Patna High Court
Gridhar Gopal Tiwary And Ors. vs Union Of India (Uoi) And Ors. on 13 September, 1991
Equivalent citations: 1991(39)BLJR1250, (1993)IIILLJ293PAT
JUDGMENT Singh, J.
1. In this writ application, the petitioners have prayed for a suitable direction to the respondents for their continuance and regularisation of their services. The main question that arises for consideration is whether in the facts and circumstances of the present case, the Union of India in the Ministry of Labour could refuse to make a reference of the dispute under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter to be referred as the Act).
2. The petitioners were employed as workmen in the respondent Bank at Patna, on various dates between 1980 and 1984 and one of them had been appointed even in 1978. By order passed on various dates as mentioned in annexure 1, their services were terminated without notice and without payment of any compensation. They filed a complaint before the Assistant Labour Commissioner-cum-Conciliation Officer (respondent 2) against their wrongful termination. The conciliation proceeding ended in failure and the Conciliation Officer submitted his report recommending a reference of the dispute between the parties to the Industrial Tribunal. The report of the Conciliation Officer is annexure 3.
3. The grievance of the petitioners is that without giving them an opportunity to be heard in the matter and without calling for further report from the Conciliation Officer before whom, at the particular time, the proceeding was still pending, the Desk Officer of the Ministry of Labour by a letter dated 3 March 1988, stated that there did not appear to be any dispute pending at that stage between the management of the Bank and their workmen. The Government; communication has been annexed marked annexure 4, On receipt of the same, the petitioners found from the said notice (annexure 4) that a notice had been issued in "The Times of India," dated 7 July 1987 (Patna) Edition, asking all concerned availing offer of an opportunity to all ex-temporary and temporary personnel engaged for absorption in the Bank's permanent services by attending the recruitment test, etc. (annexure 5).
4. It is submitted on behalf of the petitioners that the Government of India in the Ministry of Labour did not apply their mind to this notice before making the order since this notice was not in conformity with Section 25H of the Act which provides:
"Where any workmen are retrenched and the employer proposes to take into his employment any person, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer them-selves for re-employment and such retrenched workmen who offer themselves for re-employment shall have preference over other persons".
5. It was further submitted that it would appear from the said notice that persons were employed in temporary services after the petitioners and were still continuing in service and their services were not terminated and that the offer of permanent absorption by notification (annexure 5) was not to the retrenched employees. There is nothing in that notice to show that they would have preference over other persons or that it is an automatic absorption since the Bank reserved the right to refuse employment after proper selection for which applications have to be made and to be considered and screened. The said notice is not in terms of the procedure prescribed in rules 77 and 78 of the rules.
6. It has further been pointed out that identical disputes had been referred by the same Ministry of Labour to the Industrial Tribunal between the same Bank and its workmen at Kanpur by notifications, dated 28 February 1986 and June 5, 1987, and both are pending. The notifications are annexures 6 and 6A. An award has also been made in favour of those workmen on 8 August 1987 in an industrial disputes referred to the same Tribunal being Industrial Dispute No. 41 of 1986 and the same was affirmed by the Allahabad High Court in its Judgment dated 16 July 1987. The Bank having failed, have preferred an appeal to the Supreme Court but the Supreme Court refused to grant stay of operation of the award, as a result of which various temporary workmen who were retrenched in the like manner had to be taken back and they are continuing in the service of the Bank. It has, thus, been contended that the Bank and the Ministry of Labour discriminated the workmen employed in different regions of the same Bank and the workmen of the same Bank employed at Patna as temporary staff, who have been retrenched in the same manner by the Bank.
7. In the circumstances, therefore, the petitioners have contended that the respondent Bank was not justified in terminating the services of the petitioners without notice in contravention or the provisions of Section 25H of the Act and rules 76, 76A, 77 and 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter to be referred as the rules). It is, thus, submitted that the Government of India in the Ministry of Labour could not refuse to make reference of the disputes on the basis of the failure report submitted by respondent 2 under Section 12 of the Act and that the reasons given for refusing to make reference were not sufficient reasons for such refusal.
8. It may be stated that after considering each and every aspect of the matter, the Conciliation Officer recommended the dispute for reference to the Industrial Tribunal for adjudication on the following terms:
"Whether the action of the management of the State Bank of Bikaner and Jaipur, in terminating the services of all the ex-employees at Patna Branch was justified and legal in view of the provisions of Section 25G and in not considering them for further employment as provided under Section 25H of the Industrial Disputes Act? If not, to what relief the workmen are entitled?"
9. The petitioners were appointed after passing the written and oral tests conducted by the bank management as temporary ones at Patna Branch in the State Bank of Bikaner and Jaipur. The services of the workmen were extended from time to time. Their services were terminated without assigning any reason. The workmen stated that the termination of services was retrenchment within the ambit of the definition of retrenchment under the Industrial Disputes Act, 1947. They further stated that the management also failed to follow the provisions of Section 25H of the Act and rules 77 and 78 of the rules. It was pointed that, while terminating the services, the management retained junior workmen in the service and the principle of "last come first go" was not followed. The management of the State Bank of Bikaner and Jaipur also appointed a number of workmen after the termination of their services disregarding the provisions of Section 25H of the Act. It was also urged that the management of the bank adopted unfair labour practice in depriving them continuous service by adopting the technique of appointing workmen for a short time and after completion of the said period, they appointed fresh hands on the same and similar kind of job ignoring their case for further appointment. Attention was also drawn to the provisions of Para 522(4) of the Sastry award whereby it was obligatory on the bank and the management to give notice for 14 days before terminating the services, which was not followed.
10. As against this, the management of the bank stated in the written statement before the Conciliation Officer that they had not terminated the services of the work-men but it came to an end automatically as per the letter of appointment, they had completed one year of service and as such they were not entitled to service, their appointment was purely on temporary basis and for permanent absorption the procedure of passing the recruitment test was not followed; they were not appointed according to the procedure but through back door, and that Act of 1947 having been amended with effect from 18 August 1984 and having come into force on 18 August 1984, the matter of termination is not covered by the definition of retrenchment. It was further stated that the benefit of Sections 25G and 25H of the Act would be available to persons who became eligible for retrenchment compensation under Section 25H of the Act and there was no violation of Section 25G and 25H as also other provisions of the Act and rules as the workmen had not put in 240 days of service and lastly that the management had not committed any unfair labour practice.
11. Dealing with each of the contentions raised on behalf of the management, the Conciliation Officer held that the contention of the management that the Industrial Disputes Act amended in 1984 the matter of termination is not covered by the definition of retrenchment has no bearing with the issue. It came into force on 21 August 1984, and not on 18 August 1984, when the services of the workmen were terminated. The Amending Act was not retrospective. The stipulation of the period of termination of service of the workmen does not confer any mandatory right to terminate the services of the workmen. It is not stipulated under the provisions of the Act that a workman would not get benefit if he has not put continuous service of one year. Section 25H of the Act is to be followed only in respect of cases covered by Section 25F and not to the workmen who have lesser number of days of service. All those workmen who had put less than 240 days in service are to be covered by Ss. 25G and 25H of the Act and rules 77 and 78 of the rules and they can claim relief under those provisions. The plea of management that they came through back door is not satisfactory. For any lapse on the part of the management they cannot be blamed.
12. The workmen were appointed after due test and interview and in course of employment test could have been conducted, if so provided, as it is very common that appointments are made temporary initially and after certain period, certain rules for permanency of the workmen are framed/followed. It was, thus, desirable that the bank should have taken steps for making the workmen permanent in the bank's roll while they were continuing in service in a temporary capacity particularly when their services were praiseworthy. But the management failed to do so due to certain vested interest in order to deny the rightful claim of the workmen and went on recruiting fresh hands while dispensing the old ones. Keeping the workmen for a very short period and alluring others to give bank service and dispensing the services of the workmen and recruiting fresh hands caused unfair labour practice and exploitation of labour.
13. The Conciliation Officer also rejected the contention of the management that the workmen were not eligible for the benefit of the Act under Section 25G and 25-H. Sections 25-F and 25-G are distinct. Section 25-F is applicable in all cases of retrenchment as held by the Kerala High Court in the case of P. Prabhakaran and Ors. v. General Manager, Kerala State Road Transport Corporation, and Anr. The Kerala High Court did not see any warrant whatsoever for restricting scope of Section 25F by reading into a limitation that the benefit of the section would be available only in the case of workmen who satisfy the condition regarding the length of continuous service specified in Section 25F. It was held that Section 25G will get attracted in all cases of retrenchment, Section 25G prescribes the procedure for retrenchment and it will be attracted to all cases of retrenchment and the procedures laid down on the observance of the procedure of "last come first go" will have to be strictly followed by the employer if the retrenchment is to be regarded as valid, save in cases covered by the last portion of the section namely where, "for any reason to be recorded, the employer retrenches any other workmen."
14. The contention of the management regarding non-violation of Section 25 and 25-H of the Act was not found to be correct since the management had failed to follow the procedures laid down under Section 25G and 25-H and rules 77 and 78 of the rules. Section 25-F and 25-G are independent of each other and either of them has to be followed at the time of effecting retrenchment. Whereas Section 25-F stipulates condition necessary to be complied with while effecting retrenchment, Section 25-G casts an obligation to follow the procedure prescribed therein and failure to comply with either Section 25-F or follow Section 25-G will render the retrenchment invalid. Therefore, there is nothing in the Act to show that the benefit of Section 25-G will be allowed only when Section 25-F is to be followed. In the present case, the bank management dispensed with the services of senior workmen while retained the services of junior workmen. Thus it violated the principles of "last come first go". It was obligatory on the part of the management to follow the principle of re-employment as provided under Section 25-H of the Act. Here, the management failed to absorb the retrenched hands while a number of fresh hands were recruited by them.
15. According to rules 77 and 78 of the rules, the management was required to maintain seniority list of the retrnched workmen under Rule 77 and to re-employ the retrenched workmen under Rule 78 by issuing registered letter before appointing fresh ones. The failure to follow this mandatory provision has been validated by the action of the management in terminating the services of the workmen. Even before the Conciliation Officer the management failed to furnish
(a) termination letter;
(b) seniority list;
(c) written test paper;
(d) list of workmen appointed after termination of services.
This makes it abundantly clear that the management was not adhering to the provisions of the rules under which it was mandatory to maintain seniority list of workmen. After the termination of the services of the workmen the admitted position is that the bank management appointed a number of fresh hands but the list of such workmen was not furnished, even though it was called for during course of conciliation proceeding.
16. In order to cover up all these they put up a plea that they are going to give one time opportunity for permanent absorption in the bank services to the temporary employees. This step of the management is an afterthought after a long lapse of time. The pertinent question for consideration would be whether this opportunity will correct their past mistakes after long years and after appointing a number of fresh hands after the retirement of old employees. It is obvious that such mistakes cannot be rectified which were since beginning in violation of Section 25-H of the Act. On account of these mistakes, the old employees have been thrown in the street and they are facing grim situation of unemployment in hard days. Now several years have passed, the workmen cannot go anywhere due to overage and change in the educational qualifications. They must have planned their life for future while entering into bank's service in earlier days.
17. After considering all these various aspects and rival contentions of the parties, the Conciliation Officer concluded:
(a) that the termination of the services of the workmen is retrenchment.
(b) that the workmen were entitled to be given 14 days' notice under Para 522 (4) of the Sastry Award;
(c) that the termination of services would constitute retrenchment;
(d) Section 25G has been violated;
(e) procedure under Section 25H has not been followed, while recruiting fresh hands;
(f) termination order was passed in violation of rules 77 and 78 of the rules.
(g) the amendment of definition of retrenchment vide Notification, dated 18 August 1984, was not applicable in this case since it came after the termination of the services of the workmen and the amendment was not retrospective;
(h) similar cases have been referred on similar disputes to the Industrial Tribunal for adjudication; and
(i) the management committed unfair labour practice, exploitation of labour by adopting a technique of appointment of workmen for a very short spell of time and then dispensing with their services and again appointing for a short spell of time and dispensing with their services.
It was in this view that the Conciliation Officer recommended for a reference of the disputes to the Central Government Industrial Tribunal, Dhanbad, Bihar.
18. In the case of TELCO Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. 1989-II LLJ 558 it was held-
"....while exercising power under Section 10(1) the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which could certainly be in excess of the power conferred on it by Section 10.... It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended'. . . But the formation of opinion as to whether an industrial dispute 'exists or is apprehended' is not the same thing as to adjudicate the dispute itself on its merits..."
19. In the case of Ram Avtar Sharma and Ors. v. State of Haryana and Ors. 1985-II LLJ 187, the Supreme Court held in Para 7 at page 284:
- if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. In State of Bombay v. K.P. Krishnan and Ors. 1960(2) LLJ 592, It was held that a writ of mandamus would lie against the Government if the order passed by it under Section 10(1) is based" on or induced by reasons as given by the Government are extraneous, irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in respect of an administrative order. May be, the Court may not issue a writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government, for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. This legal position appears to be beyond the pale of controversy."
20. After having considered the facts and circumstances of this case and having given my best consideration in the matter, I am of the view that the disputes should be adjudicated by the Industrial Tribunal. I, therefore, direct the Union of India in the Ministry of Labour to make a reference under Section 10(1) of the Act of the disputes raised by the workmen to an appropriate Industrial Tribunal within one month from today.
21. In the result, this application is allowed but without costs.
Om Prakash, J.
22. I agree.