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Judgment
KIRTI SINGH, J. (Oral)
The present writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of the Award dated 23.02.2016 (Annexure P-1) passed by the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-I, Chandigarh, in Reference ID No.139 of 2013, whereby the reference has been answered against the petitioner-workman, holding her not entitled to any relief.
As per the pleaded case, the petitioner was engaged by respondent Nos.2 and 3-Bank as a Sweeper with effect from 06.10.2005 and continued to work as such up to 24.01.2012, when her services were illegally terminated despite her having completed more than 240 days of continuous service in every calendar year. An industrial dispute was consequently raised, wherein the learned Tribunal, upon appreciation of the pleadings and evidence led by the parties held that the petitioner had failed to prove that she was engaged by the Bank against a sanctioned post, or that she had completed 240 days of continuous service, as required to claim the benefit of Section 25-F of the Industrial Disputes Act, 1947. Aggrieved thereby, the petitioner has approached this Court by way of the present writ petition.
Learned counsel for the petitioner submits that the learned Tribunal has failed to appreciate that MW-1 categorically admitted in his cross-examination that he was not aware whether the petitioner had regularly worked with the Bank during the relevant period, which admission remained unrebutted; and that the entire relevant record was in the custody of the respondent-Bank, which failed to produce the same, thereby warranting an adverse inference against it. It is submitted that, in these circumstances, the finding recorded by the learned Tribunal that the petitioner failed to prove her case, is perverse and contrary to the material on record, and that the impugned Award deserves to be set aside.
Learned counsel for respondents No.2 and 3, on the other hand, supports the impugned Award and submits that the petitioner was engaged only as a temporary Sweeper, as and when required, i.e. once or twice in three months, and was paid for the work actually done. It is further submitted that in the enquiry undertaken with reference to the missing documents displayed on the notice board of the Branch, the petitioner admitted her guilt where after she was never called for any cleaning work. Reliance is also placed upon the report of the concerned investigating officer in a false criminal complant which was got lodged by the petitioner to submit that the allegations of sexual harassment levelled against officials of the Bank were also found to be false. It is further submitted that, even otherwise, on merits, the findings recorded by the learned Tribunal, being based on a correct appreciation of the evidence, call for no interference.
I have heard learned counsel for the parties and perused the record.
A gainful reference can be made to the proposition of law as discussed by the Hon'ble Supreme Court in Civil Appeal No.6511 of 2005 titled as Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, relevant paras whereof reads thus:-
"8.As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act). Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of nonrenewal of the contract of employment; or iv) termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee; that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely”-XXXX XXXX XXXX”
It is well settled that the preliminary burden to prove the relationship of employer and employee, as also completion of 240 days of continuous service, lay upon the petitioner. In the present case, the sole material relied upon by the petitioner to discharge the said burden is the statement of MW-1 in his cross-examination that he was not aware whether she had regularly worked with the Bank during the relevant period. However, the same could not, by itself, suffice to discharge this burden, particularly when the petitioner had even failed to place on record the alleged appointment letter issued to her by the respondent-management, as claimed by her.
So far as the plea regarding non-production of record by the Bank is concerned, it is a matter of record that the petitioner did not summon the attendance or wage record from the Bank, nor did she otherwise place any documentary material on file to substantiate her claim of regular and continuous engagement. In the absence thereof, and having regard to the specific stand of the Bank, duly supported by the deposition of MW-1, that the petitioner was engaged only intermittently, as and when required, and paid on a per day basis, the finding recorded by the learned Tribunal that the petitioner failed to prove either the existence of a regular relationship of employer and employee, or completion of 240 days of continuous service, cannot be said to suffer from any perversity or infirmity warranting interference.
It is well settled that this Court, while exercising supervisory jurisdiction under Articles 226/227 of the Constitution of India over awards of Labour Courts/Industrial Tribunals, does not sit in appeal over findings of fact, nor does it re-appreciate the evidence to test whether a different view was possible; interference is warranted only where a finding is shown to be perverse, based on no evidence, or vitiated by an error of law apparent on the face of the record. Learned counsel for the petitioner, despite his able assistance, has been unable to point to any such infirmity in the impugned Award. The findings recorded by the learned Tribunal are based on a fair appreciation of the evidence on record and call for no interference.
In view of the aforesaid, no ground is made out warranting interference with the impugned Award dated 23.02.2016 (Annexure P-1) in exercise of the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India.
Consequently, finding no merit in the present writ petition, the same is hereby dismissed.
Pending miscellaneous application(s), if any, shall also stand disposed of.