# Etawah Kshetriya Gramin Bank v. Presiding Officer, Central Government Industrial Tribunal cum labour court, Kanpur and another

- **Citation:** (2003) 2 ILRA 458
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-04
- **Case number:** Civil Misc. Writ Petition No.33103 of 1997
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/etawah-kshetriya-gramin-bank-v-presiding-officer-central-government-industrial-40122
- **Pages:** 6

## Headnote

Sri V.K. Jaiswal
Sri K.M. Misra
Sri V.K. Agnihotry
Sri U.N. Sharma
S.S.C.
S.C.

Constitution of India Article 226-Practice
and Procedure-Necessity of Recording
the reasons-every authority are bound to
record the reason to justify the test of
fairness.

Held- Para 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 caste 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 arbitrary. Since no
reason has been assigned, as such the
order cannot be sustained.

(B) U.P. Industrial Dispute Act 1947- 2
(5)- workman engaged to work on Daily
wages basis- worked only for 170 daysin exigencies of work-Daily wager held
no Post-can not be awarded the relief of
reinstatement.

Held- Para 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.
Case law Discussed:
1997 FLR 2045
1995 HBD-1
1984 (49) FLR 38 Alld.
1979 (39) FLR 70

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
458
agricultural produce by the petitioner is
clearly for domestic consumption as it is
used by him for manufacturing activity.

16. No doubt the words 'any person
who purchases or stores any agricultural
produce for his domestic consumption' in
the proviso to Section 3 (1) can also mean
a person who grows agricultural produce
and eats it or consumes it himself.
However, in our opinion, the expression
"domestic consumption" in the proviso to
Section
9
(1)
includes
both
the
agricultural producer who consumes his
own production and also the manufacturer
who uses the agricultural produce in his
manufacturing activity-

In Catto v. Plant 137 A. 764, 106
Conn. 236 it was observed:

"The term "domestic" has widely
varying meanings, and while its primary
significance relates to the house or home,
it is often used in a vastly broader sense,
and its significance is determinable with
reference to the subject matter or relation
in which it appears."

17. In United States v. United Verde
Copper Co. 25 S.Ct. 222 196 U.S. 207 it
was observed that the word 'domestic'
may relate to a broader entity than
household. Thus a domestic manufacturer
means not only those of the household but
may also mean those of a country, state or
nation, according to the context.

18. In Louisville & N.R. Co. v.
Railroad Commission of Tennessee 19 F.
679 it was observed that domestic
commerce is commerce which is entirely
within one state.

19. In the New Shorter Oxford
dictionary the word 'domestic' has been
shown to have several meaning e.g. of or
pertaining to one's own country or nation;
not foreign or international indigenous;
made in one's own country, not imported,
etc.

20. In Websers New International
Dictionary among the various definitions
of the word 'domestic' given there one
definition is 'internal'. This is also
mentioned in the Oxford Thesaurus p.
108.

21. In our opinion, the meaning of
'domestic consumption' in the proviso to
Section 9 (1) is 'internal' and is not
limited to 'home'. The petitioner uses the
agricultural produce which he is buying
for internal purpose, that is, for the
purpose of consumption in its factory, and
not for external consumption by some one
else to whom he may transfer the
agricultural produce.

22. In view of the above this petition
is allowed. We hold that the petitioner is
not liable to take licence under Section 9
of the Act. The impugned proceedings are
accordingly quashed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.33103 of 1997

Etawah Kshetriya Gramin Bank ...Petitioner
Versus
Presiding Officer, Central Government
Industrial Tribunal cum labour court,
Kanpur and another
 ...Respondents

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2 All] Etawah Kshatriya Gramin Bank V. Presiding Officer Central Govt. and another
459
Counsel for the Petitioner:
Sri Kushal Kant

Counsel for the Respondents:
Sri V.K. Jaiswal
Sri K.M. Misra
Sri V.K. Agnihotry
Sri U.N. Sharma
S.S.C.
S.C.

Constitution of India Article 226-Practice
and Procedure-Necessity of Recording
the reasons-every authority are bound to
record the reason to justify the test of
fairness.

Held- Para 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 caste 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 arbitrary. Since no
reason has been assigned, as such the
order cannot be sustained.

(B) U.P. Industrial Dispute Act 1947- 2
(5)- workman engaged to work on Daily
wages basis- worked only for 170 daysin exigencies of work-Daily wager held
no Post-can not be awarded the relief of
reinstatement.

Held- Para 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.
Case law Discussed:
1997 FLR 2045
1995 HBD-1
1984 (49) FLR 38 Alld.
1979 (39) FLR 70

(Delivered by Hon'ble 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 Reserved 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
25-B, 25-G and 25-J of the Industrial
Dispute Act, 1947 are not attracted in his
case and also that part time workman is
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
460
not covered within the meaning of Section
2(5) of the Industrial Dispute 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 25-R of the Act after giving a
categorical finding that there is no breach
of Sections 25-G and 25-H 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 worker 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 1997 FLR 2045
Himanshu Kumar Vidhyarthi Vs. State of
Bihar, 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 25(f) 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 22.2.91, but the
workman has neither been reinstated on
the post nor his services have been
regularized with effect from 18.2.1986
inspite of the order dated 29.9.97 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
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2 All] Etawah Kshatriya Gramin Bank V. Presiding Officer Central Govt. and another
461
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, 1998.

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 simply direct
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
462
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 Vs. State of Bihar, 1997
FLR 2045, 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 25-F of
the Industrial Disputes Act, 1947.

11. It is a 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 Vs.
Britannia Biscuit Co. Ltd., 1995 HVD
(1), which was followed in Airtech
Private Ltd. Vs. State of U.P. and
others, 1984(49) FLR 38 (Alld.)and
V.K.Raj Industries Vs. Labour Court
and others, 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
10-B 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
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2 All] National Insurance Co. Ltd. V. The Presiding Officer Central Govt. and another
463
or 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 summon 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
caste 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 arbitrary. 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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.4637 of 1998

National Insurance Company Ltd.

 ...Petitioner
Versus
The
Presiding
Officer,
Central
Government Industrial Tribunal, Kanpur
and another

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Gupta
Smt. Sarita Singh
Sri Satish Chaturvedi

Counsel for the Respondents:
Sri K.P. Agrawal
Km. Suman Sirohi
Sri U.N. Sharma
S.C.

Constitution
of
India-Article
226-
General Insurance (Conduct, discipline &
appeals) Rules, 1975- Service Law-
Removal from Service with direction of
full back-wages-Against award petition
filed-question-Burden to prove lies on
whom?

Held- Burden to prove lies on the party
who
envoke
jurisdiction
of
court-
Petition partly allowed with 50% of the
back wages from the date of reference to
the
date
of
retirement
with
10%
Interest.

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