TaxTMI 
TaxTMI 
2005 (3) TMI 723
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....espondents herein, except Respondent No. 6, were interviewed on different dates between January, 1982 and May, 1982. Allegedly, during interview, they produced transfer certificates but their answers to the questions posed in this behalf were not in conformity therewith, whereupon a verification was made and it was found that the said certificates were forged and fabricated. Three first information reports were lodged by the officers of the Appellant herein for furnishing false certifications by the Respondents. In the criminal case, however, they were acquitted by three different judgements passed on 20th April, 1987, 5th August, 1987 and 24th September, 1987. Between October, 1987 and August, 1988, the Respondents submitted fresh school transfer certificates and requested the Appellant herein to reemploy them. As their request for reemployment was not accepted, an industrial dispute was raised resulting in a reference made by the Central Government for adjudication thereof to the Central Government Industrial Tribunal, Bangalore. The Industrial Tribunal by an award dated 18.12.1997 held that the Respondents having completed 240 days of service; and their terminations having been ....
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....egedly completed 240 days of work, the same by itself would not confer any right on them to be regularized in service. Reliance in this connection has been placed on Maharashtra State Cooperative Cotton Growers' Marketing Federation Ltd. and Another Vs. Employees' Union and Another [1994 Supp. (3) SCC 385] The learned counsel would submit that no adverse inference could have been drawn for non-production of attendance register as sufficient explanation therefor had been furnished. Reliance in this connection has been placed on Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195]. It was further urged that the burden of proof in that behalf lay upon the Respondents and in support thereof reliance has been placed on M.P. Electricity Board Vs. Hariram [(2004) 8 SCC 246]. The Tribunal, according to Mr. Anand, misdirected itself in passing the impugned award insofar as it considered irrelevant factors and failed to take into consideration the relevant facts. The learned counsel has further placed before us some school transfer certificates produced by some of the Respondents in December, 1982 and March, 1987 with a view to show that the action taken by the Appella....
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....ehalf has been placed on The State Bank of India Vs. Shri N. Sundara Money [(1976) 1 SCC 822], H.D. Singh (supra), Management of M/s. Willcox Buckwell India Ltd. Vs. Jagannath and Others [(1974) 4 SCC 850], L. Robert D'Souza Vs. Executive Engineer, Southern Railway and Another [(1982) 1 SCC 645], Samishta Dube Vs. City Board, Etawah and another [1999 Lab. I.C. 1125] and Moolchand Kharati Ram Hospital K. Union Vs. Labour Commissioner and Others [2000 (2) LLJ 1411]. STATUS OF TICCA MAZDOORS: As noticed hereinbefore, Ticca Mazdoors are not regarded as regular Mazdoors. Two waiting lists are maintained by the appellant. The first waiting list contains the names of such Mazdoors who may be appointed as regular Mazdoors whereas the second list is maintained for those who are to be engaged as Ticca Mazdoors. The service of Ticca Mazdoors being not permanent in nature can be dispensed with subject to compliance of the statutory or contractual requirements, if any. Their status is not higher than that of a temporary workman or a probationer. (See Civil Appeal No. 4868 of 1999, Karnataka State Road Transport Corporation & Another Vs. S.G. Kotturapp & Anr., disposed of on 3rd March, ....
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....orary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money." Recently in Krishn....
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....that the Labour Court is not bound by the findings of the criminal court." In Cholan Roadways Limited Vs. G. Thirugnanasambandam [2004 (10) SCALE 578], this Court held: "19. It is further trite that the standard of proof required in a domestic enquiry vis-`-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative." The contention that the Respondents had not produced such certificates or the same have been fabricated at the instance of some officers of the Reserve Bank of India, therefore, does not find our acceptance. It is rejected accordingly. SECTION 25F OF THE INDUSTIRAL DISPUTES ACT: The provisions contained in Section 25F of the Industrial Disputes Act are required to be complied with if the workmen concerned had completed 240 days of service in a period of 12 months preceding the order of termination. The Tribunal admittedly based its decision on the following: (i) The Appellant did not produce the attendance register. (ii) There was circumstantial evidence to show that the....
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....ber, 1982 in respect of the first party workmen and attendance register. The Tribunal, however, in its award noticed the explanation of the Appellant that the attendance registers being old and hence could not be produced holding: "Of course, it is true that the 2nd party had given an explanation namely those attendance registers are very old and hence could not be produced. But this explanation cannot be acceptable, because as I pointed out earlier, apart from the attendance registers, there may be other relevant records to show that the 1st parties either worked continuously as alleged by the 1st parties or only during the leave vacancy with break of service." The learned Tribunal further held: "Therefore, the materials placed before this Tribunal lead to the only conclusion that the 2nd party is not in a position to prove their case namely the concerned 1st parties 1 to 11 had abandoned themselves without any proper reasons." An adverse inference, therefore, was drawn for non-production of the attendance register alone, and not for non-production ....
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.... that the burden of proof was upon the Appellant on the premise that they have failed to prove their plea of abandonment of service stating: "It is admitted case of the parties that all the 1st parties under the references CR No. 1/92 to 11/92 have been appointed by the 2nd party as ticca mazdoors. As per the 1st parties, they had worked continuously from April, 1980 to December, 1982. But the 2nd party had denied the above said claim of continuous service of the 1st parties on the ground that the 1st parties has not been appointed as regular workmen but they were working only as temporary part time workers as ticca mazdoor and their services were required whenever necessary arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the 1st party, since the 2nd party had denied the above said claim of continuous period of service, it is for the 2nd party to prove through the records available with them as the relevant records could be available only with the 2nd party." The Tribunal, therefore, accepted that the Appellant had denied the Respondents' claim as regard their continuous ....
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....evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case." Yet again in Hariram (supra), it was opined: "10 We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants. Mr. Phadke placed strong reliance on H.D. Singh (supra) to contend that adverse inference was drawn therein for non-production of certain documents. H.D. Singh (supra) was rendered on its own fact. I....
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....tions and demanded the 1st parties workmen for their signature if they agreed for those conditions. If that be the case, it could be seen that, at the earliest point of time, the 2nd party Bank had not denied the said claim of continue service made by 1st parties. Hence, the documents Exs. M1 to M8 would also disqualify the 2nd party from claiming said plea namely since because the 1st parties had worked temporarily that too only on leave vacancy they are not entitled for any benefits under the provisions of the I.D. Act." It is difficult to accept the logic behind the said findings. Only because the Appellant failed to prove their plea of abandonment of service by the Respondents, the same in law cannot be taken to be a circumstance that the Respondents have proved their case. The circumstances relied upon, in our opinion, are wholly irrelevant for the purpose of considering as to whether the Respondents have completed 240 days of service or not. A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove t....
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....p; "13.14 For that the Industrial Tribunal erred in holding that all the Ticca Mazdoors are workmen as they have completed 240 days of continuous service during the year 1980-1982, merely because the Petitioner could not produce the attendance registers for the relevant period as the same being old, and destroyed after expiry of its stipulated period of preservation of 5 years were not available with the Petitioner Bank." Neither the learned Single Judge nor the Division Bench adverted to the said question at all. The learned Single Judge without considering the contentions raised by the Appellant held: "The Tribunal has extensively dealt with the points of dispute relating to justification of the Bank in terminating the services of the workmen. In paragraphs 16 to 49 the Tribunal has elaborately discussed facts, evidence and the material placed on record with reference to the case laws relating to 'retrenchment'. In this view of the matter, it is wholly unnecessary to refer Mr. Padke, learned counsel for respondents 1 to 11. The Tribunal has recorded a finding that the action of the Bank amounts t....
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....) and (iii) above, together with existing vacancies, if any, shall be utilized for giving (a) full time employment to part-time employees to the extent possible and (b) regular full-time or part-time employment, as the case may be, to the ticcas who have rendered continuous service of three years or more as on 19th November, 1992. However, if the number of available vacancies at a particular centre is less than the number of such ticcas at that centre to be given regular full-time/ part time appointments, the ticcas in excess of the available vacancies at that centre shall have to move at their own cost to another centre where vacancies are available after absorbing eligible ticcas at that centre on a returnable basis as and when vacancies arise in the parent centre. Such repatriation being in the nature of request transfer shall be at their own cost and also subject to usual terms and conditions prescribed in respect of request transfers. Such of the ticcas who are not willing to the above arrangements shall have no claim to be absorbed in the Bank. (v) The Federation shall not under any circumstances insist on engagement of ticcas on daily wage basis for carrying out Bank's wo....
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.... State of H.P. Vs. Suresh Kumar Verma and Another, (1996) 7 SCC 562)." Yet again, in Executive Engineer, ZP Engg. Divn. And Another Vs. Digambara Rao and Others [(2004) 8 SCC 262] this Court held: "It may not be out of place to mention that completion of 240 days of continuous service in a year may not by itself be a ground for directing an order of regularization. It is also not the case of the Respondents that they were appointed in accordance with the extant rules. No direction for regularization of their services was, therefore, could be issued." Furthermore, a direction for reinstatement for non-compliance of the provisions of Section 25F of the Industrial Disputes Act would restore to the workmen the same status which he held when terminated. The Respondents would, thus, continue to be Ticca Mazdoors, meaning thereby their names would continue in the second list. They had worked only from April, 1980 to December, 1982. They did not have any right to get work. The direction of continuity of service per se would not bring them within the purview of terms of settlement. Even in the case of a statutory corporation in S.G. ....
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....nbsp; "It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub silentio." OTHER CONTENTIONS: We have noticed hereinbefore that the Appellant herein raised a specific plea denying or disputing the claim of the Respondents that they had completed 240 days of work. Such a plea having been raised both before the Industrial Tribunal as also before the High Court, we cannot accept that the Appellant had abandoned such a plea. Even in this Special Leave Petition, it is contended: "(3)For that the High Court ought to have held that the disengagement of the Ticca Mazdoors (Respondents), who were daily wage casual....