Orissa High Court
The Deputy General Manager vs Shri Prakash Chandra Purohit on 20 October, 2020
Author: K.R. Mohapatra
Bench: Mohammad Rafiq, K.R. Mohapatra
THE HIGH COURT OF JUDICATURE FOR ORISSA
AT CUTTACK
W.P.(C) NOS. 15759 & 16033 OF 2005
The Deputy General Manager,
State Bank of India, Zonal Office,
Berhampur. ...... Petitioner
[Opp. Party No.2 in
W.P.P(C) No.16033 of 2005]
-Versus-
Shri Prakash Chandra Purohit,
Ex-temporary Messenger, State Bank
Of India, Matikhalo Branch, Chatrapur
and another ...... Opp. Parties
[Petitioner in W.P.(C)
No.16033 of 2005]
Advocate(s) who appeared in this case through
Video Conferencing mode:-
__________________________________________________________________
For Petitioner : Mr. P.V. Balakrishna
For Opp. Parties : M/s. R.K. Bose, G. Bhol
& J. Nayak
(O.P. 1)
__________________________________________________________________
HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
AND
HONOURABLE MR. JUSTICE K.R. MOHAPATRA
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Date of Hearing : 27.08.2020 Date of Judgment : 20.10.2020
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JUDGMENT
Per. K.R. MOHAPATRA, J. Both the writ petitions have been filed assailing the judgment and award dated 03.06.2005 passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar (for short 'the Tribunal') in I.D. Case No. 20 2 of 2000, whereby he directed the Management of State Bank of India, Zonal Office, Berhampur in the district of Ganjam (for short 'the Management') to pay all retrenchment benefits (except notice benefits) to the Workman, namely, Prakash Chandra Purohit, Ex-Temporary Messenger of State Bank of India, Matikhalo Branch, Devi Nagar, Chatrapur in the district of Ganjam (for short 'the Workman') calculated from the date of his (Workman's) initial joining, i.e., on 30.07.1985 till the agreement with the Federation came into being and further to pay a lump- sum amount of Rs.50,000/- to the Workman as well, in lieu of reinstatement in service.
2. W.P.(C) No.15759 of 2005 has been filed by the Management (Deputy General Manager, State Bank of India, Zonal Office, Berhampur in the district of Ganjam) and W.P.(C) No. 16033 of 2005 has been filed by the Workman. Since both the writ petitions have been filed assailing the self-same judgment and award passed in I.D. Case No. 20 of 2000, the same were heard analogously for the sake of convenience and are disposed of by this common judgment.
3. I.D. Case No. 20 of 2000 was set in motion pursuant to a reference made by the Government of India in the Ministry of 3 Labour vide their Order No.L-12012/321/99/IR (B-1) dated 27.09.2000, which is as follows:
"Whether the action of the Management of State Bank of India in terminating the services of Shri Prakash Chandra Purohit with effect from 15.02.1997 is justified? If not, to what relief the Workman concerned is entitled?"
4. On the basis of the aforesaid reference, I.D. Case No. 20 of 2000 was initiated. Upon receipt of notice in the said I.D. Case, the 2nd party Workman filed his statement of claim contending that pursuant to an interview, the Workman was selected and engaged as a Temporary Messenger by the Management in the Agriculture Development Branch of State Bank of India at Khodasingi, Berhampur with effect from 30.07.1985 and was disengaged from 27.01.1986. He was again re-engaged at State Bank of India, Chatrapur Matikhalo I.R.E. Branch with effect from 20.02.1990 and continued as such till 14.05.1995 and again from 15.05.1995 to 15.02.1997 as a Temporary Messenger against a leave vacancy of permanent Messenger, namely, M. Kali Prasad Rao of the said I.R.E. Branch. Although the Workman was engaged as a Messenger against a permanent vacancy, he was not allowed to draw the scale of pay meant for the said post, which amounts to unfair labour practice. 4 However, the Workman was given Temporary Messenger's scale in the last spell of his engagement, i.e., from 01.05.1995 to 15.02.1997. While continuing as such, the Workman was served with an official retrenchment letter on 31.12.1996, but was allowed to continue as such till 15.02.1997, when he was retrenched. In that process, the Workman has completed 240 days of service, but he was not paid any compensation in terms of Section 25-F of the Industrial Disputes Act, 1947 (for short 'the I.D. Act'). While retrenching the Workman, the Management allowed his juniors, namely, Krushna Chandra Panda, K. Upendra Rao and Shri Sudhakar Pattnaik to continue in service in contravention of Section 25-G of the I.D. Act. The retrenchment was effected on 15.02.1997, which was without following due procedure of law. As such, the same was illegal. Hence, the Workman claimed that he was entitled to be reinstated in service with all legal benefits. 4.1 The first party- Management filed its preliminary objection denying the claim of second party-Workman. It was contended therein that in the year, 1997, the Workman after his discontinuation in service had filed a writ petition in OJC No.13268 of 1997 before this Court praying, inter alia, for 5 permanent absorption in the service of State Bank of India. Similar other writ petitions were also filed by some other similarly situated persons seeking similar direction from this Court. This Court, after hearing the parties at length, dismissed the said writ petitions by an elaborate and extensive judgment dated 15.05.1998, which is reported in (1998) 86 CLT 834 (Abhimanyu Mandal & others -v- S.B.I. & others). However, the Workman for the reasons best known to him sought for withdrawal of his writ petition seeking liberty to file a fresh writ petition. The writ petition was accordingly allowed to be withdrawn vide order dated 14.09.1998 with the liberty as sought for. The judgment in Abhimanyu Mandal (supra) was challenged by the petitioners therein before Hon'ble Supreme Court in SLP Nos.11886 to 11888 of 1998. All the SLPs were dismissed vide order dated 16.07.1999 thereby confirming the order of this Court. However, the Workman without filing any writ petition for which liberty was granted, raised an industrial dispute before the Asst. Labour Commissioner (Central), Bhubaneswar by submitting a representation dated 29.12.1998. On failure of conciliation, a report was submitted to the Secretary to Government of India in Ministry of Labour, New Delhi vide letter 6 no. 7(1)/99/BBS IB dated 10.09.1999. The Government of India in Ministry of Labour, New Delhi (appropriate Government) on application of mind and examining the matter thought it proper not to refer the matter to the Tribunal for adjudication and communicated the same vide their letter dated 17.12.1999 holding as under:
"That the disputant has already availed chances of being permanently absorbed by the management but had failed. The disengagement was on the basis of an agreement reached between the management and the majority Union to which immunity cannot be sought by an individual affected workman. The matter has also been judicially reviewed by the Hon'ble High Courts and Supreme Court of India in 1998 (SLP No.11886-11888 of 1998)".
5. The said order was also communicated to the Workman. But for the reasons best known to him, the Workman did not challenge the same. As such, the communication dated 17.12.1999 reached its finality. When the matter stood thus, on personal approach of the Workman, the Chief Labour Commissioner (Central), Government of India, Ministry of Labour, New Delhi who had no authority whatsoever, wrote a D.O. Letter No.10(7)/2000-con-I dated 03.02.2000 to the Regional Labour Commissioner (Central), Bhubaneswar enclosing a copy of the representation of the Workman and requested him to look into the matter at his personal level and 7 take appropriate action. Basing upon the said letter, the Asst. Labour Commissioner (Central), Bhubaneswar vide letter dated 10.03.2000 requested the Management to look into the matter at their level and to give their comments in writing. In response to the same, the Management submitted a detailed reply on 27.03.2000 denying the allegations made in the representation and disclosing that discontinuation of engagement of the Workman does not amount to retrenchment as it was done pursuant to the settlement arrived at between the Labour Union and Management. Thereafter, without conducting any conciliation proceeding whatsoever, the matter was referred to the Tribunal for adjudication of the aforesaid reference. It is averred that due to the previous refusal of the appropriate Government to refer the matter to the Tribunal vide its letter dated 17.12.1999, the present reference was illegal and without jurisdiction.
6. The Management-Bank also filed its written statement stating that during the period from 1985 to 1987, the Workman was engaged intermittently at Matikhalo I.R.E. Branch, as and when required. During the said period, the Workman had worked only for 179 days in the said Branch. Likewise, several 8 other temporary employees were being engaged by the Management in its different branches as and when required, against leave vacancies or for any other valid reason.
7. While the matter stood thus, in order to avoid industrial unrest and to have a cordial relationship between the Management and the Workman, a settlement was arrived at between the Management of State Bank of India and All India State Bank of India Staff Federation (for short 'the Federation') on 17.11.1987 in terms of Section 2(p) read with Section 18(1) of the I.D. Act read with Rule 58 of the Industrial Dispute Rules (for short 'the Rules'). The salient feature of the settlement was to give opportunity to the temporary staff like the Workman, a chance for their absorption/permanent appointment against vacancies likely to arise during 1987 to 1991. In the said agreement/settlement, the temporary employees covered under the said settlement were divided into three categories.
"Category-A : Those employees who have completed 240 days of temporary service in any continuous block of 12 months or less in between 01.07.1975 to 31.07.1988;
Category-B : Those who have completed 270 days of temporary service in any continuous block of 36 calendar months after 01.07.1975 within 31.07.1988; and 9 Category-C : Those who have completed a minimum of 30 days aggregate temporary service in any calendar year after 01.07.1975 or a minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 01.07.1975 to 31.07.1988."
8. It was agreed upon between the parties to the said settlement that interview will be conducted by a selection committee to determine the suitability of the candidates for permanent appointments in the Management-Bank. After completion of the interview, a panel of all suitable candidates was finalized for the purpose of full time and part time appointment in messengerial and non-messengerial position. The names of the suitable candidates were enlisted in the wait list in their respective category taking into consideration their length of aggregate temporary service put in the Bank. The said panel was valid up to December, 1991. Again by virtue of another settlement, the period of validity of the settlement was extended till December, 1992. Subsequently, the Federation again took up the issue with the Bank for casual workers who had worked in leave/casual vacancies like messenger, Farash, Cash-Coolies, Water Boys, Sweepers etc. in the Bank. Accordingly, another agreement was entered into between the 10 Bank and Federation on 27.08.1998, whereby the agreements dated 17.08.1997 and 16.07.1998 were modified. Under the terms of latest agreement dated 27.08.1998, the persons (Workmen) who were engaged to work against leave vacancies or on casual basis as Messengers, Farash, Cash-Coolies, Water Boys, Sweepers etc. were given a chance for being considered for their permanent absorption in the Bank against the vacancies likely to occur between 1988 to 1992. Accordingly, the application forms were invited from the eligible persons including the Workman, who was in Category-C employees. As the norms of providing messengerial staff could not be finalized till 1991, another agreement was entered into between the Management-Bank and Federation on 19.01.1991. As per the said agreement, the temporary employees who were not empanelled and could not appear in the previous interview were given another chance to appear at the fresh interview and accordingly, a supplementary panel of such candidates was also prepared. In the said agreement, the period of anticipated vacancies was also extended from 1988 to 1992 and from 1995 to 1996. But, the task of determination of number of messengerial vacancies arose in all the Branches and officials of 11 the Management-Bank could not be finalized and the process of obtaining the sanction for filling up vacancies from the Government or Reserve Bank of India, could not be completed till 1995. As such, another settlement was arrived at between the Management-Bank and Federation on 30.07.1996 and the terms of earlier agreement were partially modified and it was agreed upon between the parties that panel of suitable candidates will be kept alive up to March, 1997 for filling up vacancies existing as on 31.12.1994. It was also agreed upon between the parties that modalities of drawing names from the empanelled candidates should be decided administratively on circle to circle basis depending upon the local requirement in consultation with the Federation affiliated to the Management. For that purpose, another agreement was also arrived at the circle level between the Management and Union on 21.11.1996 with regard to modalities for filling up vacancies in the subordinate cadre from the panel of suitable candidates. Accordingly, as many as 58 sanctioned vacancies were filled up from 1984 to 31.03.1997 as per the provisions of the said agreements. Taking into consideration the declaration made by the Workman in his application, he was placed in Category-C 12 and his name was placed at Sl.No. 155 in the said wait list. As per the terms of the said settlement, the wait list in which the name of the Workman appeared lapsed on 31.03.1997. Further, a permanent messenger from the said wait list was posted at Matikhalo I.R.E. Branch where the Workman was continuing temporarily till his disengagement. As such, there was no other option for the Management but to discontinue his engagement. The case of the Workman is squarely covered under the provision of Section 2(oo)(bb) of the I.D. Act. Hence, compliance of Section 25-F of the I.D. Act as alleged was not required at all. It was further averred in the written statement that as per the said declaration made by the candidates including the Workman with regard to the temporary service rendered by them during the period from 01.01.1975 to 31.07.1988, the same was taken into consideration for their empanelment and accordingly, the Workman was placed at Sl. No.155 of the waitlisted candidates. The persons who had worked longer than that of the Workman were placed above the Workman in the panel. The Management strictly followed the terms of agreement in filling up the vacancies from the panel on the basis of seniority. Thus, after expiry of the panel, the rest of the candidates were not entitled 13 to raise any claim whatsoever for being considered for their permanent absorption in the Bank. Thus, the Workman could not have raised any grievance with regard to his discontinuance much less his permanent absorption after 31.03.1997, as it would frustrate the very purpose of the bipartite settlement made as per the provisions of the I.D. Act. Thus, the 1st party- Management prayed for answering the reference in favour of the Management.
9. Learned Tribunal taking into consideration the materials available on record more particularly the terms and conditions of the settlement arrived at between the Management and Federation from time to time came to the following conclusion:
"10. It was argued by the Management that since under the various settlements with the Federation no temporary workers were to be terminated before the expiry of the currency period of the settlement i.e. before 31.3.1997, the workman was retained on job during the above period up till February 1997 and thereafter he was disengaged through a notice Ext.7 as there was no chance of his being regularized before 31.3.1997, the agreed date. It was also argued that but for the settlement with the Federation on 17.11.1987, the workman would not have been given further engagement from 20.2.1990 when by then he had already been disengaged from 27.1.1986 and therefore his engagement from 20.2.1990 onwards should not be counted for the purpose of Section 25-F of the I.D. Act the said engagement being the outcome of the agreement with the Federation. It was further submitted that under the Industrial Law any agreement or settlement with the Federation carry the force of law and therefore when the 14 workman has been discharged in terms of such settlement, the same cannot be termed otherwise as illegal. Rather the same is to be held to have taken place due to operation of law for which the management cannot be blamed for whatsoever reasons."
However, proceeding further with its discussion, learned Tribunal came to the following conclusion:
"Therefore, in these premises, the termination of the workman amounts to retrenchment and as it has been made without payment of any retrenchment benefits, the action of the Management is hereby declared bad under law. So far on the relief that is likely to flow from the above order, I would like to point out here that after the settlement referred to above the old practice of retaining temporary workers have been given a go-bye after regularization of all eligible temporary workers and as the workman in question has successively failed twice to qualify in the interview held in accordance with such settlement, he is no more entitle for regularization or reinstatement in service. In view of the same the Management is directed to pay all retrenchment benefits (Except notice benefits) to the workman calculated from the date of his initial joining on 30.7.1985 till the agreement with the Federation came into being and in addition to the same pay a lump-sum amount of Rs.50,000/- to the workman in lieu of reinstatement in service."
10. The Management-Bank assails the impugned judgment and award on the ground that once the Tribunal came to a conclusion that termination of the Workman was justified, it could not have proceeded further to grant any relief holding the action of the Management as bad in law. On the other hand, the Workman assails the impugned judgment and award on the ground that when learned Tribunal found the action of the 15 Management in terminating the services of the Workman to be bad in law, the only conclusion that emanates from such finding was to reinstate him in service with full back wages. On the aforesaid background, learned counsel for the respective parties made their submissions.
11. Mr. Balakrishna, learned counsel for the Management- Bank reiterating the stand of the Management in the written statement contended that certain Temporary Messengers/Daily Wagers, who had worked at different branches of the State Bank of India under Bhubaneswar Circle, Odisha, had filed different writ petitions before this Court seeking regularization of their services in the Bank. All the writ petitions were heard together and a common judgment was passed on 15.05.1998, which has been reported in (1998) 86 CLT 834, (Abhimanyu Mandal and others -v- State Bank of India and others), wherein this Court after discussing various clauses of the settlement, held as follows:
"6. The extracted portions clearly show that panels of temporary employees/daily wagers/casual employees were to be kept alive upto March 1997, as per the norms agreed to between the Bank and the Federation and the identification of messengerial vacancies was to be done on the basis of new norms to be finalised thereafter. It was also agreed that the modalities about drawing names from either the panel of temporary employees or the panel of daily wagers and casual labour shall be decided 16 administratively on Circle to Circle basis depending upon the local requirements in consultation with the Federation's affiliate by the Circle Management. Irresistible conclusion, therefore, is that after March 31, 1997 the panel ceased to be operative, and new terms were to be operated thereafter. The modalities about drawing names from either the panel of temporary employees or the panel of daily wagers and casual labour was to be decided administratively on Circle to Circle basis depending upon the local requirements in consultation with the Federation's affiliate by the Circle Management. Therefore, the local requirements were to be kept in view and it was permissible to draw names from both the list of temporary employees and the list of daily wagers/casual labourers on the basis of aforesaid settlement made in the meeting held on November 21, 1996 between Personnel & H.R.D, Department and S.B.I. Staff Association, Bhubaneshwar. Relevant portions of the decision have been extracted above. Obviously the modalities worked out between the Bank and the S.B.I. Staff Association has reference to the settlement dated July 30, 1996. There is no dispute so far as that aspect is concerned. What is disputed is the ratio and the power to do that. It is stated that the Federation is not competent to arrive at a settlement. Whether the Federation is competent to enter into the settlement cannot be adjudicated in these batch of writ applications, more so when the Federation is not a party to the writ applications. Additionally the daily wagers whose cases came to be considered on the basis of impugned decisions (settlements) have not been impleaded as parties. All the previous settlements as referred to above were taken note of and a composite scheme was formulated and the modalities were left to be determined administratively on Circle to Circle basis depending upon the local requirements in consultation with the Federation's affiliate. There is no dispute about correctness of the minutes recorded. The decision was taken administratively, and on the basis of the settlement arrived at. The currency of the arrangements made on the basis of the impugned decisions/settlements has come to an end on March 31, 1997. It is pleaded by the petitioners that the modalities may be followed in future though new norms have been fixed as yet. We do not think it necessary to go into those hypothetical questions. It goes without saying that if the petitioners feel aggrieved about the norms when 17 formulated the same can be questioned before the appropriate forum/authority."
12. The Workman had also filed a writ petition bearing OJC No.12368 of 1997 before this Court, but for the reasons best known to him, he withdrew the said writ petition on 14.09.1998 seeking liberty to file a better writ petition. However, without filing the same, he moved the Asst. Labour Commissioner (Central), Bhubaneswar. As discussed above, the Asst. Labour Commissioner, who had no authority under law, entertained the same but the fact remains that earlier appropriate Government on application of mind had categorically held that there is neither any existing nor any apprehended industrial dispute for which he refused to refer the matter for adjudication. In that view of the matter, the reference in question is without jurisdiction. It was further held that the engagement of the Workman was an outcome of the terms of the settlement arrived at different points of time between the Management-Bank and Federation. As per the terms of the said settlement, the Workman had submitted his application and considering his period of engagement as well as suitability, he was placed at Sl.No.155 of Category-C Employees. Since the Workman could not be absorbed permanently due to want of permanent vacancy during the life time of the said 18 settlement, the Management-Bank had no other option but to discontinue his service to give way to the person who was eligible to get permanent absorption as Messenger in Matikhalo I.R.E Branch of the Management-Bank. The said wait list was valid till 31.03.1997. As per the terms of the settlement, during the intervening period, when the process of absorptions of temporary workmen was going on, they were engaged on daily wage basis in the Branches of the Management-Bank till permanent messengers were appointed in the said Branches. Accordingly, the Workman was engaged intermittently on daily wage basis in the Matikhalo I.R.E. Branch of the Management-Bank from 20.02.1990 to 14.04.1995 for a total period of 678 days and again from 01.05.1995 to 15.02.1997 for a period of total 532 days till a permanent messenger was posted in the said Branch from the wait list. Consequently, the Workman was disengaged on 15.02.1997. The continuance in temporary status as well as disengagement of the Workman was as per the terms of the settlement. As such, the disengagement of the Workman is squarely covered under Section 2(oo)(bb) of the I.D. Act. Taking into consideration the same, learned Tribunal held that the appointment of the Workman with effect from 20.02.1990 and 19 subsequent termination with effect from 15.02.1997 occurred due to operation of law for which the Management-Bank cannot be blamed for any reason whatsoever. As such, Section 25-F of the I.D. Act has no applicability to the same. It was further held that the action of the Management-Bank insofar as termination of the Workman in the year 1997 is concerned, the same is justified. Having held so, learned Tribunal lacks jurisdiction to travel beyond the reference and give a finding to the effect that the engagement of the Workman for 179 days on rotation basis with effect from 30.07.1985 amounts to unfair labour practice for the reason that although continuous job was available, the Workman along with others similarly placed were utilized by giving them engagement for 179 days with a view to avoid regularization of their service. The finding of learned Tribunal is speculative inasmuch as it is the case of none of the parties that the Workman was not allowed to continue for more than 179 days in his first spell of engagement to avoid regularization. It was further held that the settlement between the Management- Bank and Federation has the effect of law and is binding on the parties. The Workman also does not dispute the terms of settlement. On the other hand, adhering to the same, he had 20 made an application and taking into consideration the continuance of his service, he was placed at Sl. No.155 of Category-C workmen. The same was also not disputed by the Workman. The only grievance of the Workman was that although the persons who were junior to him were given engagement, he was ignored, which is in violation of Section 25-G of the I.D. Act. In fact, no employee below the Workman in Category-C wait list was given engagement. As such, the Workman cannot have any grievance on the same. In that view of the matter, he prays for setting aside the impugned award to the extent of directing the Management-Bank to pay all retrenchment benefits (except notice benefits) to the Workman calculated from the date of his initial joining on 30.07.1985 till the agreement with the Federation came into being as well as to pay a lump-sum amount of Rs.50,000/- to the Workman in lieu of reinstatement in service.
13. Mr. Bose, learned counsel for the Workman, on the other hand, vehemently opposed the contention of Mr. P.V. Balakrishna and contended that the Workman on being selected in a selection process was engaged on 30.07.1985. Although he had completed more than 240 days immediately preceding the 21 date of his disengagement, the Management-Bank without complying with the provisions of Section 25-F of the I.D. Act terminated his service. A petition was filed by the Workman before learned Tribunal to call for the records of other junior employees who were given engagement ignoring the case of the Workman from the Management and a direction was made to consider such petition at the time of hearing, but the same was not considered, which could have thrown light on the illegalities committed by the Management in ignoring his case for regularisation. Learned Tribunal gave much emphasis on the issue of settlement which is the basis of termination of the Workman with effect from 15.02.1997 without complying with the provisions of Section 25-F of the I.D. Act. Be that as it may, the settlement cannot override the statutory mandate. A contract, which is otherwise valid, must however satisfy the test of public policy not only in terms of the statute but also in terms of Section 23 of the Indian Contract Act, 1872. In support of his case, he relied upon the decision in the case of Oswal Agro Furane Ltd. and another -v- Oswal Agro Furane Workers Union and others, reported in (2005) 3 SCC 224, wherein the Hon'ble Supreme Court at paragraph-15 held as follows: 22
"15. A settlement within the meaning of Section 2(p) read with sub-section (3) of Section 18 of the Act undoubtedly binds the workmen but the question which would arise is, would it mean that thereby the provisions contained in Sections 25-N and 25-O are not required to be complied with? The answer to the said question must be rendered in the negative. A settlement can be arrived at between the employer and workmen in case of an industrial dispute. An industrial dispute may arise as regard the validity of a retrenchment or a closure or otherwise. Such a settlement, however, as regard retrenchment or closure can be arrived at provided such retrenchment or closure has been effected in accordance with law. Requirements of issuance of a notice in terms of Sections 25-N and 25- O, as the case may, and/or a decision thereupon by the appropriate Government are clearly suggestive of the fact that thereby a public policy has been laid down. The State Government before granting or refusing such permission is not only required to comply with the principles of natural justice by giving an opportunity of hearing both to the employer and the workmen but also is required to assign reasons in support thereof and is also required to pass an order having regard to the several factors laid down therein. One of the factors besides others which is required to be taken into consideration by the appropriate Government before grant or refusal of such permission is the interest of the workmen. The aforementioned provisions being imperative in character would prevail over the right of the parties to arrive at a settlement. Such a settlement must conform to the statutory conditions laying down a public policy. A contract which may otherwise be valid, however, must satisfy the tests of public policy not only in terms of the aforementioned provisions but also in terms of Section 23 of the Indian Contract Act."
14. It is further contended that although learned Tribunal held the termination of the Workman to be illegal, a lump-sum award of Rs.50,000/- in lieu of reinstatement in service was not justified both due to adequacy of compensation as well as due to the fact that permanent post was available to absorb the 23 Workman as Messenger at the relevant time. In support of his case, he relied upon the decision in the case of Talwara Coop. Credit & Service Society Ltd. -v- Sushil Kumar, reported in (2008) 9 SCC 486, wherein the Hon'ble Supreme Court taking into consideration the case laws in the cases of General Manager, Haryana Roadways -v- Rudhan Singh, reported in (2005) 5 SCC 591, U.P.S.R.T.C. Ltd. -v- Sarada Prasad Misra and another, reported in (2006) 4 SCC 733 and Municipal Council, Sujanpur -v- Surinder Kumar, reported in (2006) 5 SCC 173, held as follows:
"14. When the question arises as to how and in what manner balance should be struck, it is necessary for the Industrial Courts also to consider as to whether the industry has been sick or not. If it is found that the industry is not in a position to bear the financial burden, an appropriate award, as a result whereof the equities between the parties can be adjusted, should be passed.
15. We have noticed hereinbefore that the respondent was employed for a short period and that too in two different spells, viz., from 1987 to 1990 and from 1995 to 1997. Having regard to the fact that the respondent has not worked for a long period and the appellant does not have any capacity to pay as it is a sick unit, interest of justice would be subserved if instead and place of an award of reinstatement with full back wages, a compensation for a sum of Rs. 2,00,000/- (Rupees two lakhs only) is directed to be paid. The said sum would be over and above the amount which the appellant has deposited in terms of the order of the High Court under Section 17-B of the Industrial Disputes Act."24
15. It is further submitted that although the wait list was valid till 31.03.1997, the Workman was prematurely disengaged on 15.02.1997. In that view of the matter, the Workman prayed for a direction to reinstate him in service with full back-wages.
16. We have heard learned counsel for the parties at length and perused the materials available on record.
17. In order to delve into the issues involved in both the writ petitions, some relevant undisputed facts are reiterated. The Workman on being selected in a selection process was initially engaged as a temporary Messenger on 30.07.1985 in Khodasingi Agriculture Development Branch of the Management-Bank. He continued as such till 20.01.1986 for a period of 179 days. Thereafter, a settlement was arrived at between the Management- Bank and Federation on 17.11.1987 for permanent absorption of temporary employees who had worked against leave/casual vacancies during 1985 to 1992. Subsequently, the settlement was modified and extended from time to time depending upon the situation and demand of Federation. In the said agreement, it was agreed to provide opportunity to the temporary employees for being considered for permanent absorption in the subordinate cadre against vacancies likely to arise during the period from 25 1987 to 1991 subject to fulfillment of certain criteria with regard to the age, qualification and minimum service rendered in the Bank. Accordingly, the temporary employees were divided into three categories, viz, 'A', 'B' and 'C'. Besides other conditions of the settlement, it was agreed that the selection of the persons shall be done through a committee and a panel was to be prepared for full time and part time appointment in messengerial and non-messengerial position. The said settlement was valid up to December, 1991. Subsequently, vide settlement dated 16.07.1988, the period of validity of the said settlement was extended till December, 1992. Thereafter, by virtue of the subsequent settlement dated 27.10.1988 with the Federation, the purview of earlier two settlements/agreements was enlarged to the extent that persons who were engaged to work on casual basis against leave/casual vacancies of Messengers, Farash, Cash Coolies, Water Boys and Sweeper etc. would also be given a chance for being considered for permanent absorption against vacancies likely to arise during 1988 to 1992. The validity period of the agreement was extended till 31.07.1998. On the basis of the aforesaid agreements, applications were invited from eligible temporary employees. Accordingly, the interview was held and 26 suitable candidates were empanelled for their permanent absorption, but due to several administrative bottlenecks, the norms for appointment of messengerial staff could not be finalized till 1991. Due to the same, the earlier agreement had to pass through certain modifications. Besides other conditions, it was agreed that the wait list of different categories would remain alive till the end of 31st March, 1997. In order to facilitate the permanent absorption of the temporary employees, several agreements were also signed on circle basis to give circle-wise appointment to the enlisted persons.
18. Taking into consideration the suitability and length of service, the Workman was placed at Sl. No.155 of Category-C employees to which the Workman had never raised any objection. Considering the vacancy position, appointments were being made from the said wait list. Thus, the Workman continued on daily wage basis at Matikhalo I.R.E Branch of the Management-Bank waiting for his turn to be engaged permanently during validity of the said wait list. It is the case of the Management that during incumbency of the said wait list, the Workman could not get a berth to be absorbed permanently, which was till 31.03.1997. In the interregnum, due to permanent absorption of an employee 27 from the wait list taking into consideration his position in the wait list, the Workman had to face termination on 15.02.1997 when he was finally disengaged from service as per the terms of the settlement. From the discussions made above, it appears that termination of the Workman was pursuant to the terms of the settlement. But, the fact remains that the Workman, in his statement of claim specifically averred that persons junior to him, namely, Krushna Chandra Panda, K. Upendra Rao and Sudhakar Patnaik were regularized ignoring his case. During pendency of the industrial dispute, the Workman had also filed an application to call for relevant records, which was directed to be considered at the time of hearing. But, the impugned award was passed without considering the same. Thus, the specific plea raised by the Workman with regard to violation of Section 25-G of the I.D. Act remained unredressed. The Workman was not in a position to produce records in respect of above-named employees. But, the Management could have produced the same to test the veracity of the plea taken by the Workman. It is also a vital issue, which ought to have been answered by the Tribunal.
19. Mr. Bose, learned counsel for the Workman relied upon the decision in the case of Oswal Agro Furane Ltd. & another 28 (supra) in which it has been held that a settlement can be arrived at between an Employer and Workman in case of an industrial dispute. An industrial dispute may arise with regard to the validity of retrenchment or a closure or otherwise. A settlement can be arrived at with regard to any industrial dispute and retrenchment or closure, etc. can also be effected in terms of such settlement, provided such retrenchment or closure has been effected in accordance with law. The Hon'ble Supreme Court categorically observed that even if a retrenchment or closure is given effect to pursuant to a settlement, but such retrenchment must be in accordance with law. In the instant case, the Workman assails his retrenchment basically on two grounds, viz, violation of Section 25-F as well as 25-G of the I.D.Act. Admittedly, the issue with regard to violation of Section 25-G of the I.D. Act is not considered by the Tribunal. The Tribunal ought to have considered the petition for calling for service records of above named workmen and examined the veracity of the plea taken by the Workman.
20. The next question that arises for consideration is whether the Workman could have been terminated on 15.02.1997 when the wait list was valid till 31.03.1997. The plea 29 of the Management-Bank is that although the wait list was valid till 31.03.1997, but in terms of the settlement when a person placed above the Workman was selected in Category-C employees for permanent absorption in the Bank, the Workman was given a retrenchment notice on 31.12.1996. Accordingly, his continuance on daily wage basis came to an end on 15.02.1997 in terms of the settlement although the wait list was valid till 31.03.1997. The Workman had no chance of being permanently absorbed by 31.03.1997. As such, no exception can be drawn for termination of the Workman with effect from 15.02.1997. Mr. Bose, learned counsel for the Workman, on the other hand, submitted that without prejudice to his claim for being permanently absorbed, the Workman was entitled to continue at least till 31.03.1997, i.e., till the wait list was valid. Thus, the termination of the Workman was premature and is not in accordance with law. Scrutinizing the contentions of learned counsel for the parties and the materials available on record, it appears that the wait list was valid till 31.03.1997 but the Workman was terminated on 15.02.1997. The plea of the Management to the effect that due to permanent absorption of an employee from the wait list of 30 Category-C employee, who was in a higher position than that of the Workman is not supported by any material.
21. True it is that the learned Tribunal has no jurisdiction to travel beyond the scope of reference. When learned Tribunal on discussion of the materials available on record came to the categorical conclusion that termination of the Workman with effect from 15.02.1997 was justified and the Management-Bank cannot be blamed for the same, it could not have travelled beyond the same to hold that the Workman was not given engagement beyond 179 days in his first spell of engagement to avoid regularization, which was the case of none of the parties. Thus, such a finding is unwarranted and is struck down. But, in view of the discussions made above, it cannot be said that the learned Tribunal was correct in holding that the termination of the Workman was justified.
22. The earlier writ petition filed by the Workman was for his regularization/permanent absorption, which was ultimately withdrawn by him. As discussed above, similar other writ petitions were also filed for permanent absorption by several other employees of the Management. The said batch of writ petitions was dismissed by the Court. The Hon'ble Supreme 31 Court on consideration of materials on record came to hold that in view of the settlement in question, the prayer for permanent absorption of the employees can only be considered in terms of the said settlement. But, the same in no way vitiates the terms of the reference in question, as it relates to the validity of termination of the Workman w.e.f. 15.02.1997.
22. In view of the discussions made above, this Court is of the considered opinion that the finding of learned Tribunal in the first part of the impugned award to the effect that the termination of the Workman cannot be said to be illegal and the Management cannot be blamed for termination of the Workman is not sustainable and is accordingly set aside. The matter, however, requires a fresh consideration by learned Tribunal. But, in the meantime 15 years have already elapsed and remitting the matter back to the Tribunal may further delay the matter. The Workman has also attained the age of superannuation. Accordingly, to put a quietus to the matter, this Court directs that the Workman shall be paid a sum of Rs. 3,00,000/- (Rupees three lakh only) by the Management in lieu of his reinstatement in service, which shall be paid to him within a period of six months hence.
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23. Both the writ petitions are disposed of accordingly. But, in the circumstances, there shall be no order as to cost.
The LCR be returned forthwith.
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K.R. MOHAPATRA MOHAMMAD RAFIQ
(JUDGE) (CHIEF JUSTICE)
Orissa High Court, Cuttack.
Dated the 20th October, 2020/bks