voluminous documentary evidence produced by the petitioners was not at all considered by the Tribunal and the documentary evidence which is produced by the respondents themselves disclose that Damodar was not the workman within the meaning of the said expression under the industrial Disputes Act 1947 hereinafter called as the said Act and therefore the impugned order is illegal and needs to be set aside. Reliance is placed in the decisions in the matters of State of Haryana & Ors. v. Piara Singh & Ors. reported in 1993 II LLJ 937 Ashwani Kumar & Ors. v. State of Bihar & Ors. reported in 1997 II LLJ 856 and Himanshu Kumar Vidyarthi & Ors. v. State of Bihar & Ors. 1997 II CLR 15. On the other hand the Award is sought to be justified contending that the Tribunal has analysed the evidence on record in proper perspective and therefore the findings arrived at cannot be found fault with and hence there is no case for interference in the impugned Award in writ jurisdiction. 4.It was the case of the petitioners before the Tribunal that Damodar Sadashiv Rao Agra was not a workman within the meaning of the said expression under the said Act as he was rendering the services for cleaning the premises pursuant to the contract to that effect with him by the petitioners and for that purpose he had even opened a bank account in order to collect the amount paid to him towards the said services. It is their further case that Damodar had a proprietary concern by name M/s. Tarachand Safai Agency which was engaged in cleaning premises and other allied services and the same was accordingly utilised by the bank since 1992. On the other hand it is the case of the respondent that the said Damodar was the workman employed by the petitioners and yet he was not paid his wages according to the law and on the top of it his services were illegally sought to be terminated since 1997 and therefore the respondent was compelled to raise the industrial dispute. 5.Perusal of the impugned Award discloses that the Tribunal after detailed analysis of the materials on record has held that the petitioners have failed to establish that there was any contract of the nature as alleged by the petitioners and that therefore Damodar is not the workman within the meaning of the said Act. Indeed the evidence which was sought to be read over by the learned Advocate for the petitioners apparently discloses that the bank on its part had examined a witness by name Neeraj Nayak an officer of the bank. However in the course of cross-examination he had candidly admitted that he had never worked as manager at Nagpur at the concerned branch and he had no personal knowledge regarding the case in hand and whatever he had stated was on the basis of the record in the office. However he had nowhere disclosed what those records based on which he had deposed in the matter were. Admittedly there was no written agreement regarding the alleged service contract between the bank and Damodar or with M/s. Tarachand Safai Agency. Even the deponent Neeraj has not bothered to disclose the terms of the agreement if any with Damodar in relation to the cleaning services offered nor any other documentary evidence in support of the claim of existence of such agreement between the parties has been produced by the petitioners. Apart from Neeraj who had been examined by the petitioners the petitioners have not bothered to examine even a single officer who had worked in the concerned branch during the period from 1992 to 1997 to support their claim either regarding the existence of the alleged agreement between the petitioners and Damodar or regarding the nature of the services rendered by Damodar in the matter of cleaning the premises. It is needless to say that the petitioners themselves had raised the defence to the effect that Damodar is not a workman of the petitioners but had worked with the petitioners on the basis of the agreement for the purpose of cleaning of the premises and that he was paid the amount pursuant to the bills submitted by him. It was therefore necessary for the petitioners to discharge their burden to prove the defence and having failed to do so no amount of weakness in the case putforth by the respondent can enure to the benefit of the petitioners even assuming that the respondent had failed to discharge his onus to prove his case. 6.It is to be noted that the so-called bills which are produced on record and the evidence regarding the opening of the account rather than assisting the defence sought to be raised by the petitioners help the respondents in proving their case. It is not in dispute that cleaning of the premises was being done by Damodar. It was the case of the petitioners that Damodar used to get it done by engaging some other labourers. However apart from mere claim in that regard the petitioners have not bothered to produce any evidence in that respect. It is an admitted fact that payment was made to Damodar for the services rendered by him. It is also a matter of record that payments were done every month. Undoubtedly it is claimed that the payments were made on the basis of the bills submitted by Damodar. However if one peruses the other materials on record the same apparently disclose as has been explained by the respondents that taking undue advantage of the hopeless conditions of the workman the petitioners had virtually exploited the situation to their benefit by compelling Damodar to submit the bills in order to enable him to draw the wages. Neither the letter of appointment was issued in favour of Damodar nor he was allowed to sign the muster roll and yet his services were regularly enjoyed by the petitioners. It is not the case of the petitioners that cleaning of the premises could have been done or was actually done by any other person or employee of the petitioners. It is also not the case of the petitioners that the bank could have functioned without the cleaning of the premises every day. Apparently therefore the job of cleaning the premises was available continuously with the petitioners and in that regard the services of Damodar were continuously utilised by the bank for number of years and yet the bank did not grant him the status which the workman was otherwise entitled to and that is what has been granted by the impugned Award to Damodar. 7.The decision in the matter of State of Haryana & Ors. v. Piara Singh & Ors. (supra) can be of no help to the petitioners in the case in hand. There the Apex Court had ruled that: From the mere continuation of an ad hoc employee for one year it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. .....The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one... It is also pertinent to note that the observations were made in a case where for several years large number of appointments were made to Class III and Class IV services in the State of Punjab and Haryana on ad hoc basis without reference to the Public Service Commission or the authority and without adhering to the employment exchange requirement and while dealing with those cases the above quoted ruling was given. Even while considering the case of mass illegal employment by the State authorities the Apex Court clearly observed that :There is no presumption of need of regular post merely because an employee has rendered services continuously for one year yet such presumption may arise without continuation of services by such employees existence for several years. The Apex Court indeed has further observed that: There can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one case a direction was given to regularise employees who have put in one years service as far as possible and subject to fulfilling the qualifications it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. Apparently the Apex Court has clearly held that each case will have to be decided on the facts of that case. The case in hand apparently discloses that continuously from 1992 the services of Damodar were enjoyed by the petitioners for the purpose of cleaning of the premises and yet he was denied his right in respect of permanency. Hence the decision in State of Haryanas case rather than of any help to the petitioners justifies the impugned Award. 8.In Ashwani Kumar & Ors. v. State of Bihar & Ors. (supra) the Apex Court has observed that: So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the concerned candidate is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. The above observations were made while disposing of a group of appeals dealing with the issue pertaining to confirmation of the illegally appointed employees. It is well-settled that any ruling is to be understood bearing in mind the facts of the case the question which arises for determination and the decision thereon. Every observation in a judgment cannot be read as a provision of law in any statute book. Any decision in that regard if required one can safely refer to the decision of the Apex Court in the matter of Dhanawanti Devi v. Union of India reported in 1996 (6) SCC 44. Bearing in mind the same one fails to understand how the observations in Ashwani Kumars case can be of any help to the petitioners in the case in hand where the point in relation to violation of the provisions of the Industrial Disputes Act and more particularly Section 25-F thereof is concerned. 9.In the decision in the matter of Himanshu Kumar Vidyarthi & Ors. v. State of Bihar & Ors. (supra) the Apex Court has held that disengagement of certain workers from service could not have been construed to be a retrenchment under the Industrial Disputes Act. However the said observation was made after taking note of the fact that Admittedly they were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Apparently bearing in mind the facts of that particular case and more particularly the fact that the employment was on the basis of need of the work it was observed that disengagement from services of such person cannot be construed to be a retrenchment under the Industrial Disputes Act. In the case in hand the services which were rendered by Damodar by no stretch of imagination can be said to be on the basis of need of the work. The cleaning of the premises is a daily routine work and without cleaning of the premises the bank could not have functioned. There is neither pleadings nor evidence on record produced by the petitioners to the effect that any other person was available with the bank for the purpose of cleaning of the premises or that such a work was done by any other person employed by the bank. In the circumstances the services of Damodar were utilised for cleaning the premises since 1992 denying him his statutory right and the same having been granted to him by the impugned Award no fault can be found with the impugned Award and in no way the decision in Himanshu Kumars case can be of any help to the petitioners to assail the said Award. 10.The contention that the Tribunal has failed to take note of the voluminous documentary evidence while deciding the matter is also devoid of substance. The so-called the voluminous evidence is nothing but the muster roll and the wage register which have been repeatedly referred to by the learned Advocate for the petitioners while arguing the matter. It is nobodys case that the petitioner-bank had allowed Damodar to sign the muster roll or that the petitioner-bank had maintained the records regarding the payment of wages to Damodar. The very fact that the petitioners had compelled Damodar to submit the bills per month apparently disclose that the petitioners had taken care not to keep any record pertaining to payment of wages to Damodar as well as regarding his attendance as an employee of the bank. Being so merely because the Tribunal has not taken note of those documents while considering the matter cannot render the Award to be illegal when the other cogent evidence on record clearly points out that Damodar had been regularly employed by the bank for the cleaning services and such work was not rendered by any other person. Added to this there was no written agreement regarding the alleged understanding between the petitioners and Damodar. It is unbelievable that the petitioners who are not private parties but a financial institution would engage the services of Damodar without having proper agreement in writing in case his services were utilised in the manner alleged by the petitioners. Being so refusal on the part of the Tribunal to give any credence to the wage register and the muster roll cannot be found fault with. 11.There being no case of any illegality on the part of the Tribunal in passing the Award and as it does not disclose any finding either contrary to the materials on record and/or which can be said to be perverse there is no case made out for interference in the impugned Award and hence the petition fails and is hereby dismissed. The rule is discharged with no order as to costs. 12.At this stage the learned Advocate for the Respondent No.1 states that the back wages were allowed to be deposited in the Court at the time of admission of the petition with liberty to the workman to withdraw the said amount by furnishing security. However on account of failure on the part of the workman to furnish security the said amount could not be withdrawn. As the petition stands dismissed the workman may be allowed to withdraw the said amount. Considering the fact that the petition has been dismissed the learned Advocate for the respondent No.1 is justified in submitting that the workman should be allowed to withdraw the amount. However the same should be allowed to be withdrawn after the expiry of the period of six weeks from today. All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P.S. of this Court as a true copy.