TMI Blog2005 (3) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... n absence of a statutory interdict, cannot be deprived of his right of appeal. The High Court has passed the judgment upon consideration of the rival contentions raised at the Bar. It arrived at specific findings on the issues framed by it. It has, for the reasons stated in the impugned judgment, affirmed the findings of the Industrial Tribunal as also the learned Single Judge. The impugned order of the Division Bench, in our opinion, by no stretch of imagination, can be said to have been passed with consent of the parties. However, we agree with the opinion of the Tribunal that the plea of abandonment of service by the Respondents in the facts and circumstances of the case was wholly misconceived. For the reasons, aforementioned, the impugned judgments cannot be sustained which are accordingly set aside. The appeals are allowed. - Appeal (civil) 6306-6316 of 2003 - - - Dated:- 14-3-2005 - N. Santosh Hegde, B.P. Singh and S.B. Sinha, JJ. JUDGMENT S.B. SINHA, J: The Respondents herein were Ticca Mazdoors working under the Appellant herein. Ticca Mazdoors are intermittently appointed by the Reserve Bank of India whenever absence of regular Class IV employees takes pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Single Judge where against writ appeals were filed by the Appellant which were marked as WA No. 3700 of 1999 and 5301 to 5310 of 1999. By reason of the impugned judgment dated 25th June, 2002, the Division Bench allowed the said appeal in part modifying the award of the Tribunal as also the learned Single Judge to the effect that the back wages be paid from 23rd July, 1993 instead of their respective dates of retrenchment. The Division Bench, however, gave liberty to the Appellant to hold domestic enquiry against the Respondents for the alleged misconduct committed by them. The Division Bench in issuing the aforesaid direction inter alia held that as the Respondents were not regularized in services for the alleged misconduct of producing false certificates, the same would amount to stigma and loss of confidence of the Appellant in them. Mr. Mahendra Anand, learned senior counsel appearing on behalf of the Appellant would contend that as the Respondents herein did not report for duty between December, 1982 and March, 1987, they must be held to have abandoned their services. The learned counsel would contend that the learned Tribunal committed a serious error of law insofar as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, on the other hand, supported the award of the Tribunal and consequently the judgments of the learned Single Judge and the Division Bench of the Karnataka High Court contending that (i) the Respondents' contentions that they continued in service, from March 1980 to August 1982 as disclosed in their pleadings and representations, having not been denied, the same must be held to have been admitted. (ii) as the Appellant herein could not prove its case that the Respondents had abandoned their services, the Tribunal rightly placed the onus of proof on it; (iii) as despite an order made in this behalf the Appellant did not produce attendance registers, the impugned award could have been passed upon drawing an adverse inference. Reliance in this behalf has been placed on H.D. Singh Vs. Reserve Bank of India and Others [(1985) 4 SCC 201]. (iv) in any event, the Appellant never raised a contention that the Respondents had not worked for more than 240 days during preceding 12 months. (v) the order of the Division Bench being a consent order, no appeal lies there against. (vi) although by reason of the Respondents' being reinstated in service, they would continue to have the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of interview was not raised. If the contention of the Appellant as regard production of transfer certificates by the Respondents at the time of their interview finds acceptance, then concededly the said certificates vis-`-vis the certificates produced by the Respondents in the year 1987 are different in several respects, including the name of the father and name of the school, date of birth, etc. It is true that the certificates produced by them in 1987 were found to be genuine but the same by itself would not lead to a conclusion, as suggested by Mr. Phadke, that the Respondents themselves did not produce the said certificates before the interview board or the same were manufactured by the officers of the Reserve Bank of India. It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer. The employer had no occasion to initiate departmental proceeding against the Respondents. They were not regularly employed. They, according to the Appellant, filed forged and fabricated documents and as such were not found fit to be absorbed in regular service. The effect of a judgment of acquittal vis-`- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court was based on the fact that the prosecution did not produce sufficient material to establish its charge which is clear from the following observations found in the judgment of the criminal court: "Absolutely in the evidence on record of the prosecution witnesses I have found nothing against the accused persons. The prosecution totally fails to prove the charges under Sections 147, 353, 329 IPC." 26. Learned counsel for the respondents in regard to the above contention relied on a judgment of this Court in the case of Capt. M. Paul Anthony. In our opinion, even that case would not support the respondents herein because in the said case the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence, this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. It is to be noted that in that case the finding by the Tribunal was arrived at in an ex parte departmental proceeding. In the case in hand, we have noticed that before the Labour Court the evidence led by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or engaging ticcas." The concerned workmen in their evidence did not specifically state that they had worked for 240 days. They merely contended in their affidavit that they are reiterating their stand in the claim petition. Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore not correct to contend that the plea raised by the Respondents herein that they have worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. It any event the contention of the Respondents having been denied and disputed, it was obligatory on the part of the Respondents to add new evidence. The contents raised in the letters of the Union dated 30th May, 1988 and 11th April, 1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds." Referring to the decision of this Court in Indira Nehru Gandhi Vs. Raj Narain [1975 Supp SCC 1], this Court observed: " 19. Furthermore a party in order to get benefit of the provisions contained in Section 114(f) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so." In Hariram (supra), this Court observed: "11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously." As noticed hereinbefore, in this case also the Respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400] In Siri Niwas (supra), this Court held: "The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. 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 herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment : (i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof; (ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months." It was further observed: "14 As noticed hereinbefore, the burden of proof was on the workman. From the Award it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedent. CIRCUMSTANTIAL EVIDENCE: The Tribunal also relied upon some purported circumstantial evidence to hold that the workmen had completed 240 days of work in the following terms: "That apart, the circumstantial evidence also would show that the plea of the abandonment had been taken by the 2nd party only for the sake of defence in this case and it is not a real one. In order to explain the same when we perused the admitted documents Exs. M1 to M7 together with the admitted evidence of MW3 at para 5 of his deposition, we would see that from 3.3.87 till 11.4.90 either almost all the 1st parties before this Tribunal had continuously requested the management for their reinstatement alleging that they served in the 2nd party Bank continuously from April, 1980 to December, 1982. They also pleaded the same in their respective claim petitions before us. But the management as per Exs. M8 dated 8.5.1991 had not denied the alleged claim of continuous service of the 1st parties at their earliest opportunity. But, on the other hand, Ex.M8 would show that for absorption of the 1st parties the 2nd party had put some other conditions and demanded the 1st parties workmen for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out." The Appellant in para 13.14 of the writ petition contended: "13.14 For that the Industrial Tribunal erred in holding that all the Ticca Mazdoors are workmen as they have compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The terms and conditions of settlement by and between the Reserve Bank of India and the Reserve Bank Workers Federation although not produced before us, the same appear in a judgment of this Court in M.G. Datania Ors. Vs. Reserve Bank of India Anr. [Civil Appeal No. 7407 of 1994, disposed of on 28th November, 1995]; the relevant portion whereof is as under: "Terms of Settlement: (i) The existing arrangement or practice of engaging persons on daily wages purely on temporary and ad hoc basis in Class IV in various cadres shall be discontinued forthwith. (ii) The leave reserve in the case of mazdoors employed in Cash Department shall be increased from the existing level of 15% to 25%. (iii) The leave reserve in other categories in Class IV shall be increased from the existing level of 15% to 20%. (iv) The additional posts that may be created or may arise as a consequence of paragraphs (ii) 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be retrenched in violation of the conditions referred to therein. [See Maharashtra State Cooperative Cotton Growers' Marketing Federation Ltd.(supra). See also Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and others, etc., AIR 1994 SC 1638] In A. Umarani (supra), this Court held: "Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See 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 gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employed intermittently. No proposition of law was laid down in the aforementioned judgments. The said judgments of this Court, moreover, do not lay down any principle having universal application so that the Tribunals, or for that matter the High Court, or this Court, may feel compelled to direct reinstatement with continuity of service and backwages. The Tribunal has some discretion in this matter. Grant of relief must depend on the fact situation obtaining in a particular case. The industrial adjudicator cannot be held to be bound to grant some relief only because it will be lawful to do so. In Haryana State Coop. Land Dev. Bank Vs. Neelam [JT 2005 (2) SC 600], this Court observed: "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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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