FOOD CORPORATION OF INDIA WORKERS UNIONversusFOOD CORPORATION OF INDIA AND ANR.

       FOOD CORPORATION OF INDIA WORKERS UNION                              A
                         v.
          FOOD CORPORATION OF INDIA AND ANR.

                             JULY 16, 1996

          [KULDIP SINGH AND K.S. PARIPOORNAN, JJ.]                          B

        Industrial Disputes Act, 1947-Section 25-F-Retrenchment-
Workmen-Diange in conditions of servic<:-Payment through contracto1~
Direct payment system abolished-Effect on status of 464 workmen-Iden-
tification disputed-Directions issued.                                      c
      The first respondent, the Food Corporation of India, a statutory
Corporation established for the purpose of trading in foodgrains and
other food stuffs and for matters connected therewith, adopted different
methods for employing labour for handling foodgrains. At Siliguri Depot
in West Bengal State, there were 464 workmen designated as Handling         D
Majdoors. Initially a contractor was engaged by the Corporation for
handling, storage and transit of foodgrains. Subsequently, the procedure
of direct payment to labourers was followed by the Corporation. Sub-
sequently, the Corporation changed the method of payment. The direct
payment system was superseded. The payment through contractor was           E
reintroduced. The 464 workmen already accepted as the workmen of the
Corporation agitated through their Union that the change over was illegal
and malacious.

        The question raised was whether these 464 persons represented by
,the Union and attached to Siligurl Depot were the workmen of the Corpora- F
 ti on and the change in .the conditions of service made by the Corporation
 was valid and legal. A three Member Bench of this Court held that since
 the introduction of the direct payment system, the workmen became the
 workmen of the Corporation and a direct master servant relationship came
 into existence. The action, if intended to be done was retrenchment, it was G
 contrary to the provisions of Sec. 25 F of the Industrial Disputes Act and
 such action would not alter, change or have any effect on the status of these
 464 workmen who had become the workmen of the Corporation. They
 continued to be the workmen employed by the Corporation. Subsequent to
 this judgment, the Tribunal passed an Award siating that the 464 workmen
 continued to be the workmen employed by the Corporation. The respondent H
                                      605
    606                    SUPREME COURT REPORTS [1996j SUPP. 3 S.C.R.

A   Corporation agitated the matter again. A two-Member Bench of this Court
    directed the Tribunal to examine the identification of the 464 workmen
    including 203 persons in respect of whom there was no dispute from the
    management. The Tribunal passed the Award statingthat none of these 287
    workmen were ever employed by the Corporation and that they will not be
B   taken within the fold of 464 workmen. The Special Leave Petition was filed
    against this Award of the Tribunal.

          The Corporation did not challenge the list filed alongwith the written
    statement of the appellant. The Management never contested the fact that
    464 workmen, specified in the list were attached to Siliguri Depot at the
C . relevant time. Out of 464 workmen, the Management had no dispute about
    203 persons.

          Disposing of the petitions, this Court

           HELD : The judgment of this Court in C.A. No. 1055(NL)/81 was
D   conclusive to show that 464 persons attached to "the list" were workmen of
    the Corporation entitled to the benefit given by the judgment. The only
    further 'luestion that fell for consideration as a result of the later order of
    remit in C.A. No. 155/90 was "the identity of the 464 workmen" and not
    whether they or any of them, had been in employment at the relevant time.
E   The Tribunal wholly misconceived 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 matc1ial placed before it, seems to be wrong for the follow-
F   ing reasons. The Tribunal was apparently of the view, that there should be
    uevidence 11 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 re'luired by the Evidence Act. A good many witnesses were
    examined by another member who was the predecessor of the member, who
G   delivered th2 final award. The Tribunal had stated that the evidence of the
    petitioner (workmen) was not "duly proved", "legally proved" or proved
    "beyond reasonable doubt". This approach was also wrong. The only ques-
    tion was whether on weighting the probabilities, the materials placed by the
    petitio.1er was acceptable or re11dered probable. The Tribunal had con-
    sidered at length the minute particulars in the case, in the light of the
H   re<JUirement of the Evidence .Act and had made much of the minor lapses
                     F.C.l. WORKERS.UNION v. F.C.I.                        607

in evaluating the probabilities. There were vague generalisations and an          A
unreal or impractical approach to the materials available before it. Even
where the predecessor had found resemblance in the signatures of .the
identity cards with other records, the later Tribunal has discarded th~m.
The Tribunal had categorised the identity cards as falling under four
groups ·'no resemblance', 'some resemblance', 'little resemblance' and
'clear resemblance' - based on no clear guidelines or principles and had
                                                                                  B
based the conclusion at its ipse dixit. The Tribunal had totally failed to note
that the Management had no explanation, regarding workmen other than
"203" admitted by it, and it did not produce any person bearing the name
in the list of "464" nor did it offer any explanation, regarding such other
persons (other than 203). On a review of the above facts and circumstances,       c
it is found that the order of the Tribunal is infirm. Taking into account the
totality of the facts and circumstances and to do complete justice in the
matter, the only way to resolve this issue is to direct the appellant, (trade
union), through a responsible office-bearer, duly authorised, to identify the
 persons, whose identity were questioned or disputed by the Management.
On such identification being made by the appellant, the Management shall D
reinstate them in service forthwith and also continue to employ such
workmen, who shall be entitled to all the rights, liabilities, obligations and
duties as prescribed for the workmen by the Corporation, as held by this
Court in C.A. No.1055(NL)/81 dated 28.2.1985. The concerned officer of the
appellant Union, should act with extreme candour and circumspection. If E
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 persons
identified, will be liable to prosecution and further penalties. This order
shall be implemented within a period of 3 months from today. The 1st
respondent Corporation - an instrum.entality of the State -has unnecessari-
ly delayed the final disposal of the entire proceedings. If one expected a "fair F
and impartial" deal from the 1st respondent, he would feel disappointed.
So, such of those persons reinstated after identification shall also be paid
back wages calculated at 70% of the "normal earnings", from the date of the
expiry of the period specified in C.A. No. 155/90, i.e., 17 .4.1990, till they are
reinstated. [617-B-H; 618-A-G; 619-B-CJ                                            G

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9182 of
1996.

      From the Judgment and Order dated 5.11.93 of the Central Govt.
Industrial Tribunal, Calcutta in Reference No. 13 of 1977.           H
    608                  SUPREME COURT REPORTS 11996] SUPP. 3 S.C.R.

A         Ms. Indira Jaishing and Bharat Sangal for the Appellant.

          G.L. Sanghi and Y.P. Rao for the Respondents.

          The Judgment of the Court was delivered hy

B         PARIPOORNAN, J. Delay condoned. Special leave granted.

          2. The appellant is the Food Corporation of India Workers Union
    claiming to be a registered trade Union at Calcutta. The present proceed-
    ings are filed by its Secretary. The Respondents are - (1) the Food
    Corporation of India, New Delhi and (2) The Presiding Officer, Central
C   Government Industrial Tribunal at Calcutta. This appeal is filed assailing
    the award passed by the Central Government Industrial Tribunal (the 2nd
    respondent) dated 5.11.1993 in Reference No. 13 of 1977 and published by
    the Central Government on 5.3.1994.

D       3. We heard counsel. This litigation has a chequered history. This is
  the third round in this Conrt. The first respondent, the Food Corporation
  of India, is a statutory Corporation established for the purpose of trading
  in foodgrains and other food stuffs and for matters connected therewith
  and incidental thereto. [t undertakes purchase, storage, movement,
  transport, distribution and sale of foodgrains and other food stuffs. The
E 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
F 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 contrac-
  tor was engaged by the Corporation for handling, storage and transit of
G foodgrains at Siliguri Depots. Subsequently, the procedure of direct pay-
  ment 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 March 1975. Thereafter, the Corporation changed the method of pay-
  ment. The direct payment system was superseded. The payment through
   contractor was reintroduced. The 464 workmen ,,.]readyI
                                                                accepted as the
H workmen of the Corporation, agitated throu~ their Union that the change-
          F.C.I. WORKERS UNION v. F.C.I. [PARIPOORNAN,J.]                       609

over was illegal and malacious. The question arose, whether the aforesaid               A
464 persons represented by the Union and attached to Siliguri Deport were
the workmen of the Corporation and the change in the conditions of service
made by the Corporation was valid and legal. This led to an industrial
dispute. The matter came up finally before this Court in Civil Appeal No.
l055(NL)/81. By judgment dated 28.2.1985, a three-Member Bench of this                  B
Court examined the matter in great detail, and held thus :

        "Examining the system of direct payment as setout in the letter
        dated April 28, 1973 further amplified by the letter dated October
        29, 1973, it becomes crystal clear that name of every workman
        engaged to handle foodgrain at Siliguri Depot will be mustered in               C
        a register a11d his daily out tum will be specified. The payment will
        be by piece rate as was in vogue at the time of the contractor
        system. The bill will be prepared setting out the name of the
        workmen and the out-turn of each. The pay bill will be prepared by
        the Depot Staff who are regular employees of the Cmporatio11. The               D
        payment will be made by the corporation but will be distributed
        to each workman according to the piece rate by what are called
        Sardar/Mandal. The bills with the acquittance in original evidenc-
        ing payment would be filed with the Corporation."

        "When the direct payment system was introduced, the inter-                      E
        mediary contractor disappeared from the picture. The work
        rendered by each workman had to be entered into a muster roll
        register. The Corporation will distribute the wages calculated on
        piece rate to each workman and each workman was required to
        be a party to the acquittance roll to be retained by the corporation.
        The wages were distributed by Sardars/Mondals."                                 F

                                                        (p. 97 Main paperbook)

        "..................... the conclusion is inescapable that since the introduc-
        tion of the direct payment system, the workmen became the                       G
        \Vorkmcn of the Corporation and a direct master-servant relation
        came into existence.!!

        nif \Vhat \Vas intended to be done was retrenchment, ex facie the
        action is contrary to the provisions of Sec. 25F of the 1.0. Act,
        1947. Viewed from either angle, the action of introducing so as to H
    610                 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A          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."

B                                             (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 wmkmen employed by the Co1poration and shall be entitled to
           all the rights, liabilities, obligations and duties as prescribed for
c          the workmen by the Corporation. A Jonna/ award to that effect
           shall be made by the Tribunal."

                                                      (p. 107 main paperbook)
                                                           (emphasis supplied)
D
           "As it was stated before this Court that these wmkmen continued
           to be employed, undoubtedly under the contractor since the illegal
           change was introduced, the question of paying back wages does not
           a1ise. The Tribunal however must satisfy itself before making the
           final award whether any workman was denied work and conse-
E          quently wages."

                                                (pp. 107-108 Main Paperbook)
                                                           (emphasis supplied)

           (pages 83 tc 108 - Main Paperbook contain the judgment dated
F          28.2.1985)

         4. It seems that subsequent to the above judgment, the Tribunal
    passed an Award dated 24.11.1988 in the following terms :

            "18. In view of what has been stated and discussed above, before
G          I go into the determination of the question with regard to the back
           wages to be obtained by the eligible v.orkmen concerned on proper
           materials to be produced before this Tribunal, this Tribunal in
           reference to the direction of the Hon'ble Supreme Court in the
           penultimate first paragraph, makes the Jonna! award as directed
H          by the Hon'ble Supreme Court by way of interim award in the
          F.C.J. WORKERS UNJONv. F.C.J. [PARIPOORNAN,J.]                    611

        following manner.                                                          A
        19. The 464 w01*'1ien named and mentioned in the list annexed to
        the wlitten statement of the workme11 a11d refeJTed to by the Ho11'ble
        Supreme Cowt i11 their judgment in Civil Appeal No. 1055(NL) of
        1981, who had become the w01kmen of the Corporatio11 continue to
        be the workmen employed by the Co1poration and shall be entitled           B
        to all the rights, liabilities, obligations and duties as prescribed for
        the workmen by the Corporation".

                                                    (p. 4 Paperbook Part 11)
                                                         (emphasis supplied)
                                                                                   c
      5. The first respondent, Food Corporation of India, agitated the
)natter again and in Civil Appeal No. 155/90, a two-Member Bench of this
Court by judgment dated 17.1.1990, passed the following order :

        "Counsel on both sides and in our opinion very fairly submitted            D
        that there is need to identify the workmen who are entitled to
        reinstaten1ent. In fact, with that understanding we made the order
        dated December 29, 1989 keeping in abeyance of the interim award
        of the Tribunal.

           It seems to us having regard to the facts of the case, the              E
        identification of the workmen is a must and it should be properly
        done by the Tribunal. We therefore, direct the Tribunal to proceed
        to examine the identification of the 464 workmen including 203
        persons in re>pecl of whom there appears lo be no dispute from the
                      11
        nzanagenient.
                                                                                   F
                                                    (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. (Sec G
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 H
    612                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A the judgment in C.A. No. 1055 (NL)/81 dated 28.2.1985, the Corporation
  had no dispute with regard lo 203 persons; and so, it appears, the dispute
  centred around 261 persons only; and perhaps it is in this context, only the
  cases of 287 workmen who came forward to prove their identity, as having
  been included in the total '464' were considered by the Tribunal in its order
B dated 5.11.1993.

         7. The Special Leave Petition came up before this Court on more
  than one occasion. The counsel for the Corporation fairly stated that he
  shall contact the Corporation and assist this Court to settle the problem in
  an amicable way. The counsel appearing for the parties were also heard at
C some length and this Court was taken through the rather voluminous order
  of the Presiding Officer, Central Government Industrial Tribunal, which is
  assailed herein. This will be evidence from a perusal of the earlier orders
  dated 20.3.1995 and 3.4.1995. But, no satisfactory solution could be arrived
  at to solve the problem amicably.

D
          8. We were informed by appellant's counsel during one or two
  hearings that a few workers were also present in Court. When the matter
  came up during hearing we exrJressed the vie\v that we will, on our own,
  examine a few specimen cases and endeavour to identify whether such
  persons present in Court would fall within the "287 persons" whose iden-
E tifications were questioned and considered in the order of Tribunal dated
  5.11.1993. A list containing the photo copies duly attested by the Tribunal
  of the Identity Cards of 22 concerned ·workmen was filed before us. We
  were informed that 287 workmen deposed before the Tribunal. The "iden-
  tification" exercise is attempted after a lapse of more than 15 years and due
F to lapse of time, there is every possibility of the photographs and writing
  thereon getting blurred. The workmen are illiterates or semi literates.
  These vital handicaps have to be borne in mind in evaluating the 11 iden-
  tification" to be undertaken and it is evident that the Tribunal was totally
  oblivious to the above stark or hard realities of the situation, in its approach
  and conclusion in the matter. We compared the Identity Cards of two such
G persons - Permit No., 23 Sri Chandradeo Thakur - date of issue of identity
  card, 14.4.1978; and Permit No. 178, Sri Sachidanand Sahani, date of issue
  of the identity card, not easily traceable. They are available at pages 7 and
  11 of the papers containing the xerox copies of the identity cards. We
  talked lo the above persons, who were present in Court, in the presence
H of counsel and passed the following order on 4.5.1995 : (Page 264(A) -
           F.C.I. WORKERS UNIONv. F.C.I. [PARIPOORNAN,J.]                  613

main paper book)                                                                  A

         "One of the workers by the name of Chander Dev Thakur is present
         before us. We ~ave seen him and talked to him. His photograph
         on the Zerox 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      B
         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      c
         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."
                                                                                  D
        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            E
the appellant was a recognised Union till 1984 and.not thereafter, since no
recognition was given to Union dealing with contract labour. It is so stated
in the additional affidavit filed by the first respondent dated 17.7.1995. The
appellant has filed an affidavit in reply dated 18.7.1995. It has asserted that
it is the only relevant trade Union, representing the handling and loading
- unloading Mazdoors, contract labour, direct payment or departmental             F
employees employed by the first respondent in the whole of India. The
appellant has been representing the above mentioned workers for more
than three decades. It also appears from the papers filed by the appellant
that at various stages negotiations were carried on between the appellant
- Union and respondent. So it cannot be said that the petitioner is not a         G
valid or recognised Trade Union.

      10. The second aspect which requires to be highlighted is this: the
dispute originally concerned 464 workmen. It is stated that pending the
proceedings a few persons died. According to appellant-Union, the num-
ber of persons who are dead is '56' and that has been accepted by the H
    614                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A Tribunal. (Page 128 - paper book Vol. II.). It may be a case where
    employment should be provided to the nearest kith and kin of the deceased
    workman as provided by the relevant rules orders etc. From the later order
    of this Court in C.A. No.155/90 dated 17.1.1990, it is evident that in respect
    of 203 persons, there was no dispute by the Management. Perhaps, it was
B   in this context that evidence was led in respect of only 287 workmen. One
    clinching circumstance disclosed in the case in appreciating the rival plea's
    of the parties regarding the identity of the workmen, who were employed
    in the Siliguri Depot of the Food Corporation of India, deserves to be
    noticed. In the written statement filed by the appellant - Union before the
    Tribunal as early as 7.7.1978 in paragraph 10, it is stated thus :
c
            "10. That the Siliguri depot of the Corporation, under the office
            of the District Manager, Siliguri, 464 Handling Mazdoors, as whom
            in Annexure nzarkerl 'A'. with all relevant details, were employed on
            21.7.75, for doing the handling workers of the Corporation."

D                                 (p.37 - Main paperbook)(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 :
E
             "10. The statement as made in paragraph 10 of the written state-
             ment 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
F   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
G   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
H   was not disputed with reference to their photographs and zerox copies of
              F.C.J. WORKERS UNJONv. F.C.I. [PARIPOORNAN,J.]              615

the Identity cards, signatures therein etc. (though illustrative) points out     A
the palpably erroneous conclusion of the Tribunal that 'lwne"of the 287
persons, who claimed to be included in the list of "464" were able to
establish that they were employees of the Siliguri Depot of the Food
Corporation of India at the relevant time. We are of the view that this
Court in C.A. No. 155/90 by order dated 17.1.1990, only directed the
                                                                                 B
Tribunal to examine the identification of 464 workmen, including 203 per-
sons in respect of whom there was no dispute from the Management. There
was no direction nor was any need to find out whether the said workmen
mentioned in the list attached to the written statement filed by the appel-
lant dated 7.7.1978 worked for the Corporation at the relevant time_ and
that matter was settled by the judgment of this Court dated 28.2.35              c
rendered in C.A. No. l055(NL)/81. On the question as to whether the
identification directed by this Court vide judgment dated 17.1.1990 in C.A.
No. 155/90 has been made properly by the Tribunal, we are of the view, in
the light of our earlier order dated 4.5.1995, that we should proceed on the
basis that the finding of the Tribunal in this regard is vitiated. The counsel   D
for the appellant submitted before us that the concerned workmen
produced before the Tribunal the following to prove their identity:

         1.     Identity Cards issued by the Food Corporation of India (at-
                tested by one of the officers of the Corporation).
                                                                                 E
         2.     Permit Slips issned by the Corporation at the relevant time.

         3.     Ration Cards issued to the workmen.

         4.     Certificates issued by the Commissioner, Panchayats.
                                                                                 F
From the specimen of the xerox copy of the identity card. (all of them
similar) we find that apart from the signature of the workman concerned,
it was. attested by the labour union official and also by the official of the
first respondent Corporation. This fact was not denied at the time of
hearing. We should bear in mind the undisputed fact that the identity cards      G
are prepared by the Management and signed by one of their officials. In
this case, it is proved that one Shri S. Dutta (WW.2) has signed in most of
the identity cards. Sri S. Dutta is an official of the Corporation. His
signature is admitted (page 12 of the paper book, vol. II).

      12. We are also informed that documents like the Pay sheets, deduc-        H
    616                  SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A tion of Provident Fund Contribution, 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 posses-
  sion of the Corporation and directed bv the Tribunal to be produced, were
  not produced by the Corporation. It seems that the Management filed an
B 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. l055(NL)/81. The Tribunal abdicated its duty in not taking
  effective or proper steps to obtain the said crucial and primary documents.
C 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
D 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 and bill will be prepared setting out the names of the workmen and
  the out-turn of each, by the Depot Staff who are regular employees of the
  Corporation; and the payment will be made by the Corporation and the
  same will be distributed to each workman according to the piece rate, and
E the bills \vith the acquittance in original would be filed with the Corpora-
  tion. This Court also observed that the work rendered by each workman
  had to be entered in the muster roll register and each workman is required
  to be a party to the acquittance roll to be retained by the Corporation.
  Such registers, which should be available with the Corporation, were not
F even produced beforn the Tribunal. The first respondent Corporation
  could have demonstrated that the presumption flowing from the various
  identity cards, issued by it, permit slips, ration cards and the certificates
  issued by the Commissioner of Panchayats produced by the workmen, did
  not relate to either the 464 workmen or any of them, and who were
  mentioned in the list filed along with the written statement of the Union
G dated 7.7.1978. No such attempt was made by the Corporation, which at
   all times was in possession of the above primary records in the matter. It
   is evident that the best evidence available with the Corporation was with-
   held.

H         14. We have already adverted to the fact that the Corporation did
           F.C.I. WORKERS UNION v. F.C.I. [PARIPOORNAN,J.]                617

not challenge the list filed along with the written statement of the appellant   A
dated 7.7.1978; on the other hand, it was admitted in the written statement
filed by the corporation. On an examination of two illustrative cases
(persons who were present in Court along with their identity cards), we are
convinced, that the order passed by the Tribunal that "none" of the '1$7
workmen were able to establish that they were employees of the Siliguri
                                                                                 B
Depot of the Food Corporation of India, is a palpable error.


        15. The judgment of this Court in C.A. No. 1055(NL)/81 is conclusive
 to show that 464 persons attached to 'lhe list" are workmen of the Corpora-
 tion entitled to the benefit given by the judgment. The only further question
 that fell for consideration as a result of the later order of remit in C.A. No. C
 155/90 was "the identity of the 464 "workmen" and not whether they or any
 of them, had been in employment at the relevant time. On a perusal of the
order of the Tribunal we are inclined to hold that the Tribunal wholly
 misconceived 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 D
to whether all or any of the "46411 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 E
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 mem-
ber, who delivered the final award. The Tribunal has stated that the
evidence of the petitioner (workman) is not "duly proved", "legally proved' F
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 particulars in the case, in the
light of the requirements of the Evidence Act and !>as made much of the
minor lapses in evaluating the probabilities. There are vague generalisa- G
tions and an unreal or impractical approach to the materials available
before it. Even where the predecessor has found resemblance in the
signatures of the identity cards with other records, the later Tribunal has
discarded them. The Tribunal has categorised the identity cards as falling
under four groups ~- 'no resemblance', 'some resemblance', 'little H
    618                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A   resemblance' and 'clear resemblance' - based on no clear guidelines or
    principles and has based the conclusion at its ipse dixit. To crown all this,
    the Tribunal has totally failed to note that the Management has no explana-
    tion, regarding workmen other than "2Ch1 admitted by it, and it did not
    produce any person bearing the name in the list of "464" nor did it offer
B   any explanation, regarding such other persons (other than 203).


         16. On a review of the above facts and circumstances, we are satisfied
  that the order of the Tribunal is infirm. The only question is, what is the
  further order to be passed to reach a finality in this long drawn litigation.
  The matter is pending for nearly two decades. No doubt, counsel for the
C Corporation invited our attention to certain difficulties involved in "con-
  clusively" determining the identity of the persons a_s per orders of this Court
  dated 28.2.1985 and 17.1.1990. Be that as it may, long lapse of time cannot
  be ignored and this Court cannot shirk its responsibility in resolving the
  issue on the basis of available material, however, difficultoi arduous it may
D be. Afterall, it is a "human problem" that calls for an urgent decision.
  Taking into account the totality of the facts and circumstances and to do
  complete justice in the matter, we hold that the only way to resolve this
  issue is to direct the appellant, (trade union), through a responsible office-
  bearer, duly authorised, to identify the persons, ~hose identity are ques-
  tioned or disputed by the Management. On such identification being made
E by the appellant, the Management, shall reinstate them in service forthwith
  and also continue to employ such workmen, who shall be entitled to all the
  rights, liabilities, obligations and duties as prescribed for the workmen by
  the Corporation, as held by this Court in C.A. No. 10~5(NL)/81 dated
  28.2.1985. We would, however, like to stress the fact, that the concerned
F officer of the appellant Union, should act with extreme candour and
  circumspection. If it turns out later, that any lapse or &aud 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 penal-
  ties. 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
G 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
H along with the written statement dt. 7.7.1978).
           F.C.l. WORKERS UNIONv. F.C.l. [PARIPOORNAN,J.]                619

       17. Jn disposing of C.A. No. 1055(NL)/81 by Judgment dated               A
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 loss of wages. We direct that
such of those persons, who are properly identified as coming within the list
in the manner stated hercinabove, shall be reinstated in service forthwith.
                                                                                B
We are also satisfied, on an overall view of the matter, that the 1st
respondent Corporation - an instrumentality of the Stale - has unnecessari-
ly delayed the final disposal of the entire proceedings. If one expected a
"fair and impartial'" deal from the 1st respondent, he would feel disap-
pointed. We arc constrained to say so, on the facts of this case. So, we
further direct that such of those persons reinstated after identification, as   C
indicated above, shall also be paid back wages calculated at 70% of the
'"normal earnings'", from the date of the ex"[liry of the period specified in
C.A. No. 155/90, i.e., 17.4.1990, till they are reinstated. It is ordered
accordingly. We, therefore, set aside the order of the Tribunal appealed
against and allow this appeal in the manner indicated hereinabove with          D
costs - costs quantified at Rs. 25,000 payable to appellant by the 1st
respondent Corporation.

R.A.                                                   Petitions disposed of.