9911796707
TMI Blog1996 (7) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... established for the purpose of trading in foodgrains and other food stuffs and for matters connected therewith and incidental thereto. It undertakes purchase, storage, movement, transport, distribution and sale of foodgrains and other food stuffs. The Corporation has set up its godowns/depots and other storage facilities. Labour is engaged at different stages in the various Depots for handling, storage and transit of foodgrains and other food stuffs. The Corporation is functioning through various offices and depots through out India. It seems that the Corporation adopted different methods at different places for employing labour for handling foodgrains. We are concerned in this case with one such Depot set up by the Corporation at Siliguri in West Bengal State. It is stated that at the relevant time, 464 workmen designated as Handling Majdoors were attached to the said Depot. Initially, a contractor was engaged by the Corporation for handling, storage and transit of foodgrains at Siliguri Depots. Subsequently, the procedure of direct payment to labourers was followed by the Corporation. The workmen at its Siliguri Depot went on strike in about January 1975, which was called off in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m either angle, the action of introducing so as to displace the contract of service between the Corporation and the workmen would be illegal and invalid and ab initio void and such action would not alter, change or have any effect on the status of the afore-mentioned 464 workmen who had become the workmen of the Corporation. (pp. 101 - 102 Main Paperbook) an award be made that the afore mentioned 464 workmen who had become the workmen of the Corporation continued to be the workmen employed by the Corporation and shall be entitled to all the rights, liabilities, obligations and duties as prescribed for the workmen by the Corporation. A formal award to that effect shall be made by the Tribunal. (p. 107 main paperbook) (emphasis supplied) As it was stated before this Court that these workmen continued to be employed, undoubtedly under the contractor since the illegal change was introduced, the question of paying back wages does not arise. The Tribunal however must satisfy itself before making the final award whether any workman was denied work and consequently wages. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appears to be no dispute from the management. (p. 147 Main Paperbook) (emphasis supplied) 6. Subsequently, the Tribunal had passed the Award dated 5.11.1993, after completing the identification exercise in respect of 287 workmen. (See Annexure to the order detailing 287 and their number in the list of 464, mentioned by the appellant-Union in the statement filed by it). The Tribunal has taken the view that none of them were ever employed by the Food Corporation of India. It has stated that they will not be taken within the fold of 464 workmen dealt with in the above mentioned two appeals of this Court. It should be stated again that out of 464 workmen dealt with the judgment in C.A. No. 1055 (NL)/81 dated 28.2.1985, the Corporation had no dispute with regard to 203 persons; and so, it appears, the dispute centered around 261 persons only; and perhaps it is in this context, only the cases of 287 workmen who came forward to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of Chancier Dev Thakur is present before us. We have seen him and talked to him. His photograph on the xerox copy of the identity card dt. 14.4.78 seems to be the photograph of Chander Dev Thakur, We have also taken his signatures before us and tally with the signatures which are on the identity card. Both the signatures are identical. Another worker, Sachidanand Sawhney is also present in Court. After seeing him and seeing the photograph on permit No. 178, we find that the photograph is of the person who is standing before us. We have examined these two workers only to test the findings of the Industrial Tribunal who found that the photograph of none of the workers tally with their actual fact and profile. 9. We would like to highlight a few facts. It is the Food Corporation of India Workers Union, the appellant herein, who was a party in the earlier proceedings which resulted in the decision of this Court in C.A. No. 1055(NL)/81 and also C.A. No. 155/90. The appellant claims to be a recognised trade Union. The first respondent - management, stated that the appellant was a recognised Union till 1984 and not thereafter, since no recognition was given to Union dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (emphasis supplied) The management filed a reply thereto dated 26.10.1978 which is available at pages 149 to 162 of the Main Paperbook. At page 153, in paragraph 10, the management stated thus: 10. The statement as made in paragraph 10 of the written statement of the workmen is substantially correct. The annexure to the written statement (the list) filed by the appellant's Union dated 7.7.1978 available at pages 44 to 59 contains the names and designation of the (464) Mazdoors of Siliguri Depot as on 21.7.1975. The employment of such persons as specified in the list was not disputed at all by the Management in the written statement. It does not appear that the Management over contested the fact that 464 workmen, specified in the list, were attached to Siliguri Depot at the relevant time in two prior Appeals i.e. C.A. No. 1055(NL)/81 and C.A. No. 155/90. Indeed, in the later appeal, out of 464 workmen, the Management had no dispute about 203 persons. 11. Our finding in the earlier order dated 4.5.1995, at least regarding two persons who were present in Court and whose identity could not and was not disputed with reference to their photographs and xerox copies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, Hajira Sheets, xerox copies of Permit Slips, original list of workmen working with the Corporation, published on 12.12.1978 by the Corporation, which should admittedly be in the possession of the Corporation and directed by the Tribunal to be produced, were not produced by the Corporation. It seems that the Management filed an affidavit stating that the documents are not in their possession and the Tribunal stated that the plea of the appellant to call for the documents should be and are available with the Corporation, cannot be denied, in view of the facts highlighted or stated by this Court in the earlier judgment in C.A. No. 1055(NL)/81. The Tribunal abdicated its duty in not taking effective or proper steps to obtain the said crucial and primary documents. In the circumstances, an adverse inference was called for, against the Corporation for non production of vital primary documents. 13. In disposing of C.A. No. 1055(NL)/81 this Court had occasion to advert to the fact that the names of workmen engaged in handling foodgrains at the Siliguri Depot will be mustered in a Register and his daily out-turn will be specified. And further the payment will be made by piece rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sconceived the nature of the orders passed by this Court in C.A. No. 1055(NL)/81 and C.A. No. 155/90 and in conducting a fresh appraisal as to whether all or any of the 464 workmen included in the list were in employment of the Corporation at the relevant time. The approach made by the Tribunal, even in the matter of marshalling or considering the material placed before it, seems to be wrong for the following reasons. The Tribunal was apparently of the view, that there should be evidence to prove the facts, as per the provisions of the Evidence Act; It is not so. The Tribunal is not a Court. There should be only 'material' and not evidence as required by the Evidence Act. It appears that a good many witnesses were examined by another member who was the predecessor of the member, who delivered the final award. The Tribunal has stated that the evidence of the petitioner (workman) is not duly proved , legally proved or proved beyond reasonable doubt . This approach was also wrong. The only question was whether on weighing the probabilities, the materials placed by the petitioner was acceptable or rendered probable. The Tribunal has considered at length the minute parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NL)/81 dated 28.2.1985. We would, however, like to stress the fact, that the concerned officer of the appellant Union, should act with extreme candour and circumspection. If it turns out later, that any lapse or fraud in the matter was attempted or perpetuated, the concerned official of the Union along with the person identified, will be liable to prosecution and further penalties. This order shall be implemented within a period of 3 months from today. For working out the above, the first respondent shall issue a detailed notice in writing to the appellant, with particulars, asking the appellant to produce the concerned workmen, along with their identity cards and such other records available with them and then, the representative of the appellant Union shall in writing endorse by a certificate the identity of the person concerned, as one covered by the list of 464 workmen (List filed along with the written statement dt. 7.7.1978). 1.7. In disposing of C.A. No. 1055(NL)/81 by Judgment dated 28.2.1985, this Court did not award any backwages. The only direction given was that the Tribunal must satisfy whether any of the workmen was denied work and consequently it resulted in los ..... X X X X Extracts X X X X X X X X Extracts X X X X
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