JUDGMENT
Arun Madan, J.
1. Bank of Baroda (petitioner) has preferred this writ petition assailing an Award dated January 6, 2000 of the Central Government Industrial Tribunal-cum-Labour Court, Jaipur (for short “the Tribunal”) in CGIT/B-1 5/98 whereby the Tribunal held the termination of respondent No. 2 (Aaram Saini) dated September 8, 1992 as illegal and thus, quashed the termination holding the employee entitled to reinstatement with 50% back wages besides treating him in service without break.
2. The undisputed facts are that an industrial dispute was raised by respondent No. 2 which was referred by the Central Government to the Tribunal in following term of reference –
“Whether the action of the Assistant General Manager, Bank of Baroda, Zonal Office, Anand Bhawan, Sansar Chandra Road, Jaipur is justified in terminating the service of respondent No. 2 Aaram Saini s/o Gangaram Saini part time peon with effect from September 08, 1992: If not, what relief the workman is entitled to?”
3. In his claim petition before the Tribunal, it was the case of the workman that he was appointed as Peon in Branch of the petitioner Bank at Pokhar (Dausa) on June 28, 1989; that he was discharging his duties as Peon but was paid only Rs. 100/- per month; that he continued to work in the Bank upto September 8, 1992 when his services were terminated as he claimed to grant him regular pay scale; prior to his termination/retrenchment one month’s notice so also pay in lieu thereof besides retrenchment compensation was not paid to him, inasmuch, as persons junior to him were retained in service and, therefore, his termination was arbitrary being in violation of provisions contained in Section 25-F of the Industrial Disputes Act, against which he had also filed SB Civil WP No. 743/1993 but this Court by its order dated November 01, 1996 dismissed his petition on the ground of alternative remedy available to him. However, he raised an industrial dispute before the Conciliation Officer whereunder the petitioner Bank in its reply asserted that the workman was assigned the work of cleaning and making available drinking water by filling up the pitchers at the rate of Rs. 100/- per month as a part timer as his said work was not of more than an hour a day, inasmuch as his job was not of permanent nature. In reply the petitioner Bank asserted that the workman though worked as a full time peon but against leave vacancy only for 78 days and that apart he never worked for 240 days in the Bank at a stretch as is required under the Industrial Disputes Act to hold him a workman so as to be entitled to the benefit of Sections 25-F and 25-G, which in case of the respondent No. 2 was considered to be inapplicable.
4. After having examined the documents produced in evidence by both the parties, their witnesses, the learned Tribunal passed the impugned Award on January 6, 2000 (Annexure 7) holding that as per failure report the services of respondent No. 2 as a full time employee for 78 days and for remaining period as a part time employee and, therefore, the workman served the Bank for 240 days in a preceding year and ultimately holding his termination in violation of Section 25-F of the Industrial Disputes Act, the workman was directed to be reinstated with 50% back wages by treating his service as continuous. Hence, this petition.
5. At the very threshold, Shri R.K. Kala, learned counsel for the petitioner Bank contended that before the Conciliation Officer so also the learned Tribunal, the workman has changed his case by pleading different facts before the competent Courts or forum because in his earlier writ petition before this Court, in para 2 the workman himself admitted that he was engaged on June 20, 1989 as a part time Class IV employee in the Bank for cleaning the office building and for filling the water and other jobs while in para 4 he further admitted that since the beginning of the Branch in June, 1989 till September, 1992, he worked more than 90 days for which he was separately paid, inasmuch as he had produced a statement showing his 94 days working (Annexure 2) besides other documents (Annexures 3 to 5), according to which he admitted that he was working as a part time employee and he claimed his reinstatement as a part timer in the Bank.
6. As regards merits, Shri Kala reiterated the Bank’s stand taken in its reply to the workman’s claim, and added that the respondent No. 2 was never engaged as a permanent employee on any vacant substantive or temporary post of Class IV employee but his engagement with the Bank was only for cleaning and filling of the water as a part timer and such a job was only for an hour a day therefore, he was being paid only Rs. 100/- per month and that apart he had never been continuous in service because he used to remain absent several times from such an hour’s job a day and in other words, the workman never continuously worked for 240 days preceding year nor continuously served daily during office hours of the Bank, nor he was appointed after due process of selection as prescribed for under the Service Rules of the Bank by way of advertisement or through employment exchange, that too against substantive/ temporary or ad hoc vacancy of the post of Class IV employee. Therefore, according to Shri Kala, the question of regularisation or treating the workman in continuous service does not arise and keeping in view nature of work assigned to the workman and payment made therefor, the respondent No. 2 has wrongly been held by the Tribunal as workman as a protective cover and entitled to the benefits under the Industrial Disputes Act.
7. Per contra, Shri B.L. Gupta learned counsel for the respondent No. 2 supported the conclusions arrived at by the Tribunal but. vociferously contended that whatever contentions raised in this petition are mere sort of new pleas which were never raised either before the Conciliation Officer or the Tribunal and for the first time they have been raised before this Court, which cannot be allowed by invoking writ jurisdiction, viz, that the reference made by the Government was bad in law and the Tribunal has travelled beyond the scope of reference. Next contention was that in fact the petitioner Bank has assailed finding of fact in this writ petition which cannot be disturbed by this Court in its extraordinary jurisdiction. As regards the contention of the Bank that the respondent No. 2 being a part time employee does not fall within the definition of “workman”, Shri Gupta cited decisions of this Court in Yashvantsingh Yadav v. Rajasthan State 1991-I-LLJ-501 and Kanhaiyalal v. State 1994-II-LLJ-474. Shri Gupta has referred to various decisions in support of his contentions so also to the interference in the findings of fact, besides in replica to the contentions of the petitioner Bank.
8. Though the matter had come up on the application of the respondent No. 2 moved under Section 17-B of the Industrial Disputes Act but at the joint request so also in the interest of justice the matter was heard on merits of the writ petition itself. Upon having heard the learned counsel for the parties and considered their rival contentions and the decisions cited at the Bar with reference to the cases, it is not in dispute that the fate of this petition hinges only on the controversy raised as to whether the respondent No. 2 was a workman within the definition provided under the Industrial Disputes Act in the facts and circumstances of the case.
9. To prove his 240 days of work in apreceding year, the workman has merely fileda statement (Annexure 2) and his affidavit. Bethat as it may, it is an admitted fact on his partthat he worked intermittently to do work ofcasual nature i.e. to fill up the water pitchersand to clean the office rooms, and not the workconnected with the work of Bank, inasmuch asfrom the statement produced by the workman, it stands established that he never continuouslyworked, rather in each month during which heserved the Bank, he attended the Bank eitherfour or sometimes five days but admittedly heused to work casually and intermittently i.e. two or three days in a week, and for the rest of days either in a week or month in a precedingyear to the reference of the dispute, heremained absent and did not work, nor forwhich he explained anything in his evidencebefore the Tribunal. Thus viewed, therespondent workman cannot be held to haveworked for 240 continuous days in a yearwithout interruption.
10. Further the burden of proof being onthe workman to establish the relationship ofemployer and employee, an adverse inferencecannot be drawn against the employer that if hewere to produce accounts books, they wouldhave proved their relationship as employer and employee. My view is fortified from thedecision in N. C. John v. TTS & CE WorkersUnion 1973-I-LLJ-366 (Ker-DB). Moreoverthe workman had not applied for before theTribunal to call for the necessary documents to be produced by the Bank to prove his case of240 days continuous work. Hence the Tribunalerroneously drew the adverse inference againstthe bank.
11. It is equally settled law that even for the Class IV employees recruitment according to Rules is a pre-condition. The Court cannot give any directions to re-engage them in any other work or appoint them against existing vacancies, otherwise, the judicial process would become other mode of recruitment de hors the rules. My view is fortified from the decision of the Apex Court in State of Himachal Pradesh v. Suresh Kumar Varma AIR 1996 SC 1565 : 1996 (7) SCC 562, wherein it has also been observed that the appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back door entry, detriment to the efficiency of service and would breed seeds of nepotism and corruption.
12. Moreover, unless a person is appointed on regular basis according to Rules after consideration of the claims on merits, there is no question of regularisation of the services without break, as directed by the. Tribunal in the instant case. My view is fortified from the decision in Union of India v. Bishamber Dutt 1996 (11) SCC 341 :1997-II-LLJ-381, wherein also admitted position was that the employees were receiving the consolidated pay of Rs. 500/- per month but the Central Administrative Tribunal directed to regularise the service, against which the Apex Court allowed the appeals of the Union of India and set aside the direction of regularisation. Even in Himanshu Vidyarthi v. State of Bihar1998-II-LLJ-15 (SC), the employees were also not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work, the Apex Court held their diengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act.
13. In State of U.P. v. Ajay Kumar 1997-II-LLJ-1204, the employee appointed on, daily wage basis on February 14, 1985 as Class IV employee, Nursing Orderly in the Medical College by the Medical Superintendent, filed a writ petition which was dismissed by the learned single Judge, against which the Division Bench gave direction for, regularising his service but the Apex Court observed that there should exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the
post. The Apex Court further observed that Daily wages appointment would be obviously in relation to contingent establishment and continues so long as the work exists and, therefore, the direction of the Division Bench was held illegal and appeal was allowed.
14. Be that as it may, the appointments on the post of Class IV employees in the Bank are regulated by statutory rules and the engagement of respondent No. 2 being not in accordance with rules but was of casual nature for intermittent periods cannot be construed as a regular appointment so as equate him with regular employees of the Bank for being entitled to regular pay scales and benefits, and therefore, the concept of industry to that extent stands excluded and, therefore, his disengagement from temporary work of the Bank on daily wages or monthly consolidated pay cannot be construed as retrenchment. I lent support from the decision of the Apex Court in H.K. Vidyarthi v. State of Bihar (supra) 1998-II-LLJ-16 at p. 16:
“2… Every department of the Government cannot be treated to be “industry”. When the appointments are regulated by the statutory rules, the concept of “industry” to that extent stands excluded. 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. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of “retrenchment”, therefore, cannot be stretched to such an extent as to cover these employees. Learned counsel for the petitioner seeks to contend that in the High Court, the petitioners did not contend that it is a case of retrenchment but termination of their services is arbitrary. Since they are only daily wage employees and have no right to the posts, their disengagement is not arbitrary”.
15. The casual employment of therespondent No. 2 being on a day to day ormonthly basis but only for an hour work a day, for which statutory rules are not required to be followed, rather was in disregard of all rules and was thus casual in nature for limited work not connected with the Banking, this daily work of casual nature came to an end every day after only one or two hours, and there was fresh engagement every next day of job and on the return of respondent No. 2 to work in the Bank, therefore refusal to employ him from a particular day did not amount to retrenchment so as to attract Section 25-F of the Industrial Disputes Act. In my view, the Tribunal was not legally right to hold that the respondent No. 2’s termination from services was unlawful and unjustified. It was only a refusal to employ further. Thus, casual workers like the respondent No. 2 cannot be allowed to enter regular service through back door, and the Tribunal cannot be allowed to be used as a legal means for supporting such back door entry.
16. In Range Forest Officer v. S.T. Hadimani 2002(3) SCC 25 : 2002-I-LLJ-1053, the workman claimed that he had worked for 240 days and services were terminated without paying retrenchment compensation whereas the employer denied workman’s having worked for 240 days. Therefore, the Apex Court held that the Tribunal was not right in placing onus on the management without first determining that the workman had worked for 240 days in preceding year and that the claimant has to lead evidence to show that he had worked for 240 days in preceding year by producing receipt of salary or wages or letter of appointment because mere filing of affidavit by claimant is not sufficient evidence as it is his own statement and thus the award of Tribunal was set aside. The Apex Court held as under at p. 1054 of LLJ :
“2…. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.”
17. Filing of his affidavit and statement (Annexure 2) cannot be regarded as sufficient evidence. No proof of receipt of salary or wages for 240 days as produced by respondent No. 2, who also failed to prove that he had worked for 240 continuous days in a preceding year without interruption, therefore, in my view he would not be entitled to claim benefit of Section 25-F of the Industrial Disputes Act. On this ground alone, the award is liable to be set aside and having regard to the decisions of the Apex Court (supra), the question of affirmance of the impugned Award cannot and does not arise.
18. I have perused the decisions cited by the learned counsel for the respondent No. 2 ratio decidendi whereof is not at all attracted to the facts and circumstances of the case nor the principles laid down therein render any help to the respondent No. 2 in advancing his case especially when the contentions urged on his behalf are devoid of any merit in view of the decisions of the Apex Court referred to above, which are squarely applicable to the instant case.
19. Resultantly, this petition succeeds. The impugned Award stands set aside and quashed. No order as to costs.