CENTRAL BANK OF INDIA Vs. INDUSTRIAL TRIBUNAL ALAPPUZHA

JUDGEMENT

(1.) PETITIONER challenges Ext. P3 award. By Ext. P3 award the tribunal had found that the retrenchment effected in the case of the second respondent was violative of Section 25f of the Industrial Disputes Act. It was found that she was entitled to notice pay and compensation at that time as stipulated in Section 25f of the Act and it is also to be concluded that she would deem to be in service till her service is validly terminated. However the tribunal declined the claim for regularisation. In Ext. P3 the Tribunal has found interlia as follows: "from the evidence adduced by the worker herself one thing is clear. Her claim that she was in continuous employment from 24. 11. 1982 is of no basis. The evidence tendered by her is to the effect that in 1984 she had worked only three or five days and thereafter she was called only in the year 1991. The possibility is only for her employment after the date of relieving of K. Vijayamma on 31. 1. 1994. Therefore for the period upto 31. 1. 1994, the chances for casual employment were only for few days that too when regular incumbents were on leave. But there was every chance for her continuous employment from 1. 2. 1994 to 10. 9. 1996, because, during that period there was no regular incumbent. The fact that there was no regular incumbent is clearly stated by the management in their written statement itself. In that situation the only conclusion possible is that there was every probability of her being in employment for the period from 1. 2. 1994 to 10. 9. 1996. Because, it is very difficult to presume that the branch was managing without a Sweeper for about 2 and a half years. The total number of vouchers produced by the management were of relating to only 70 in respect of the period from 1993 to 1996. Even assuming that some other persons were also casually employed, that can be only for a lowest minimum number of days. It is quite impossible for a bank to funct on without any sweeping work for such a long time. Therefore in the absence of a regular hand there was every possibility of employing someone temporarily from 1. 2. 1994 to 10. 9. 1996. Even the few vouchers produced by the management do not support their case. Hence the worker concerned might have worked in between 1. 2. 1994 and 10. 9. 1996. In such a situation, the termination effected in her case can only be declared as illegal and that is in view of the fact that there was every possibility of her satisfying the specified condition of service stipulated in Sec. 25-F on account of her work in between 1. 2. 1994 to 10. 9. 1996. In that case the retrenchment effected in her case was violative of sec. 25-F of the I. D. Act. As a necessary corollary it is also to be concluded that she would deem to be in service till her service is validly terminated. However her claim for regularisation in service cannot be sustained. "

(2.) LEARNED counsel for the petitioner Sri. Sidharthan would submit that this is a clear case where the second respondent has failed to prove that she had worked for 240 days. He would emphasise that a mere perusal of the award would show that the award is premised on conjectures. He relied on the decisions of the Apex Court reported in H. U. D. A. v. Jagmal Singh (2006 (3) LLJ 152) and in Municipal Corporation, Faridabad v. Siri Niwas ( (2004) 8 SCC 195 ). In Municipal Corporation, Faridabad's Case the court held as follows: "it is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. " He also relied on the decision of the Supreme Court reported in Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan ( (2004) 8 SCC 161), wherein the court held as follows: "it was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked upto 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S. T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. Even if that period is taken into account with the period as stated in the affidavit filed by the employer, the requirement prima facie does not appear to be fulfilled. The following period of engagement which was accepted was 6 days in July 1991m 15-1/2 days in November 1991, 15-1/2 days in january 1992, 24 days in February 1992, 20-1/2 days in March 1992, 25 days in april 1992, 25 days in May, 1992, 7-1/2 days in June 1992 and 5-1/2 days in july 1992. The Labour Court demanded production of muster roll for the period of 17. 6. 1991 to 12. 11. 1991. It included this period for which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days without indicating as to the period to which period these 240 days were referable. "