Mr. Atul T.N. Ms. Nazmeen Ahmed, Advocates v. UNION BANK OF INDIA

Judgment

1. The present Petition has been filed under Article 226 and 227 of the Constitution of India seeking to challenge the Award dated 10.01.2022 passed by the learned Presiding Officer, CGIT-cum-Labour Court-II, New Delhi [hereinafter referred to as “Impugned Award”]. By the Impugned Award the Claim Petition that was filed by the Petitioner/Workman has been dismissed.

2. The learned Trial Court found that there is no material on record to show that he was working in continuation for the Respondent/Bank for the period from 01.08.2001 to 05.03.2010. By the Impugned Award even in the

line above, the learned Trial Court has also given a finding that the factum Signature Not Verified Digitally Signed By:PRAGYA ARORA Signing Date:01.09.2025 16:45:34 W.P.(C) 14988/2022 Page 1 of 14 of the completion of 240 days in the calendar year preceding the date of his termination as is set out in Section 25-B(2)(a)(ii) of the Industrial Disputes Act, 1947 [hereinafter referred to as “ID Act”] has not been fulfilled. Thus, no relief was granted to the Petitioner/Workman.

2.1 Section 25-B(2)(a)(ii) of the ID Act reads as follows: “25B. Definition of continuous service.—For the purposes of this Chapter,— (1) … (2) … (a) … (i) … (ii) two hundred and forty days, in any other case;”

3. Learned Counsel for the Petitioner/Workman has contended that the Impugned Award suffers from an infirmity. He submits that the Claimant was working as a daily wager in the Respondent/Bank for a substantial period of time and on a casual basis. He submits that this statement has not been denied by the Respondent/Bank, including in his Written Submissions.

3.1 Learned Counsel further submits that even in the cross-examination conducted of the Management in this behalf, this aspect has not been denied. Reliance is placed in this regard on the cross-examination of the Manager – MW1/Kamal Babu Sharma in this behalf. It is contended that the Respondent’s Manager had admitted to the fact that the Petitioner/Workman was engaged casually during his tenure and before and after.

3.2 Learned Counsel submits that although initially, the burden of proof as to whether there exists an employer-employee relationship is on the Workman, however once the Workman has discharged this burden, the Signature Not Verified Digitally Signed By:PRAGYA ARORA Signing Date:01.09.2025 16:45:34 W.P.(C) 14988/2022 Page 2 of 14 burden of proof shifts on to the Management. It is contended that the Respondent/Management thereafter failed to do so.

3.3 Learned Counsel for the Petitioner further refers to the documents that have been filed along with the Petition to submit that several documents had been placed on record showing the continuous nature of the employment of the Petitioner, thus, the burden was discharged by the Petitioner in the first instance.

4. In support of his contentions, learned Counsel for the Petitioner has relied upon the judgments of the Supreme Court in Bank of Baroda v. Ghemarbhai Harjibhai Rabari1, Sriram Industrial Enterprises Ltd. v. Mahak Singh2 and R.M. Yellatti v. Asstt. Executive Engineer3 to submit that the burden of proof primarily initially lies on the Workman/Claimant, however, where he establishes or discharges such burden, thereafter the burden falls on the Management to produce evidence to establish that the documents produced were not genuine.

4.1 In addition, learned Counsel for the Petitioner has also relied upon the judgment in the case of Union of India v. Ramchander4 to submit that the Courts have found upon these kind of practices and have referred to such practice as an unfair labour practice in terms of Item 10 of the 5th Schedule of the ID Act. Reliance in this behalf is placed on Ramchander case where persons appointed as daily wager for extended period of time and were terminated, a finding was given that these casual labourers continued for