JUDGMENT Rakesh Tiwari, J.
1. Heard the counsel for the parties and perused the record.
2. The petitioner has filed the present writ petition challenging the award dated 3.7.1997 published on 16.8.1997, Annexure-1 to the writ petition. The petitioner-Bank is the Regional Rural Bank established under the Regional Rural Bank Act. The terms and conditions of the employment of the Bank are Government in accordance with the Bank Services Regulations and the guidelines issued by the Government of India and the Reserv Bank of India.
3. The facts of the case are that respondent No. 2 was engaged as a part-time daily worker in Etawah Kshetriya Gramin Bank, Raja Ka Bagh Branch, Etawah, for doing odd jobs as and when exigency of work required. He was terminated from service with effect from 2.4.1987 and raised an industrial dispute, which was referred to the Central Government Industrial Tribunal, Kanpur, hereinafter referred to as C.G.I.T.
4. The case of the Bank is that respondent No. 2 never worked for 240 days as claimed by him. He had worked only for 170 days. He was neither discharged nor retrenched from service nor he had worked continuously in the Bank, hence the provisions of Sections 25B, 25G and 25J of the Industrial Disputes Act, 1947, are not attached in his case and also that part-time workman is not covered within the meaning of Section 2(5) of the Industrial Disputes Act.
5. The counsel for the petitioner submits that C.G.I.T. had committed an error of law by applying the provisions of Section 25R of the Act after giving a categorical finding that there is no breach of Sections 25G and 25H of the Act. There has been miscarriage of justice by allowing the claim of respondent No. 2, inspite of the aforesaid findings particularly in the circumstances that burden of proof was on respondent No. 2 to prove that he had continuously worked and that termination of his service by the Bank was illegal and as such the award is illegal, void and is without jurisdiction.
6. Apart from the above he has challenged the award basically on the following questions of law :
(1) The impugned award of the labour court is perverse as respondent No. 2 was engaged as a part-time casual labourer by the bank for doing odd job and there was a specific plea that maximum number of days on which respondent No. 2 had actually worked, was 172 days yet C.G.I.T. had allowed the claim of the workman, which is not only against the evidence of record, but the findings also are perverse and are liable to be quashed.
(2) The engagement of a part-time daily wage workers cannot be determined within the meaning of Industrial Disputes Act, 1947, and the claimant-workman has to prove his claim of continuous service which cannot be presumed and the labour court has committed an illegality in relying upon the statement of the workman, which was not supported by any document for drawing adverse inference against the employer.
(3) The service conditions of the employees are governed by the statutory rules and regulations, hence according to the law laid down in Himanshu Kumar Vidhyarthi v. State of Bihar, 1997 (76) FLR 237, the Apex Court held that the Bank is not a factory.
7. The case of respondent-workman is that he was appointed in Kshetriya Gramin Bank, Raja Ka Bagh Branch, Etawah, on class IV post as daily wager on 18.2.1986, but the respondent-bank terminated his services without any rhyme and reason with effect from 2.4.1987 in breach of Section 25F of the Industrial Disputes Act, 1947. The counsel for the respondent-workman submits that from the certificate issued by the Branch Manager of the Branch of Kshetriya Gramin Bank, Etawah, it is clear that he had completed more than 240 days in one calendar year. He further, submits that the services of the employees, who worked 29 hours in a week, have been regularised by the bank on the basis of Central Government order dated 11.3.1990 and R. R. B. Rule 4 (10) dated 22.2.1991, but the workman has neither been reinstated on the post nor his services have been regularised with effect from 18.2.1986 inspite of the order dated 29.9.1997 of this Court, which is as under :
"Admit.
Notice on behalf of respondent No. 2 workman has been accepted by Sri K.M. Mishra, who may file counter-affidavit within six weeks.
List thereafter.
Meanwhile, it is provided that in case petitioner prays to Rakesh Kumar his wages at the rate of his last drawn pay from the date of filing the writ petition and continue to pay the same during the pendency of the writ petition. The operation of the order shall remain stayed. However, it shall be open to the petitioner either to take the work from the respondent-workman or not.
Sd. S.H.A. Raza.
29.9.1997."
8. From the perusal of the award, it appears that the labour court had drawn an adverse inference against the employer in respect of the working days on the ground that the papers like vouchers have not been filed by the employer which could go to show the exact number of working days of the workman. Relying upon the statement of the workman it was by the C.G.I.T. held that the workman completed 240 days in a year preceding the date of termination and had awarded reinstatement of the workman as part-time worker without back wages, as part-time worker :
"(1) The Industrial Disputes Act has been enacted for investigation and settlement of industrial disputes and for certain other purposes, for rights and liabilities of both employer and the employee. The scheme and object of the Act disclose that any industrial disputes can be investigated for settlement of the dispute by the various modes provided under the Act such as conciliation, arbitration, adjudication and settlement.
(2) The Industrial Disputes (Central) Rules, 1957, have been framed in exercise of powers conferred under Section 38 of the Industrial Disputes Act, 1947. These rules also apply to industrial disputes concerning to the Banking or Insurance Companies. Rule 15 of the Rules provides that "A Board, Court, Labour Court, Tribunal or National Tribunal or an arbitrator may accept, admit or call for evidence at any stage of the proceedings before it/him and such manner as it/he may think fit". Under Rules 23 of the Rules A Labour Court/Tribunal has powers of entry and inspection and the Board, Courts, Labour Courts, Tribunal and National Tribunal have the same powers as are vested in a civil court under the Code of Civil Procedure, trying a suit in respect of the matters, namely, discovery and inspection granting adjournment and reception of evidence taken on affidavit. Under Rule 24 of the Rules the Labour Court/ Tribunal also has power to summon and examine any person whose evidence appears to it to be material and shall be deemed to be a civil court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898.
(3) Thus, under the Act both employer and employees can raise industrial dispute and they vested rights and liabilities. It is the duty of the labour court or the Tribunal to act as neutral person and not to be influenced by the C.G.I.T. under the aforesaid Rule framed under the Act, could have summoned any person or any document, which according to it, was relevant for settlement of dispute. It is for the labour court or the Tribunal to give an award on the basis of an adverse inference, as the Industrial Disputes Act is to be read as evidence and is not applicable to the Industrial Disputes Act. It is for this reason that there has been various modes under the Industrial Disputes Act, 1947. If the Labour Court or the Tribunal is of the view that the employee has proved his case by submitting documents, it has to simply direct the Bank to produce the document by not exercising jurisdiction under Sections 23 and 24 of the Act. The labour court has committed illegality on the face of record.
9. Industrial dispute has been defined in Section 2(iii) of the Act is as under :
"In the case of daily paid workman, in the twelve full working days, preceding the date on which the average pay becomes payable if the workman had worked for three complete calendar months or four complete weeks or twelve full working days, as the case may be, and, where such calculation cannot be made, the average pay shall be calculated as the average of the wages payable to a workman during the period he actually worked."
10. In Himanshu Kumar Vidhyarthi v. State of Bihar, 1997 (76) FLR 237, the Apex Court has held that where the daily wage employees are engaged on the basis of need of work, termination of their services cannot be construed as retrenchment. They are at the most temporary employees. In this case the question for determination before the Apex Court as to whether the termination of service of daily wager came within the ambit of retrenchment of the workman under the provisions of Section 25F of the Industrial Disputes Act, 1947.
11. It is, well-settled law that the burden of proof cannot shift on a party at whose instance the dispute is raised. The Apex Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd., 1995 HVD 1, which was followed in Airtech Private Ltd. v. State of U. P. and Ors., 1984 (49) FLR 38 (All) and V.K. Raj Industries v. Labour Court and Ors., 1979 (39) FLR 70 (All), it has been held that the burden of proof has to be discharged by the party, who raised the dispute. The law therefore, is that the case of the workman does not lead evidence and discharges the burden of proof. Therefore, it is the workman, who has to lead evidence and the labour court could not have shifted the onus on the employer. This is the position of law.
12. Further the provisions of Rule 10B of the Industrial Disputes (Central) Rules, 1957, which provides that :
"While referring an Industrial dispute for adjudication to a Labour Court, Tribunal or National Tribunal, the Central Government shall direct the party raising the dispute to file a statement of claim complete with relevant document, list of reliance and witnesses with the Labour Court, Tribunal or National Tribunal within fifteen days of the receipt of the order of reference and also forward a copy of such statement to each one of the opposite parties involved in the dispute."
13. Rule 10 (6) of the Industrial Disputes (Central) Rules, 1957, provides that :
"Evidence shall be recorded either in Court or on affidavit, but in the case of affidavit the opposite party shall have the right to cross-examine each of the deponents filing the affidavit. As the oral examination of each witness proceeds, the Labour Court, Tribunal or National Tribunal shall make a memorandum of the substance of what is being deposed. While recording the evidence the Labour Court, Tribunal or National Tribunal shall follow the procedure laid down in Rule 5 of Order XVIII of the First Schedule to the Code of Civil Procedure, 1908."
14. All this would show that the labour court did not exercise powers vested in it and if any party was not able to produce the documents, which could have been filed, the labour court ought to have summoned those documents for adjudication of the industrial dispute.
15. The recording of reason is a factor constituting an essential component of the principles of natural justice in the eyes of law. It is one of the basic principle of Constitution that the administrative authorities have been empowered and cast the duty to decide an act judicially and it is for this reason that the administrative authority is required to give reasons in its order, so that it may not act arbitrarily. Since no reason has been assigned, as such the order cannot be sustained.
16. No reasons have been given by the labour court in accepting the statement of respondent No 2 that he had completed 240 days of service in one calendar year, when the same was denied by the employer that he had worked only 172 days.
17. Admittedly, the respondent No. 2 was only engaged as a part-time daily worker in exigency of work by the bank. He was not working on any post and as such the labour court has committed an error of law in awarding reinstatement instead of compensation. The findings of the labour court are perverse and cannot be sustained.
18. For the reasons stated above, the writ petition succeeds and is allowed. The impugned award dated 3.7.1997 in so far as reinstatement is concerned, is quashed. The petitioner is directed to pay wages for six months at the rate of last drawn wages with 10% per annum interest to respondent No. 2. No order as to costs.