JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. This Writ Petition has been filed by the Union of India, challenging the validity and correctness of the impugned award, passed by the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, U.P. (for short 'C.G.I.T.') in Industrial Dispute Case No. 115/92.
3. The petitioner is a nationalised bank within the meaning of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. It is alleged by the petitioner that respondent No. 2 was engaged as a contractor for supply of water in the Chowk Branch of the Bank at Allahabad for summer months only in April 1987 @ Rs. 5/- per day. The payment was shown as labour charges in the payment vouchers.
4. Respondent No. 2 raised an industrial dispute claiming to have worked on the post of Waterman in the Chowk Branch of the Bank at Allahabad from 8.4.1987 to November 1989 except with artificial breaks. He also claimed that he had worked more than 240 days of service in 12 calendar months.
5. The, Central Government, Ministry of Labour. New Delhi referred the following dispute to the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, U.P. (for short 'C.G.I.T.') where it was registered as Industrial Dispute No. 115 of 1992:
"Whether the claim of Shri Shirish Kumar Srivastava that he is entitled to be reinstated in service of Union Bank of India is justified? If so, to what relief the workman is entitled?"
6. The case of respondent No. 2 before the C.G.I.T. was that he was engaged in the Chowk Branch of the Bank at Allahabad on 8.4.1987 and worked there till November 1989 with artificial breaks; that his services had been illegally terminated in breach of the provisions of Section 25F of the Industrial Disputes Act, though he had continuously worked for more than 240 days of service in a calendar year.
7. The employers came up with a case before the C.G.I.T. that respondent No. 2 was engaged as an independent contractor only to supply water and he was never engaged as Waterman and that he had supplied water for only 16 days in April, 1987, for 26 days in May 1987, for 28 days in June 1987, for 30 days in July 1987 and for 3 days in August 1987. In their written-statement the petitioner had averred that respondent No. 2 was never engaged/appointed as an employee of the Bank and that there was neither any relationship of master and servant or that of employer and employee nor they had any control and supervision over the manner in which he performed the contracted work. It was also their case that the period of work was also not fixed and, as such, he was not under compulsion to be physically present regularly throughout the day, but he had to perform the work of supply of water which was not a contract of service but a contract for service. It was also their case that he had a remedy before the Civil Court and not under the provisions of the Industrial Disputes Act: that the reference had been made mechanically without application of mind and the dispute had been raised only to get employment through such luxury litigation involving no Court-fee.
8. The C.G.I.T. by the impugned award held that respondent No. 2 was employed by the petitioner-Bank as Waterman and that he had completed 240 days of continuous service. The C.G.I.T. also granted the relief of reinstatement to respondent No. 2 with full back wages from the date of order of the reference. The findings of the C.G.I.T. are assailed by the petitioner-Bank on the following three grounds:
(1) The reference was without jurisdiction, vague and imprecise.
(2) The findings of the C.G.I.T. are perverse as the C.G.I.T. has misdirected itself and the finding that respondent No. 2 had completed 240 days is based on no evidence whatsoever.
(3) The burden of proof was on respondent No. 2 to prove his case, which he miserably failed to discharge. On the contra, the petitioner-Bank has fully proved its case by documentary as well as oral evidence.
9. As regards the first contention the Counsel for the petitioner has urged that the order of reference does not disclose any date of alleged termination of the services of respondent No. 2 by the Bank. Further the alleged dispute referred for adjudication also does not show that the C.G.I.T. had to decide whether the termination of the services of respondent No. 2 was legal or justified. The C.G.I.T. had only to decide whether he was entitled for reinstatement in service or not. It is submitted that until and unless the date of termination was given in the order of reference the C.G.I.T. could not give any finding on the question whether the workman had actually worked for 240 days continuously in a calendar year counting backwards and just preceding the date of termination. In support of this contention the counsel for the petitioner has placed reliance upon the decision rendered by the Hon'ble Supreme Court in Mohan Lal v. Management of Bharat Electronics Ltd., 1981 (42) FLR 389 (SC), wherein it has been held :
"It is not necessary for the purposes of Sub-section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of Sub-section (1) his case would be governed by Sub-section (1) and his case need not be covered by Sub-section (2). Sub-section (2) envisages a situation not governed by Sub-section (1). And Sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment"
10. It is apparent from the order of reference, which is appended as Annexure 1 to the writ petition that neither the date of termination has been given in the order of reference nor there is any specific reference for adjudication of termination of service. The reference is with regard to justification of the claim of reinstatement which relief has been sought by him.
11. In so far as the other part of the first contention of the counsel for the petitioner that the reference is vague because the factum of employment and termination itself is in dispute and, as such, the terms of reference could not have been framed so as to presume the employment and its termination confining the reference merely to adjudication of illegality or unjustness thereof as such the terms of reference were not therefore proper is concerned, he has relied upon the decision rendered by the Delhi High Court in Eagle Fashions v. Secretary (Labour) and Ors., 1999 (81) FLR 887 (Delhi. In that case the following reference was made :
"Whether the services of S/Shri Ch. Brijveer Singh, Pradeep Kumar, K.R. Sagar, Sudhir Kumar, Subash Dubey, Mohd. Akbar and Vyas Gupta have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?"
In paragraph 3 of the aforesaid decision in Eagle Fashions it has been held :
"Having heard the learned Counsel for the parties and having perused the material brought on record, we are satisfied that the terms of reference have not been properly drawn up and therefore the order of reference is vitiated. The Full Bench decision of this Court in Indian Tourism Development Corporation v. Delhi Administration, is an authority for the proposition that the terms of reference should clearly spell out the real dispute between the parties and if that be not so, the order of reference would be liable to be interfered with in exercise of writ jurisdiction of this Court as the Labour Court would not travel beyond the reference and decide the real question in dispute."
12. A comparison of the order of reference in Eagle Fashions case (supra) and in the instant case shows that they are worded substantially in similar language. For the reasons given in the aforesaid case I find that the reference in the instant case is vague and not precise as the terms of reference in the case are not clearly spell out the real dispute between the parties as is apparent from the order of reference.
13. The Counsel for the petitioner is support of his second contention submits that there are recruitment rules in the Bank for appointment of employees; that respondent No. 2 was never recruited as an employee of the Bank, hence there was no relationship of master and servant between him and the Bank. Reliance has been placed upon paragraph 1 of the written-statement filed by the employers before the Labour Court in which it is averred that the respondent-workman had supplied water intermittently during the period April 1987 to August 1987 for only 102 days as under for which he was paid @ Rs. 5/- per day :
14. The Counsel for the petitioner also placed reliance upon the statement of the employers' witness to the effect that the respondent was given an oral contract for supply of few buckets of water for which he was paid Rs. 5/-per day and that the workman had worked from April 1987 to August 1987 with intermittent breaks.
15. It is urged that in view of the aforesaid facts respondent No. 2 cannot be considered to be an employee of the Bank by any stretch of imagination as he was only supplying drinking water on contract basis. It is further submitted that neither he continuously worked for 240 days or more nor a day beyond August 1987.
16. With regard to the second contention the Counsel for the petitioner has drawn the attention of the Court to the statement of the employers' witness in support of his contention that the respondent had not supplied water after August 1987 and that there was no post of Waterman. In the cross-examination he has denied the suggestion that respondent No. 2 had not worked as peon after August 1987. Thus the obvious deduction from the aforesaid statement is that respondent No. 2 had not worked as Waterman after August 1987 in the Bank. There is no pleadings or evidence on record regarding appointment of respondent No. 2 as peon after August 1987. The Labour Court has committed an error to hold that the employers' witness had worked after August 1987 and had completed 240 days of continuous service.
17. The Counsel for the petitioner has then placed reliance upon the decision rendered by the Hon'ble Supreme Court in Municipal Corporation, Faridabad v. Siri Niwas, 2004 (23) A.I.C. 690 (SC), wherein it has been held :
"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 25F of the Industrial Disputes Act, 1947 an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied.
The definition of "Continuous Service" is contained in Section 25B of the Act. In terms of Sub-section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for 240 days within a period of one year, he will be deemed to be in continuous service. By reason of the said provision, thus, a legal fiction is created."
18. He has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the Range Forest Officer v. S.T. Hadimani, JT 2002 (2) SC 238, which is also to the same effect as the case of Municipal Corporation, Faridabad (supra). In this case it has been held :
"Whether the burden is on the employee to prove that he had rendered service for 240 days in a year or on the management to prove that the person had not worked for 240 days, since it was the claim of the respondent that he had worked for 240 days which was denied by the management, it was for the respondent to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination."
19. To the same effect is also the decision of the Apex Court rendered in U.P. Avas Evam Vikas Parishad v. Kanak and Anr., 2003 LLR 1 (SC) wherein it has been held :
"D. Industrial Adjudication--Burden of proof to establish that a workman has worked for 240 days in last preceding twelve calendar months--Lies upon the workman--Labour Court on perusal of evidence and through probe came to the conclusion that the termination of the workman has not been illegal--It has to be sustained as confirmed by the Apex Court.
Held: The requirement of the Statute of 240 days cannot be disputed and it is for the workman concerned to prove that he has in fact completed 240 days in the last preceding 12 months period. As noticed hereinbefore, it has been the definite case of the workman concerned whilst at the stage of evidence that he has not worked for 240 days."
20. Sri K.P. Agarwala, learned Senior Advocate, appearing for the respondent has in all fairness conceded the fact that it was for the workman to have established that he had worked for 240 days according to the law laid down by the Apex Court in Municipal Corporation, Faridabad (supra), Range Forest Officer (supra) and U.P. Avas Evam Vikas Parishad (supra).
21. The C.G.I.T. after appreciating oral as well as documentary evidence including vouchers filed by the management as Ext. Ml to M 22 held as under :
"8. ..........In all those vouchers Ext. M-1 to M-22 it has been mentioned that the concerned workman is being given labour charges for supply of water. Had he been given Theka for supply of water it would not have been described as labour charges. Instead it would have been mentioned as contractor as well. Hence I find substance in the case of the concerned workman that he was engaged as a waterman. Accordingly my finding is that concerned workman was engaged as waterman and was not given Theka for supply of water.
9. The concerned workman has stated that he had completed 240 days in a year before his termination. The bank witness has not denied it in any way. Hence, I accept the unrebutted version of the concerned workman and hold that he had completed 240 days in a year. Admittedly he has not been paid retrenchment compensation and notice pay for which he was entitled. Accordingly my finding is that there had been breach of provisions of Section 25F of I.D. Act.
10. Accordingly my award is that termination of the concerned workman as waterman is bad in law and he is entitled for reinstatement at this post with back wages from the date of reference at the rate at which he was paid remuneration per day.
Sd/- B.K. Srivastava 12.1.1998"
22. The witness had been transferred from the Branch on December 1987 itself. This witness of the employers has given contradictory statement. His statement regarding actual working of respondent No. 2 is inconclusive and therefore could not have been relied upon by the Labour Court to arrive at the finding. The workman in his own evidence has stated that he had worked during the period 8.4.1987 to 8.11.1989. In his cross-examination he had denied that he had worked from April 1987 to August 1987 only and stated that he also worked as peon apart from doing the work of Waterman. Except his statement there was no documentary evidence before the Labour Court to arrive at a conclusive finding that the workman had actually and continuously worked for 240 days, i.e., till August 1987 as Waterman and thereafter as peon till 8.11.1987. On the contrary there was evidence in the nature of payment vouchers as well as pleadings from which it was evident that respondent No. 2 had worked intermittently only till August 1987 for supply of water. Thus, there is no evidence worth the name in this case, from which it could have been established that respondent No. 2 had in fact completed 240 days of continuous service from the date of his termination counting backward as per ratio decided by the Apex Court in Mohan Lal's case (supra).
23. There was also no appointment letter or any other document/evidence before the C.G.I.T. to establish that respondent No. 2 had been appointed on the post of Waterman as claimed by him or there was any post of Waterman in the Bank and there was relationship of employer and employee existing between the respondent No. 2 and the Bank. Even if respondent No. 2 worked during the period 8.4.1987 to 8.11.1987 he could have worked only for 214 days including the intermittent breaks, Sundays and holidays. Admittedly, respondent No. 2 was a daily wager and, hence, he could not have worked on Sundays and even otherwise the Bank being closed on Sundays no work could have been taken from him on that day. Besides this, he was not in continuous service as he himself stated in his statement that he was given artificial breaks in service. The employers had vehemently denied that there was any post of Waterman on which he alleged to have worked. They had given details of his actual working as 102 days (excluding breaks, Sundays and holidays). Respondent No. 2 was not able to prove that there was any post of Waterman in the Bank and that he was appointed in the Bank on that post. The C.G.I.T. also has disbelieved that respondent No. 2 had worked as peon in the Bank. The award has been given on the presumption that in the payment vouchers Ext. M-1 to M-22 it has been mentioned that by the same payment was given to the workman towards labour charges for supply of water and had he been given Theka to supply water it would have been described as Theka and not as labour charges in the payment vouchers. There is no factual basis for this presumption. Respondent No. 2 was not paid by the Bank as its employee appointed on a post in accordance with rules but as "labour charges" for work done on contract. The C.G.I.T. has therefore committed an error in holding that he had continuously worked for 240 days or more in a year before his alleged illegal termination. At the most he was daily rated labourer engaged for water supply for drinking purpose by the bank employees in the summer months. He was not appointed against any post and was not an employee of the Bank and there was no contract of service between him and the Bank. It was for the workman to prove and discharge his burden of proof that he had continuously worked for 240 days or more under a contract of service with the Bank. The workmen did not discharge this burden. This fact having admittedly been conceded by the Senior Counsel for the petitioner Sri K.P. Agarwal renders the award illegal. The Labour Court has thus committed an illegality in shifting the burden of proof on the employers.
24. For the reasons stated above, the writ petition is allowed and the impugned award is quashed. No order as to costs.