Allahabad High Court
The Manager State Bank Of Bikaner And ... vs The Presiding Officer Central Govt. ... on 12 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 914
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR In Chamber Case :- WRIT - C No. - 4682 of 2011 Petitioner :- The Manager State Bank Of Bikaner And Jaipur Respondent :- The Presiding Officer Central Govt. Industrial Tribunalandors Counsel for Petitioner :- Vipin Sinha,Satish Chaturvedi Counsel for Respondent :- S.C.,A.Khare,S.Khare AND Case :- Case :- WRIT - C No. - 37335 of 2011 Petitioner :- Dinesh Kumar Bansal And Others Respondent :- The Manager State Bank Of Bikaner And Jaipur And Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- Vipin Sinha,S.C.,Satish Chaturvedi Hon'ble Siddhartha Varma, J.
Writ Petition No.4682 of 2011 has been filed against the award of the Central Government Industrial Tribunal-cum-Labour Court. The respondent nos.2 and 3, who are petitioners in Writ Petition No.37335 of 2011 had raised an industrial dispute and a Reference was made by the relevant Government on 23/24 June 1999 which was to the following effect :-
"Whether the action of the management of State Bank of Bikaner & Jaipur in terminating the services of Shri Dinesh Kumar Bansal and Shri Ravindra Kumar and not giving them opportunity for re-employment is legal and justified? If not, to what relief the said workmen are entitled?"
Respondent no.2 had come up with a case that he was engaged with the petitioner-Bank on 21.11.1983 as a temporary Clerk-cum-Cashier and was thereafter disengaged from service on 8.2.1984. The respondent no.3 also had a similar case and he stated that he was engaged on 21.3.1983 as a temporary Clerk and was disengaged on 8.6.1983. The respondent nos.2 and 3 had come up with a case that they were entitled to be absorbed as regular employees. They had taken a case that when they were retrenched they were not the junior most temporary employees in the organization, meaning thereby their services were done away with in violation of the provisions of Section 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Central Act"); and it was stated after they were removed, fresh hands were recruited in violation of the provisions of section 25H of the Central Act. It was stated that these actions of the employer were in violation of the SASTRY Award and the bipartite agreement between the bank and Workers' Union. The petitioner-Bank had opposed the claim of the respondent nos.2 and 3 before the Tribunal.
However, the Tribunal, before which pleadings were filed and oral evidence were led, on 15.7.2010 passed an award by which the respondent nos. 2 and 3 were reinstated but without back-wages.
Sri Satish Chaturvedi, learned counsel for the petitioner assailed the award on the following amongst other grounds :-
(i) The Reference to the Tribunal did not mention either the date of the alleged termination or the posts on which the respondent nos.2 and 3 were engaged, making the Reference vague.
(ii) Even though there was no Reference with regard to the violation of Rules 77 and 78 of "The Industrial Disputes (Central) Rules, 1957" (hereinafter referred to as the "Central Rules") yet, the Tribunal had given findings with regard to the violation of the provisions of those Rules and had found that there was definite violation of the provisions of Rules 77 and 78 of the Central Rules. Learned counsel for the petitioner submitted that the Tribunal was a Court of Reference and it was bound by the Reference made to it. In this regard, learned counsel for the petitioner relied upon (2004) 10 SCC 460 : Mukand Ltd. vs. Mukand Staff & Officers' Association. He further submitted that if the Tribunal exceeded its jurisdiction then the award was bad on account of a jurisdictional error. In this regard, learned counsel for the petitioner relied upon (2006) 5 SCC 123 : State Bank of Bikaner & Jaipur vs. Om Prakash Sharma.
(iii) When the Reference to the Tribunal in effect was as to whether there was any violation of the provisions of section 25H of the Central Act and when no information was provided as to who were the employees junior to the respondents working in the establishment then the award could not be sustained. Learned counsel submitted that Ashok Kumar Jain and Anil Kumar who were appointed in 1983 and 1984 were appointed at the time the respondents were also appointed. So far as Shyam Singh and Mukesh Kumar were concerned, they were of a different category as they had been recruited through the Bank. Learned counsel therefore submitted that regularising persons who had already been working would not attract the provisions of section 25H of the Central Act. In this regard, learned counsel for the petitioner relied upon (2019) 2 SCC 743 : Management of the Barara Cooperative Marketing-cum-Processing Society Ltd. vs. Workman Pratap Singh. Learned counsel in order to give strength to his argument that a retrenched employee had no absolute right for re-employment relied upon 2009 (9) ADJ 141 : State Bank of Bikaner and Jaipur vs. Anurag Sharma. Learned counsel further submitted that since the Reference was only with regard to the alleged violation of the provisions of section 25H of the Central Act, the only issue which was required to be seen was as to whether any opportunity to the retrenched workman was given or not for re-employment when vacancies arose and others were given employment. In this regard, learned counsel submitted that the Circular dated 16.8.1990 which was made a part of the record of the Tribunal and was also a part of the record of the writ petition was an opportunity enough for the respondent-employees to have approached the Bank. He further submitted that there was earlier to 16.8.1990, another Circular issued on 23.4.1987 in various newspapers. The respondents had purposely not responded to the Circulars and, therefore, now they could not claim any right under the provisions of section 25H of the Central Act.
(iv) Learned counsel for the petitioner further submitted that the Tribunal erred in insisting that notice to the respondents ought to have been as per the provisions of Rules 77 and 78 of the Central Rules.
(v) When there was no pleading then oral evidence as was led by the respondents was not to be read. In this regard, learned counsel for the petitioner relied upon (1999) 4 SCC 403 : Prataprai N. Kothari vs. Jhon Braganza.
(vi) In the end, learned counsel for the petitioner submitted that the respondent nos.2 and 3 after being disengaged, raised the industrial dispute very late in the day. The Reference itself was made on 23/24 June 1999; the award came in the year 2010; the workmen were not in employment of the petitioner since the last 37 years; the respondent no.2, at the time of filing of the counter affidavit, was aged about 48 years and now was more than 57 years of age whereas respondent no.3, at the time of filing of the counter affidavit was aged about 46 years and now he was more than 55 years of age and, therefore, they be not granted any relief. Learned counsel also submitted that the respondents were not entitled for any back-wages as they had raised the industrial dispute very belatedly and, therefore, the connected writ petition being Writ Petition No.37335 of 2011 be dismissed.
Learned counsel for the respondent nos.2 and 3 in Writ Petition No.4682 of 2011 (and as a counsel for the petitioners in Writ Petition No.37335 of 2011) however, supported the award to the extent that it had directed for the reinstatement of the respondent nos.2 and 3 and submitted that when the issue with regard to the violation of the provisions of section 25H of the Central Act was being considered, then it became imperative that the findings with regard to the provisions of section 25G of the Central Act and Rules 77 and 78 of the Central Rules be given. In this regard, learned counsel for respondent nos.2 and 3 relied upon 1997 (76) FLR 393 : Oriental Bank of Commerce vs. Union of India & Ors. and 1987 (55) FLR 527 : Gujarat State Machine Tools Corporation Limited, Bhavnagar vs. Deepak J. Desai. Learned counsel further submitted that when there was violation of the provisions of Rules 77 and 78 of the Central Rules and when it was evident from the award that juniors were absorbed to the detriment of the petitioners then the award could not be interfered with so far as it reinstated the workmen-respondent nos.2 and 3. Learned counsel further submitted that the Industrial Disputes Act, 1947 was a welfare legislation and when an industrial dispute was raised by the respondents upon gaining knowledge of the fact that persons junior to them were being regularised then it was in the fitness of things that the delay of a few years was condoned by the Tribunal. However, learned counsel for respondent nos.2 and 3 submitted that the delay of almost 11 years which was committed by the Tribunal should not have been there. Learned counsel submitted that the High Court had protected the interest of the respondents when the orders dated 23.8.2011 and 13.7.2012 were passed. The orders dated 23.8.2011 and 13.7.2012 as were read out by the learned counsel are being reproduced here as under :-
Order dated 23.8.2011 passed in Writ-C No.4682 of 2011 "Counter affidavit and rejoinder affidavits have been exchanged. Heard counsel for the parties.
The petition is admitted for hearing.
The interim order dated 27.1.2011 is modified to the extent that petitioner shall reinstate the workmen in view of section 17-B of the Industrial Disputes Act, 1947 as the workman is said to have filed affidavit that they were not gainfully employed after alleged illegal termination from service and that the court below has recorded a categorical finding of fact that the workmen were not gainfully employed. The employer/petitioner will reinstate the workmen within a period of one month from today and pay them their salary month to month in accordance with law till further orders."
Order dated 13.7.2012 passed in Writ-C No.4682 of 2011 "(Order on Modification Application) Heard learned counsel for the parties.
This Court vide order dated 23.8.2011 had modified its interim order dated 27.1.2011 in the following terms:
"The interim order dated 27.1.2011 is modified to the extent that petitioner shall reinstate the workmen in view of section 17-B of the Industrial Disputes Act, 1947 as the workman is said to have filed affidavit that they were not gainfully employed after alleged illegal termination from service and that the court below has recorded a categorical finding of fact that the workmen were not gainfully employed. The employer/petitioner will reinstate the workmen within a period of one month from today and pay them their salary month to month in accordance with law till further orders."
Learned counsel for the petitioner advanced an argument that it is always open to the employer to take work from the employee or not to take work from the employee and paid him his wages/salary. Section 17-B of the Industrial Disputes Act, 1947 provides for salary last drawn by the workman in whose favour award is given. It is stated that the workmen concerned are being paid wages accordingly as directed by this Court vide order dated 27.1.2011 and a modification application by the workmen concerned has been filed as the employer were compelled by the reason of contempt application filed by the workmen concerned that they are entitled the current salary even without working.
Learned counsel for the respondents has submitted that in the meantime they will not press the contempt petition and further they may be granted time to file objection to the modification application. The petitioner has sought the modification application for not compelling to take the work from the workmen concerned.
As prayed, two weeks time is allowed to Shri Siddharth Khare, learned counsel for the respondents for filing objection to the application for modification of the order. Learned counsel for the applicant is also allowed two weeks' time to file reply to the objection, if any, filed by Shri Siddharth Khare.
List immediately after expiry of the aforesaid four weeks."
This would mean that the respondents had been taken back in service and must have also been granted their salaries. However, learned counsel for the respondent-workmen submitted that the Tribunal erred in not granting the back-wages and relied upon (1999) 6 SCC 82 : Ajaib Singh vs. The Sirhind Co-Operative Marketing-cum-Processing Service Society Limited & Ors.
Having heard learned counsel for the Bank and the workmen, I am of the view that the award requires no interference. Since sections 25G and 25H of the Central Act and Rules 77 and 78 of the Central Rules were referred to by the learned counsel, they are being reproduced here as under :-
"Section 25G. Procedure for retrenchment.--Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workman in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
Section 25H. Re-employment of retrenched workmen.--Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons.
Rule 77. Maintenance of seniority list of workmen.--The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a notice board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.
Rule 78. Re-employment of retrenched workmen.--(1) At least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered thereof, to the address given by him at the time of retrenchment or at any time thereafter:
Provided that where the number of such vacancies is less than the number of retrenched workmen, it shall be sufficient if intimation is given by the employer individually to the senior-most retrenched workmen in the list referred to in rule 77 the number of such senior-most workmen being double the number of such vacancies:
Provided further that where the vacancy is of a duration of less than one month there shall be no obligation on the employer to send intimation of such vacancy to individual retrenched workmen:
Provided also that if a retrenched workman, without sufficient cause being shown in writing to the employer, does not offer himself for re-employment on the date or dates specified in the intimation sent to him by the employer under this sub-rule, the employer may not intimate to him the vacancies that may be filled on any subsequent occasion.
(2) Immediately after complying with the provisions of sub-rule (1), the employer shall also inform the trade unions connected with the industrial establishment, of the number of vacancies to be filled and names of the retrenched workmen to whom intimation has been sent under that sub-rule:
Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under rule 77."
The submission of the learned counsel for the Bank that the Reference when was with regard to the opportunity as was to be granted under section 25H, then the Tribunal could not have given further findings with regard to the provisions of section 25G and Rules 77 and 78 of the Central Rules is absolutely misplaced. I am of the view that unless findings with regard to the provisions of Rules 77 and 78 of the Central Rules and with regard to the provisions of section 25G are given, the Tribunal could not have arrived at a proper conclusion as to whether the provisions of section 25H were violated. The Tribunal, in the fitness of things, found that no proper seniority list was maintained; no proper opportunity to the respondents, as was required to be given under the Rules, was provided before regularising persons junior to them and further the Tribunal correctly found that the delay on the part of the respondent-workmen was negligible. No fault can also be found with regard to the findings viz-a-viz. the application of the SASTRY Award and bipartite agreement in the case.
The workmen must have been taken back in service as per the interim orders of this Court and, therefore, I do not find it appropriate to grant any back-wages as since 2011 they must have been getting their regular salaries.
Under such circumstances, I find that no interference is warranted in both the writ petitions. The writ petitions are, therefore, dismissed. However, if in pursuance of the interim orders, the workmen have not been reinstated, then it would be deemed that they were reinstated on the date when the first interim order dated 23.8.2011 was passed and all wages which were payable to the workman viz-a-viz. the date of the interim order dated 23.8.2011 would be granted to them. It may be stated that all consequential benefits of the award whereby the workmen were required to be reinstated shall also be provided to the respondent-workmen.
Order Date :- 12.05.2020 GS (Siddhartha Varma, J.)