JUDGMENT
1. The respondent in the writ appeal employed as a casual labour in the year 1982 in Dharwad Depot at KSRTC said to have been terminated from service on 8-6-1987 without any show-cause notice or enquiry and without payment of any retrenchment compensation. Being aggrieved sought the reference of the dispute. Accordingly, the dispute was referred to Industrial Tribunal, Hubli. The appellant strenuously opposed the claim on the ground that the respondent was never in the employment in KSRTC at anytime. Further contended that the KSRTC is a statutory organisation for recruitment and appointment, there are statutory rules, wherein the selection and appointment to the establishment of KSRTC can be made only by inviting applications from General Public and conducting tests and interviews. The appointment of persons on casual basis is said to be not permitted in law. Further contends that the payment of retrenchment compensation does not arise.
2. The Industrial Tribunal, Hubli (hereinafter called in brief ‘Tribunal’) allowed the reference directing reinstatement of the claimant without back wages with continuity of service. The appellant being aggrieved, herein filed the writ petition challenging the order of the Tribunal. The learned Single Judge upheld the order of the Tribunal, confirmed the order of reinstatement. Being aggrieved by the said order the present writ appeal is filed.
3. The Tribunal while accepting the case of the petitioner and granting relief of reinstatement has placed heavy reliance on the documentary evidence Exs. W. 1 to 3 attendance cards. Ex. W. 4 a certificate dated 23-6-1984 issued by the Depot Manager, Dharwad certifying that the respondent is working as a daily wager in the Dharwad Depot and he is suitable for appointment to the post of helper ‘B’ grade and he would discharge his duties sincerely if appointed. Besides that the Trial Court has relied on the statement made in the written statement filed on behalf of KSRTC by the Divisional Controller, Hubli Division, where a statement is made in the following manner.-
“The claimant might have worked in the Dharwad Depot as casual worker to wash the vehicle for 0.50 paise each bus. He cannot have any right to the post in the establishment of the Corporation”.
Apart from the aforesaid documentary material produced Ex. W. 5 is produced which is a receipt issued by the KSRTC Trade Union, acknowledging the receipt of subscription. Ex. W. 6 is the photostat copy of the ESI Card.
4. The respondent has examined himself and has been cross-examined by the Counsel appearing for the appellant-Corporation. No witnesses are examined for the Corporation and no documents have been produced on behalf of the Corporation.
5. Based on the aforesaid documentary material and oral evidence of the respondent and the averments in the written statement of the appellant-Corporation, the Tribunal comes to the conclusion that the claimant workman has proved his case, thus ordered reinstatement.
6. The facts and material placed on record reveal that it is not a bona fide litigation that has come up before this Court for consideration.
7. The cursory and apparent reading of the reasons and discussions made in the judgment may apparently justify the relief granted. But however, a careful scrutiny of the documentary material exposes the perfunctory attitude displayed by the Tribunal in assessing and evaluating the material placed before it. Unless, one has benefit of going through the documents placed on record, the mischief played by the respondent in producing concocted documents cannot be noticed. The Tribunal, which had the ample opportunity to go through the documentary material should have been more careful in appreciating the authenticity and veracity of the documents produced.
8. In the course of the arguments, the Counsel for the respondent conceded to the fact that Exs. W. 1, W. 2 and W. 3 which are the attendance cards cannot be related with the employment of the respondent in KSRTC. Evidently, the said attendance cards pertains to attendance of drivers and conductors. The proforma columns in the said card pertain only to drivers and conductors regarding the name, badge number, designation and the depot in which they are working. Obviously, the respondent not being driver or conductor, the use of said cards to show the attendance appears to be very preposterous. The careful reading of the cross-examination of the respondent also discloses that suggestion has been made that some unused cards have been used to manipulate the attendance particulars of the claimant. However, the suggestion is denied. Nonetheless, there was heavy obligation cast upon the Tribunal to have carefully gone through the evidentiary material placed before it while assessing the worth and veracity of the documents produced.
9. Another document relied on by the Tribunal is Ex. W. 4. The contents of it are extracted hereunder.–
“It is hereby reiterated and made known that Sri B.B. Tabusi presently working as daily wager in KSRTC, Dharwad Depot and that if he is appointed to ‘B’ category he would discharge his duties satisfactorily.
Dharwad Sd/-
Date: 23-6-1984. Depot Manager,
KSRTC,
Dharwad".
The close scrutiny of the said document makes it amply clear that the said document is engineered and manipulated. The reading of the contents of Ex. W. 4 lacks necessary material particulars regarding the period of employment and the other details. The contents are vague and does not suggest or permit any interference, that the workman had worked for 240 days in a year, in order to apply the benefit of retrenchment compensation.
10. The KSRTC is a statutory organization. Any payments made to its employees be it for daily wagers or full-time regular employees, the accounts would be maintained and payment of salary would be borne out by the records. If really, the respondent was the employee as a daily wager paid with remuneration of Rs. 300/- per month, the same would be borne out by the records, and no attempt is made to secure such records to prove the employment and payment of salary as alleged. Merely, because there is no serious contest made by the other side, the Tribunal ought not have blindly accepted the documents produced without applying its mind regarding the genuineness, authenticity and its veracity, more so, when the document is noticeably suspicious.
11. The respondent had marked in evidence before the Tribunal, Ex. W. 6-the photostat copy of the ESI card. During the course of the argument before this Court, the Counsel for the respondent produced the original of the said card. All the material columns in the card are left blank and it is obviously evident that it is also a manipulated document.
12. The adverse averments in the written statement relied on by the Tribunal, if considered carefully, the said averments appears to be only a hypothetical averment made on the conjuncture and not with reference to any existing credible material. The reading of the said averment suggests that it is a casual assumption made by the Divisional Controller without a categorical conviction. The nature of the employment referred to in the averment discloses that the respondent might be working as a casual worker to wash vehicles at the rate of 0.50 paise per bus. It appears to be on a piece-rate basis. On the contrary, the claim of the respondent discloses that he has been working as casual labour on monthly salary of Rs. 300/-. There is no coherence between the two versions. In order to consider the averment as an admission, it should qualify necessary legal requisites. Any pleadings to be used as a admission in evidence, it should be clear and unequivocal sans any ambiguity.
13. In the ruling of the Supreme Court in the case of Nagubai Ammal and Others v B. Shama Rao and Others1, the law relating to admissions has been laid down thus.–
“An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as
the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.
It is no doubt, true that what a party himself admits to be true may reasonably be presumed to be so. But before this rule can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. A statement by a party that certain proceedings were fraudulent and not collusive in character would not be sufficient, without more, to sustain a finding that the proceedings were collusive”.
(emphasis supplied)
In the ruling of M. Manoharan Chetti and Others v M/s. C. Coomaraswamy Naidu and Sons, Madras, the law relating to the admission has been in a lucid way laid down-thus.–
“The law by no means regards admission as conclusive proof of the matters admitted. This is because to a Court of law admissions are but statements which do no more than suggest an inference as to some fact or facts in issue. It is, therefore, important that the Court should examine any given admission inside out to see if it suggest any clear inference on the fact in issue against the party making it. For a Court to draw an adverse inference against a party on the basis of what he is stated to have admitted, the admission must be unequivocal. It must also be comprehensive. It must go the whole-hog, on the point at issue. If a party’s admission falls short of the totality of the requisite evidence needed for legal proof of a fact in issue such an admission would be only a truncated admission. It follows that in such a case, it cannot support a valid judicial determination, unless it be that the Court is in a position to find other evidence before it to make up for the deficiencies in the admission”.
14. In the light of the aforesaid rulings, if the averment in the written statement is considered, it does not qualify in law to be treated as an admission, so as to bind the management of the KSRTC.
15. The Tribunal has failed to take into consideration the very pertinent objection taken by the KSRTC in its statement. The appellant is a statutory body, the rules and regulation of appointment are governed by the statutory regulations. The nature of the posts and cadre strength are all regulated by rules. An appointment can be made only to a existing post or sanctioned post, when there is no post, the appointment to a non-existing post is impermissible in law. The respondent claims to be a casual labour and any person working as a casual labour in Government department, in any of the statutory organisations or in any Government agencies, despite the fact that he completes 240 days of work he cannot claim any right of regularisation. The law has been made very clear by the Supreme Court in the case of Madhyamik Siksha Parishad, Uttar
Pradesh v Anil Kumar Mishra and Others , wherein their Lordships have laid down in para 4 as under:–
“We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days work does not under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service”.
16. With distress, we note that in several cases, in a cavalier manner, the Labour Courts and Industrial Tribunals have been handing out the relief of reinstatement to casual and temporary workman in statutory bodies and governmental organisations, although there is no sanctioned post. Under the garb of exercise of powers under Section 11-A of the Industrial Disputes Act, the Labour Courts and Industrial Tribunals cannot grant the relief of reinstatement amounting to regularisation and appointment to the non-existing post which is otherwise not permitted in law. The provisions of Section 11-A cannot be abused and misused to circumvent the legal provisions relating to selection and appointment to statutory bodies and to the Government Departments and governmental agencies. We strongly feel that the Industrial Tribunals and Labour Courts should be seriously informed about the basic propositions of law in order to avert and avoid handing out illegal regularisation and appointment by way of reinstatement. Henceforth, we sincerely hope and anticipate that such illegal orders would not be repeated by the Labour Courts and Tribunals.
The Registrar General is directed to circulate a copy of the judgment to all the Presiding Officers in the Labour Court and to all the District Judges working in the State.
In view of the reasons and discussions made above, we are of the view that the order of the learned Single Judge as well as the order of the Industrial Tribunal requires to be set aside.
Accordingly, the appeal of the KSRTC in W.A. No. 3449 of 1998(KL) is allowed and the appeal filed by the workman-appellant in W.A. No.
1348 of 1998(L) is dismissed.