Judgment Aftab Alam, J. 1. The Zonal Manager, Central Bank of India, Zonal Office, Muzaffarpur has filed this writ petition against the award dated August 3, 2000 given by the Industrial Tribunal, Patna on a reference made to it u/s. 10(1)(d) of the Industrial Disputes Act. The reference was in the following terms: "Whether the action of the management of Central Bank of India in terminating the services of Shri Dincshwar Tiwary is legal and justified. If not, to what relief the said workman is entitled" 2. The case of the workman was that the concerned workman Dineshwar Tiwary was engaged as a temporary peon in the Lalganj branch of the Bank on September 1, 1988 and he worked there continuously and uninterruptedly till December 30, 1992 when he was removed illegally in violation of the statutory provisions and in breach of the Banks circular, incorporating the agreement between the management and the Union. According to the workmen, during the period of his engagement of over four years, Dineshwar Tiwary duly worked as a Peon from 10 a.m. to 6 p.m. he did the work of cleaning of chairs, tables etc., stored water for normal use in the branch, served water to the members of the staff, carried ledgers, registers, token books from one table to another, did the work of stitching of notes and vouchers, carried letters to the post-office and performed other sundry jobs as directed by the Branch Manager and other members of staff. He was, paid wages on weekly basis on daily rates of Rs. 3, Rs. 5, Rs. 10 and Rs. 20 from time to time. Further case of the workmen was that during this period there was a bi-partite agreement, at the head office level, between the management of the Bank and the Union representing the workmen. On the basis of the agreement the Bank issued a circular on March 12, 1991 which inter alia provided for absorption of all temporary employees who had put in 240 days of temporary service in any continuous period of 12 months during the period January 1, 1982 to December 31, 1990. A number of temporary employees were absorbed in the service of the Bank on the basis of this circular. A number of temporary employees were absorbed in the service of the Bank on the basis of this circular. The case of the concerned workman Dineshwar Tiwary was also fully covered by this circular but the local Branch Manager, for some reason, failed to forward his case for absorption to the higher authorities. When the case of the petitioner was not sent to the higher authorities despite repeated requests, the concerned workman made a representation to the Regional Officer. On the basis of his representation the Regional Officer asked for the details concerning him and this led to an exchange of correspondences between the Branch Manager, the Regional Manager and the Zonal Office. At one stage the Regional Manager was satisfied that the concerned workman had worked for more than 240 days in a period of 12 calendar months and he was entitled to absorption in terms of the Banks circular, dated March 12, 1991. The Regional Manager accordingly, made a recommendation to the Zonal office of the Bank. Finally, however, no action was taken in that regard and the concerned workman was removed even without giving him any retrenchment notice/notice pay and compensation in terms of sec. 25-F of the Industrial Disputes Act. According to the workmen, therefore, the removal of Dineshwar Tiwary was not only in breach of the banks circular, dated March 12, 1991 but it was also in violation of the mandatory provisions of Section 25-F of the Act. 3. The Bank, in its written statement, did not deny the existence of the concerned workman. It rather admitted a certain kind of relationship between the Bank and the concerned workman. The case of the bank was that Dineshwar Tiwary used to supply water to the Bank and the payments that were made to him were the price of water supplied by him. It was admitted that on a number of days when the regular Peon of the branch was on leave or was absent for any other reason, Dineshwar Tiwary was engaged to do his work but, according to the Bank the number of days on which Dineshwar Tiwary was engaged to work as Peon did not add up to 240 days in any calendar year during the period September 1, 1988 to December 31, 1992. It also admitted that no notice/notice pay or retrenchment compensation was given to Dineshwar Tiwary at the time of his removal on December 30, 1992 but, according to the Bank, he did not qualify for retrenchment notice and compensation in terms of sec. 25-B of the Act. 4. On a consideration of the entire materials produced before it, the Tribunal found and held that Dineshwar Tiwary had worked as temporary and causal Peon "at least for 240 days in every year of his service, i.e. in the years 1989, 1990, 1991 and 1992." The Tribunal consequently held that the action of the management in terminating his service was illegal and unjustified. The Tribunal, then proceeded to direct for his reinstatement and regularisation in service as a Class IV employee in the subordinate cadre w.e.f. December 31, 1992, i.e. the date of his retrenchment, with full back wages. 5. It may be noted here that though at the time of his removal Dineshwar Tiwary was working as as temporary and causal Peon, me Tribunal directed for his regularisation I in service from the date of his retrenchment. The direction of the Tribunal is based on the Banks circular, dated March 12, 1991 (Ext. M/1) issued in pursuance of the bi-partite settlement (Ext. M/2) between the Bank and the Union, at the apex level. A copy of the circular, dated March 12, 1991 (Ext. M/1) is at Annexure-I and a cursory glance at its provision would be that the Tribunal was quite justified in giving a direction for absorption of Dineshwar Tiwary in regular service even though at the time of his removal he was working as a temporary and casual Peon. In the circular it is stated that though instructions were issued from time to time not to engage temporary/casual employees for more than 60 days in a period of 12 calendar months, there were instances of offices: continuing to engage temporary hands as a matter of routine in the leave vacancy of permanent employees, resulting in claim for employment. It was then stated that having regard to the legal position the Bank had entered into an agreement with the Union to evolve suitable norms for giving one time opportunity to all those who were engaged as temporary/casual employee on or after January 1, 1982. Then in paras 3 and 3.1 of the circular it was stated as follows: "3. It was then stated that having regard to the legal position the Bank had entered into an agreement with the Union to evolve suitable norms for giving one time opportunity to all those who were engaged as temporary/casual employee on or after January 1, 1982. Then in paras 3 and 3.1 of the circular it was stated as follows: "3. Employees who have put in 240 days temporary service. 3.1. Temporary employees who have put in 240 days of temporary service in any continuous period of 12 months after January 1, 1982 upto December 31, 1990 will be considered for absorption in the immediate available vacancies without any test and interview." 6. In view of the circular (Ext M/1) the direction given by the Tribunal for the absorption of Dineshwar Tiwary in the regular service of the bank cannot be said to be unreasonable or unjustified. 7. Dr. Sadanand Jha, senior counsel appearing for the Bank, however, assailed the finding recorded by the Tribunal that Dineshwar Tiwary had worked for more than 240 days in each calendar year of his four year tenure with Bank. Dr. Jha, submitted that the Tribunals finding was based on no evidence and it was arrived at by wrongly shifting the onus to the Bank. Learned counsel submitted that it was the workmens claim that Dineshwar Tiwary had worked for more than 240 days in calendar year. The management of bank denied the claim and maintained that the number of days on which Dineshwar Tiwary had worked was less than 240. Hence, the burden of proof lay on the workman and the Tribunal had committed an error in holding that he had worked for more than 240 days in a calendar year for the reason that the management failed to prove that the number of days on which Dineshwar Tiwary had worked in a calendar year was less than 240. In support of his submission, Dr. Jha relied upon a decision of the Supreme Court in the case of Range Forest Officer V/s. S.T. Hadimani, AIR 2002 SC 1147 : 2002 (3) SCC 25 : 2002-I-LLJ-1053. 8. I am unable to agree and in my view it cannot be said that the Tribunals finding was based on the failure of the Bank to prove that the number of days on which Dineshwar Tiwary had worked in a calendar year was less than 240. 8. I am unable to agree and in my view it cannot be said that the Tribunals finding was based on the failure of the Bank to prove that the number of days on which Dineshwar Tiwary had worked in a calendar year was less than 240. On the contrary, the finding is based on the positive evidence led on behalf of the workmen, apart from the admission by a management witness. One of the witnesses examined on behalf of the workman, Shri Mukti Nath Pandey (M.W. 2) was the Branch Manager of Lalganj branch from April 1984 till July 1989. He fully supported the case of the workman. With regard to M.W. 2 however, Dr. Jha submitted that at the time of his deposition he had already retired from the service of the bank and he could say anything in order to help the workmen and, therefore, no reliance may be placed on his evidence. Even if the submission is accepted for a while, there is M.W. 2 Shri Naresh Kumer Pandey who was the Branch Manager of Lalganj branch from May, 1989 to December 1991 and who was admittedly in the service of the bank at the time of his deposition in this case. The deposition of M.W. 2 is not before this Court but in the award the Tribunal makes the following observations with regard to the deposition of M.W. 2: "Even the M.W. 2 has stated that Sri Tiwary supplied water to the Branch regularly during the period when the witness was posted there as Branch Manager from 1989 to December, 1991. In cross-examination he has also admitted that in view of the direction from the Regional and Zonal Office not to engage any person as a casual worker for 240 days or more in a year, he deposed that Sri Tiwary was not engaged for 240 days in a year." 9. Apart from the oral evidence, the Tribunals finding appears to be fully supported by the managements own documents which were brought on record as exhibits on behalf of the workmen. Ext. W is a letter, dated October 14, 1991 from the Branch Manger to the Regional Office. Apart from the oral evidence, the Tribunals finding appears to be fully supported by the managements own documents which were brought on record as exhibits on behalf of the workmen. Ext. W is a letter, dated October 14, 1991 from the Branch Manger to the Regional Office. It is a brief letter which reads as follows: "In continuation of our letter dated August 6, 1991, we have to inform you that Dineshwar Tiwary casual worker has performed the duty of sub-staff also but the wage paid by the branch was only for storing the drinking water. Sri Tiwary performed the duty of sub-staff due to shortage of hands to meet out increased work load." 10. Ext. W-2 is a letter dated December 24, 1992 from the Branch Manager to the Regional Office in reply to some letters from the Regional Office and enclosing a detailed statement regarding the working of Dineshwar Tiwary in the Branch. The statement contained details of each day from January 7, 1989 to December 31, 1989 regarding the work done and the payments made to the concerned workman under different heads. It is significant to note that in this statement the payments are shown under different heads e.g. Purchases, Wages, Labour Charges etc. On the basis of this statement the Regional Officer felt satisfied that during the year 1989 Dineshwar Tiwary had worked in the branch for 243 days for which payments were made to him as wages for 190 days, as labour charge for 52 days and for 82 days by vouchers for storing water. Accordingly, the Regional Officer by his letter dated July 8, 1993, Ext W.5, came to the conclusion that he was covered by the circular, dated March 12, 1991 and made a recommendation for his absorption. 11. In view of such materials it can hardly be said that the Tribunals finding is based on no evidence or it is arrived at by shifting the onus to the management. The Tribunal has simply made a remark in the passing that against the weight of materials produced by the workmen, the management did not produce any evidence to show that the number of days for which Dineshwar Tiwary had worked in a calendar year was less than 240. 12. Dr. Jha next submitted that Exts. W-3 and W-5 show that the concerned workman was not being paid wages at any uniform rate. 12. Dr. Jha next submitted that Exts. W-3 and W-5 show that the concerned workman was not being paid wages at any uniform rate. He further submitted that some of the payments made to him were for some specified work and the days on which he was paid piece- rated wages cannot be counted as days of work for reckoning 240 working days in calendar year. The submission simply amounts to stating the case of the Bank in different words. It is noted above that the case of the Bank before the Tribunal was that the payments were made to Dineshwar Tiwary not as a workman of the Bank but as price of water supplied to the Bank by him. This has been found to be incorrect on the basis of the managements own documents, in fact, the statement in Ext. W-3 indicated something more grave and serious. It shows that though Dineshwar Tiwary was there at the branch all the time, payments were being made to him under different heads presumably to deny any later claim by him for absorption in service on the ground that he had worked for 240 days in a calendar year. 13. Dr. Jha, then submitted that a daily rated employee had no right to the post and hence, his disengagement could not be held to be arbitrary and in support of the submission he relied upon a decision of the Supreme Court in Himanshu Kumar Vidyarthi & Ors V/s. State of Bihar and Ors. 1997 (4) SCC 391 : 1998-II-LLJ- 15. The decision in Himanshu Kumar Vidyarthi has no application to this case. In H.K. Vidyarthi the case related to appointment in a Government Institute and not in a Bank, the case did not arise under the Industrial Disputes Act but started with a writ petition filed directly in the High Court and in that case there was no absorption circular as in this case. The concerned workers in that decision were appointed on daily wages by the Principal of the Co-operative Training Institute, Deoghar. Later when their services were terminated they tried to challenge the order of termination in a writ petition filed in the High Court. In the writ petition the order of termination was challenged on the ground of violation of sec. 25 of the I.D. Act. Later when their services were terminated they tried to challenge the order of termination in a writ petition filed in the High Court. In the writ petition the order of termination was challenged on the ground of violation of sec. 25 of the I.D. Act. It was in that background the Supreme Court observed that: "Every department of the Government cannot be treated to be industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. Admittedly, they were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be retrenchment under the Industrial Disputes Act." 14. The decision in Himanshu Kumar Vidyarthi (supra) was thus in an entirely different set of facts. 15. In the light of the discussions made above, I find no substance or merit in the points advanced or assailing the Tribunals award. 16. On a consideration of the entire materials on record, I find no infirmity in the impugned award. This writ petition is, therefore, dismissed but with no order as to costs.