# Mohd. Wazid v. The Presiding Officer Cen. Govt. & Anr

- **Citation:** (2015) 1 ILRA 448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-15
- **Case number:** Writ-C No. 46759 of 2014
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-wazid-v-the-presiding-officer-cen-govt-anr-43190
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Rejection of
claim-for back wages mainly on groundworkman failed to proof of working for
certain period-while petitioner workman
already moved to summon the record and
also vehemently pressed-but no order
passed-held-in view of 'Director fisheries
Terminal Department'-award-unsustainablematter remitted back for fresh consideration.
Held: Para-8
I find that that the petitioner has
pressed his application for summoning of
the relevant document, however, the
respondent No.1 did not pass any order
on the said application and merely
observed in concluding paragraph No.23
of the impugned award that "I do not
find that there is any malafide intention
of the opposite party in withholding the
records because the opposite party, their
witnesses have specifically stated that
the workman did not work during the
period 2005-06." Thus the respondent
No.1 merely relied upon the allegations
made by the Respondent No.2. No
reasons have been assigned by the
Respondent
No.1
for
the
aforesaid
conclusion. The Respondent No.1 should
have considered the application of the
petitioner for summoning of the records
and
should
have
directed
the
Respondent no.2 to produce the records
in
evidence.
The
action
of
the
Respondent No.2 in not doing so cannot
be sustained in view of the law laid down
by Hon'ble Supreme Court in the cases of
Director, Fisheries Terminal Department
(supra) and R.M. Yellatti (supra).
Case Law discussed:
(2011) 2 SCC (L & T) 153; (2010) 1 SCC (L &
T)1 , (2010) 1 SCC 47.

## Text

448
 INDIAN LAW REPORTS ALLAHABAD SERIES
Further, in the case of Alexandar Pal Singh
v. Divisional Operating Superintendent,
1987 (2) ATC 922 (SC), the Supreme Court
held that ordinarily the Court or Tribunal
cannot interfere with the discretion of the
punishing authority in imposing particular
penalty but this rule has an exception. If the
penalty imposed is grossly disproportionate
with the misconduct committed, then the
Court can interfere. The railway employee
on being charged with negligence in not
reporting to the railway hospital for treatment
was removed from service. The Supreme
Court found it fit to interfere with the
punishment of removal from service and
modified
it
to
withholding
of
two
Increments.
20. A Division Bench of this Court
in the case of Suresh Kumar Tiwari v.
D.I.G., P.A.C. and Anr., 2001 (4) AWC
2630, 2002 Lab IC 259, has, while
reiterating the view of the Supreme Court,
held that the High Court normally does
not interfere with the quantum of
punishment unless the punishment shocks
the conscience of the Court.
21. In the light of the law laid down
by the Apex Court as well as this Court,
in my view the broad principle which
emerges is that normally, it is the
disciplinary authority which should be
best left with the duty of imposing the
punishment after considering the facts and
circumstances of the case. However, it is
well settled that in case, if on the admitted
facts, the punishment imposed is grossly
disproportionate to the offence, which
shocks the conscience of the Court, the
Court has the power and jurisdiction to
interfere with the punishment imposed.
22. Considering the facts and
circumstances of the case, the punishment
awarded to the petitioner of dismissal
from service is too harsh and totally
disproportionate to the charges, for which
he had been found guilty. The punishment
of dismissal from service are resorted
only if there is very grave misconduct.
The punishment from dismissal from
service imposed on the petitioner is too
harsh and is liable to be set-aside.
23. Accordingly, the impugned
order
dated
15.07.2013
passed
by
respondent No. 3 and order dated
01.08.1994 passed by the respondent No.
1 cannot be sustained and are quashed.
24. In view of above, the writ
petition is allowed with the direction to
the respondents concerned to pay to the
petitioner half of the salary since removal
from the department on basis of no work
no pay and further respondents to pay
entire arrears within two months time
from the date of production of a certified
copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2015
BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.
Writ-C No. 46759 of 2014
Mohd. Wazid
 ...Petitioner
Versus
The Presiding Officer Cen. Govt. & Anr.
...Respondents
Counsel for the Petitioner:
Sri
Ranjeet
Asthana,
Sri
Abhishek
Srivastava
Counsel for the Respondents:
Sri Anadi Krishna Narayana, Sri Ashok Kr.
Lal
1 All] Mohd. Wazid Vs. The Presiding Officer Cen. Govt. & Anr.
449
Constitution of India, Art.-226-Rejection of
claim-for back wages mainly on groundworkman failed to proof of working for
certain period-while petitioner workman
already moved to summon the record and
also vehemently pressed-but no order
passed-held-in view of 'Director fisheries
Terminal Department'-award-unsustainablematter remitted back for fresh consideration.
Held: Para-8
I find that that the petitioner has
pressed his application for summoning of
the relevant document, however, the
respondent No.1 did not pass any order
on the said application and merely
observed in concluding paragraph No.23
of the impugned award that "I do not
find that there is any malafide intention
of the opposite party in withholding the
records because the opposite party, their
witnesses have specifically stated that
the workman did not work during the
period 2005-06." Thus the respondent
No.1 merely relied upon the allegations
made by the Respondent No.2. No
reasons have been assigned by the
Respondent
No.1
for
the
aforesaid
conclusion. The Respondent No.1 should
have considered the application of the
petitioner for summoning of the records
and
should
have
directed
the
Respondent no.2 to produce the records
in
evidence.
The
action
of
the
Respondent No.2 in not doing so cannot
be sustained in view of the law laid down
by Hon'ble Supreme Court in the cases of
Director, Fisheries Terminal Department
(supra) and R.M. Yellatti (supra).
Case Law discussed:
(2011) 2 SCC (L & T) 153; (2010) 1 SCC (L &
T)1 , (2010) 1 SCC 47.
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)
1. Heard Sri Ranjeet Asthana,
learned counsel for the petitioner. No one
appears on behalf of the Respondent No.2
even in the revised call.
2. Briefly stated the facts of the
present case are that undisputedly the
petitioner was engaged on temporary
basis
by
the
Respondent
No.2
as
messenger at Naini Branch, Allahabad for
the period from 6.5.2000 to 8.9.2004.
However, according to the petitioner he
continuously worked from 6.5.2000 till
4th November, 2006 on which date his
services were illegally terminated by the
Respondent No.2. Thereafter he raised an
industrial
dispute
and
the
Central
Government vide order dated 7.1.2008
referred the following question to the
prescribed authority:
"2. Whether the action of the
management of Bank of Baroda, in
terminating the services of Sri Mohd.
Wazid Messenger, with effect from
4.11.2006 is justified and legal? If not to
what relief the concerned workman is
entitled to?"
3. It appears that the aforesaid
reference was registered as Industrial
Dispute Case No. 25 of 2008. During the
course of proceeding in the aforesaid
Industrial
Dispute
case,
before
the
Respondent No.1 the petitioner filed 25
documents and the Respondent No.2 filed
10 documents. The Respondent No.2
produced two witnesses, namely, Sri Ram
Palat (MW-1), who was an officer of the
bank and Sri Manglesh Dubey (MW-2).
The witnesses were examined. As per
impugned award the petitioner filed
photostat copies of some vouchers. He
moved an application dated 26th October,
2009 before the Respondent No.1 for
summoning certain documents. Despite
the application moved by the petitioner,
the
records
were
not
summoned.
Although in the impugned award the
Respondent No.1 noted the facts in some
450
 INDIAN LAW REPORTS ALLAHABAD SERIES
detail but he rejected the claim of the
petitioner without consideration to the
facts of the case and his application for
summoning of the records. The relevant
portion of the impugned award is
reproduced below:
"22. I have respectfully gone through
the principle laid down by the Hon'ble
Apex Court, but considering the facts and
circumstances of the present case, I am of
the view that the workman cannot take
any benefit from this decision.
23. I have examined the contention of
the workman that the opposite party did
not file the relevant documents relating to
the period 2005-06. I do not find that
there is any malafide intention of the
opposite party in withholding the records
because
the
opposite
party,
their
witnesses have specifically stated that the
workman did not work during the period
2005-06. This fact can also be relied
because when the workman himself is
filing all the related vouchers etc. then he
could not have also filed the other entire
document relating to the period 2005-06,
but there is no such document which may
prove that the workman has completed
240
days
of
continuous
working.
Therefore, the workman has miserably
failed to prove this case.
24. Reference is therefore, decided
against the workman and in favour of the
management."
4. From paragraph No. 21 of the
impugned award it is evident that the
petitioner pressed his application for
summoning of the records and also relied
upon a judgment of Hon'ble Supreme
Court in the case of Devinder Singh Vs.
Municipal Council Sanaur (2011) 2 SCC
(L&T) 153.
5. In the case of Devender Singh
(supra) while dealing with the industrial
dispute under Section 25 of the Act, the
Hon'ble Supreme Court held as under:
"12. Section 2 (s) contains an
exhaustive
definition
of
the
term
"workman". The definition takes within its
ambit any person including an apprentice
employed in any industry to do any
manual, unskilled, skilled, technical,
operational, clerical or supervisory work
for hire or reward and it is immaterial
that the terms of employment are not
reduced into writing. The definition also
includes
a person,
who
has
been
dismissed, discharged or retrenched in
connection with an industrial dispute or
as a consequence of such dispute or
whose
dismissal,
discharge
or
retrenchment has led to that dispute. The
last segment of the definition specifies
certain exclusions. A person to whom the
Air Force Act, 1950, or the Army Act,
1950, or the Navy Act, 1957, is applicable
or who is employed in the police service
as an officer or other employee of a
prison or who is employed mainly in
managerial or administrative capacity or
who is employed in a supervisory capacity
and is drawing specified wages per
mensem or exercises mainly managerial
functions does not fall within the
definition of the term "workman".
13. The source of employment, the
method of recruitment, the terms and
conditions of employment/contract of
service, the quantum of wages/pay and
the mode of payment are not at all
relevant for deciding whether or not a
peroson is a workman within the meaning
of Section 2 (s) of the Act. it is apposite to
observe that the definition of workman
also does not make any distinction
between full-time and part-time employee
1 All] Mohd. Wazid Vs. The Presiding Officer Cen. Govt. & Anr.
451
or a person appointed on contract basis.
There is nothing in the plain language of
Section 2 (s) from which it can be inferred
that only a person employed on a regular
basis or a person employed for doing
whole-time job is a workman and the one
employed on temporary, part-time or
contract basis on fixed wages or as a
casual employee or for doing duty for
fixed hours is not a workman.
6. In the case of Director, Fisheries
Terminal Department Vs. Bhikubhai
Meghajibhai Chavda (2010) 1 SCC
(L&T) 1, (2010) 1 SCC 47 while
considering the case of a daily wager
workman under the Industrial Dispute
Act, 1947 (hereinafter referred to as the
'Act') held in paragraph Nos. 16,17,18 and
19 as under:
"16. This Court in R.M. Yellatti Vs.
Asstt. Executive Engineer has observed :
(SCC p. 116, para 17)
"17. ..... However, applying general
principles and on reading the [aforesaid]
judgments, we find that this Court has
repeatedly taken the view that the burden
of proof is on the claimant to show that he
had worked for 240 days in a given year.
This burden is discharged only upon the
workman stepping in the witness box. This
burden is discharged upon the workman
adducing cogent evidence, both oral and
documentary. In cases of termination of
services of daily-waged earners, there
will be no letter of appointment or
termination. There will also be no receipt
or proof of payment. Thus in most cases,
the workman (the claimant) can only call
upon the employer to produce before the
court the nominal muster roll for the
given period, the letter of appoin tment or
termination, if any, the wage register, the
attendance register, etc. Drawing the
adverse
inference
ultimately
would
depend thereafter on the facts of each
case."
17. Applying the principles laid down
in the above case by this Court, the
evidence produced by the appellant has
not been consistent. The appellant claims
that the respondent did not work for 240
days. The respondent was a workman
hired on a daily-wage basis. So it is
obvious, as this Court pointed out in the
above case that he would have difficulty
in having access to all the official
documents,
muster
rolls,
etc.
in
connection with his service. He has come
forward and deposed, so in our opinion
the burden of proof shifts to the appellant
employer to prove that he id not complete
240 days of service in the requisite period
of constitute continuous service.
18. It is the contention of the
appellant that the services of the
respondent were terminated in 1988. The
witnesses produced by the appellant
stated that the respondent stopped coming
to work from February, 1988. The
documentary evidence produced by the
appellant is contradictory to this fact as it
shows that the respondent was working
during February, 1989 also.
19. It has also been observed by the
High Court that the muster roll for 19861987 was not completely produced. The
appellant has inexplicably failed to
produce the complete records and muster
rolls from 1985 to 1991, in spite of the
direction issued by the Labour Court to
produce the same. In fact there has been
partically no challenge to the deposition of
the respondent during cross-examination.
In this regard, it would be pertinent to
mention the observation of the three-Judge
Bench of this Court in Municipal Corpn.
Faridabad Vs. Siri Niwas wherein it is
observed: (SCC p. 198, para 15)
452
 INDIAN LAW REPORTS ALLAHABAD SERIES
"15. A court of law even in a case
where provisions of the Indian Evidence Act
apply, may presume or may not presume that
if a party despite possession of the best
evidence had not produced the same, it
would have gone against his contentions.
The matter, however, would be different
where despite direction by a court the
evidence is withheld."
7. From the law laid down by Hon'ble
Supreme Court in the case of Director,
Fisheries Terminal Department (supra) and
also the law laid down by the Hon'ble
Supreme Court in the Case of R.M. Yellatti
Vs. Asstt. Executive Engineer (2006) 1 SCC
106 para 17 it is clear that in case of
termination of services of daily-wages
earner, there will be no letter of appointment
or termination. There will also be no receipt
or proof of payment. Thus the workman
(claimant) can only call upon the employer to
produce before the court the nominal muster
roll for the given period, the letter of
appointment or termination, if any, the wage
register, the attendance register etc. Drawing
of adverse inference ultimately would
depend thereafter on the facts of each case.
8. I find that that the petitioner has
pressed his application for summoning of
the relevant document, however, the
respondent No.1 did not pass any order on
the said application and merely observed
in concluding paragraph No.23 of the
impugned award that "I do not find that
there is any malafide intention of the
opposite party in withholding the records
because the opposite party, their witnesses
have specifically stated that the workman
did not work during the period 2005-06."
Thus the respondent No.1 merely relied upon
the allegations made by the Respondent No.2.
No reasons have been assigned by the
Respondent No.1 for the aforesaid conclusion.
The
Respondent
No.1
should
have
considered
the
application
of
the
petitioner for summoning of the records
and should have directed the Respondent
no.2 to produce the records in evidence.
The action of the Respondent No.2 in not
doing so cannot be sustained in view of
the law laid down by Hon'ble Supreme
Court in the cases of Director, Fisheries
Terminal Department (supra) and R.M.
Yellatti (supra).
9. In view of the above discussions,
the impugned award dated 31.12.2013
passed by the Respondent No.1 in
Industrial Dispute No. 25 of 2008 cannot
be sustained and is hereby set aside. The
matter is remitted back to the Respondent
No.1 to decide the aforesaid case afresh in
accordance with law after affording to the
parties concerned.
10. It is further directed that the
Respondent No.1 shall make effort to
decide the case as expeditiously as
possible preferably within a period of four
months from the date of production of a
certified copy of this order.
11. The writ petition is allowed to
the extent indicated above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2015
BEFORE
THE HON'BLE DR. DHANANAJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Writ-C No. 50570 OF 2014
Neeraj Kumar Rai & Ors. ...Petitioners
Versus
State of U.P. & Ors.
...Respondents