JUDGMENT :

A.S. SUPEHIA, J.

1. The present petition has been filed inter alia seeking for quashing and setting aside the award dated 15.02.2005 passed by Central Industrial Tribunal, Bhavnagar, in Reference ITC No. 81 of 1994, by which three workmen (drivers) viz. (i) Ashwin Nagjibhai Barad; (ii) Upendra Vishnuprasad Trivedi and (iii) Ranjit Nagjibhai Barad are held to be employee of the petitioner-Bank and the petitioner-Bank is directed to reinstate them in service with full back wages and all consequential benefits, after declaring their termination as illegal. A cost of Rs.5,000/- is also awarded.

2. The aforesaid workmen/three drivers raised a dispute in the year 1992 under the provisions of the Industrial Disputes Act, 1947 (the I.D. Act), through the respondent-Union with regard to their illegal termination which culminated into Reference ITC No. 81 of 1994.

3. The Tribunal, by the impugned award has allowed the reference. Shri Ashwin Nagjibhai Barad passed away during pendency of the reference before the Tribunal. Shri Upendra Vishnuprasad Trivedi has also passed away during the pendency of the writ petition. He is being represented through his legal heirs.

4. Learned advocate Mr.Dabhi appearing for the petitioner has submitted that total three employees had raised industrial dispute, which has been referred by the Central Government vide order dated 03.10.1994 for adjudication of the issue, whether the termination of the employees is illegal or not? It is submitted that the reference, which has been referred was itself null and void and without application of mind because Upendra Vishnuprasad Trivedi had worked with the petitioner-Bank from 1984 to 31.10.1994 and Ranjit Nagjibhai Barad had worked from 1988 to end of 2000, and Ashwin Nagjibhai Barad from 1987 till May 1991 hence, the workmen have not been terminated when the reference was referred. It is submitted that there cannot be any industrial dispute about termination, if workman is not terminated and hence, the reference itself is nullity.

4.1 Learned advocate Mr.Dabhi has further submitted that the Tribunal had come to an incorrect conclusion that there is a breach of Section 25F of the I.D. Act. It is submitted that this finding is without any basis and evidence on record of the case. Learned advocate has asserted that “continuous service” has been defined under section 25B of the I.D. Act. It is submitted that the concerned workmen have to complete 240 days in the preceding calendar year and the burden of proving completion of 240 days in the preceding calendar years is on the workmen. It is submitted that in the present award, there is not a single finding on the issue that the present workmen have completed 240 days in the preceding calendar year, and no evidence to that effect has been produced by the workmen.

4.2 Learned advocate Mr.Dabhi has further submitted that in the present case, though no evidence has been produced by the workmen that they have remained unemployed during the pendency of the reference by the Tribunal, the Tribunal has granted full back wages, which is against the provision of law. It is submitted that there was no relationship of master and servant between the employer and employee. It is submitted that as per the deposition of the Liaison Officer there was ban on appointing the drivers and the higher officers were allowed to engage drivers and payment was being done by the officers to the drivers, which in turn, would be reimbursed to the bank officers. It is submitted hence, the workmen were engaged by the bank officers in their personal capacity and not by the bank and, therefore, there is no question of relationship of master and servant between the bank and drivers. In this regard reliance is placed by the learned advocate for the petitioner upon the decision rendered by the Apex Court in the case of Punjab National Bank vs. Ghulam Dastagir, 1978 (2) SCC 358 to substantiate his case.

5. Per Contra, learned advocate Mr.Bhatt appearing