Orissa High Court
An Application Under Article 4 Of The ... vs Presiding Officer on 29 January, 2020
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.A. No. 208 of 2008
An application under Article 4 of the Orissa High Court Order,
1948 read with Clause 10 of the Letters Patent Act, 1992 read
with Chapter VIII Rule 2 of the Rules of the High Court of Orissa,
1948.
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Urmila Shah ......... Appellant
-Versus-
Presiding Officer,
Industrial Tribunal
and others ......... Respondents
RVWPET No. 57 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Satrughan Pani ......... Opposite party
RVWPET No. 58 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Arjun Charan Sahoo ......... Opposite party
2
RVWPET No. 59 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Luptanjali Samantray ......... Opposite party
RVWPET No. 60 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Saroj Kumar Sarangi ......... Opposite party
RVWPET No. 61 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Damodar Behera ......... Opposite party
RVWPET No. 62 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Arupananda Parida ......... Opposite party
3
RVWPET No. 63 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Abani Kumar Panigrahi ......... Opposite party
RVWPET No. 64 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Lalita Bag ......... Opposite party
RVWPET No. 65 Of 2010
The Secretary,
Sundargarh Central
Co-operative Bank Ltd. ......... Petitioner
-Versus-
Sailendra Kumar Rout ......... Opposite party
For Appellant: - Mr. J.R. Dash
(in the writ appeal)
For Petitioners: - Mr. Sukumar Ghose
(in all review petitions)
For Opp. Party: - Mr. K.K. Mohapatra
(in all review petitions)
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4
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE KUMARI SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 29.01.2020
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S. K. SAHOO, J. In the writ appeal vide W.A. No.208 of 2008, the
appellant Urmila Shah has challenged the impugned order dated
19.06.2008 passed by the learned Single Judge of this Court in
W.P.(C) No.298 of 2003 in dismissing the writ petition and
thereby confirming the award dated 23.10.2002 passed by the
learned Presiding Officer, Industrial Tribunal, Rourkela in I.D.
Case No.12 of 2001.
I.D. Case No.12 of 2001
2. In pursuant to the provision under section 10(1)(d)
read with section 12(4) of the Industrial Disputes Act, 1947
(hereafter 'I.D. Act'), the appropriate Government referred the
following dispute vide letter No.8096/L.E dated 07.06.2001 for a
decision:
"Whether the termination of services of the
workman Urmila Shah working as Accounts
Assistant at Mahila Branch, Basanti Colony,
Rourkela of the Bank by the Secretary,
Sundargarh Dist. Central Coop. Bank Ltd,
5
Sundargarh with effect from 28.07.2000 is legal
and/or justified? If not, to what relief the
workman Urmila Shah is entitled?"
On the basis of such reference, I.D. Case No.12 of
2001 was initiated before the learned Presiding Officer, Industrial
Tribunal, Rourkela. The Secretary and Branch Manager of
Sundargarh District Central Cooperative Bank (hereafter 'the
Bank') were the 1st parties and appellant Urmila Shah was the
2nd party in the said proceeding. It is the case of the appellant-
2nd party that she was selected as Account Assistant and joined
the Bank on 02.04.1997 and continued there as such till
27.07.2000 when her services from the Bank were terminated.
The Bank employed her in the post without regularizing her
service which continued till her retrenchment. The appellant used
to work sincerely and diligently and to the full satisfaction of the
authority. She discharged her duties which were assigned to her.
In spite of giving her full remuneration as per banking rules, she
was being paid Rs.80/- per day and without following the due
procedure under section 25-F of the I.D. Act, her services were
terminated. She prayed for reinstatement in the Bank, payment
of her back wages with compensation and all other consequential
service benefits.
6
It is the case of the 1st parties Bank that the services
of the appellant were not under regular establishment and she
was working as a casual worker on daily wage basis. She was
not selected as per the Staff Service Rules of the Bank rather she
was engaged by the Branch Manager of the Bank without
following due procedure prescribed for recruitment of regular
employees. It is the further case of the 1st party Bank that the
Branch Manager appointed the appellant in the Bank in a
concealed, clandestine and illegal manner for which there was a
special audit in the Bank and the amount paid to the appellant
was to be recovered from the concerned Branch Manager.
3. The learned Tribunal in I.D. Case No.12 of 2002
framed the following issues for determination:-
(i) Whether the 2nd party workman was in
continuous employment for more than one year
under the 1st party management?
(ii) Whether the termination of service of 2nd party
workman by the 1st party management w.e.f.
28.07.2000 is legal and/or justified?
(iii) If not, to what relief the 2nd party is entitled?
(iv) Whether the reference is maintainable?
7
4. While answering the issue no.(i), the learned Tribunal
in its award dated 23.10.2002 held that the appellant was
engaged in the services of the Bank on daily wage basis and
worked there continuously for more than two hundred and forty
days and the rate of her daily wage was enhanced from time to
time. While answering the issue no.(ii), the learned Tribunal held
that the appointment of the appellant was void ab-initio and
illegal in view of the fact that the authority was not competent
under Staff Service Rules to appoint her in the Bank. The then
Branch Manager made the illegal appointment for which she was
placed under orders of suspension and facing a departmental
proceeding as per charge sheet submitted against her. While
answering issue no.(iii), the learned Tribunal held that it would
be justified and equitable to award compensation at the rate of
wages for fifteen days on completion of every 240 days when the
appellant had worked in the Bank at the existing and prevalent
scale of Rs.80/- a day. While answering issue no.(iv), the
learned Tribunal held that the dispute is within the jurisdiction of
the Tribunal for adjudication and therefore, the reference is
maintainable.
5. The appellant challenged the award dated
23.10.2002 of the learned Tribunal before this Court in W.P.(C)
No.298 of 2003 which was disposed of as per order dated
8
19.06.2008 by the learned Single Judge wherein after narrating
the fact of the case, the finding of the learned Tribunal, the
contentions raised by the respective parties, it was held as
follows:-
"Considering the submission of the parties and
the principles of law laid down by the Apex Court
as referred to above and keeping in view the
findings of the learned Labour Court
(inadvertently mentioned in place of Industrial
Tribunal) as given in the impugned award and
the reasons assigned in support of the same, no
impropriety or illegality can be said to have been
committed by the learned Labour Court (again
inadvertently mentioned in place of Industrial
Tribunal) in passing the impugned award so as
to warrant any interference by this Court."
Accordingly, while dismissing the writ petition, the
learned Single Judge observed that it is open to the petitioner
(appellant) to file a representation before the Management for
her appointment, which may be considered in accordance with
law.
RVWPET No. 57 of 2010
6. RVWPET No. 57 of 2010 arises out of W.P.(C)
No.1139 of 2003 filed by the opposite party Satrughana Pani
challenging the order dated 14.11.2002 passed by the Presiding
9
Officer, Industrial Tribunal, Rourkela in Industrial Dispute Case
No.11 of 2001. In the said I.D. Case, the facts are similar to the
aforesaid I.D. Case No.12 of 2002. The following reference was
made by the appropriate Government in its letter no.8086 dated
07.06.2001:
"Whether the termination of services of the
workman Sri Satrughna Pani working as
Accounts Assistant at Fertiliser Branch, Fertiliser
Town, Rourkela-7 of the Bank by the Secretary,
Sundargarh District Central Cooperative Bank
Ltd., Sundargarh with effect from 28.07.2000 is
legal and/or justified? If not, to what relief the
workman Sri Pani is entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Satrughana Pani even though worked in the Bank
from 01.03.1997 to 27.07.2000 as Accounts Assistant on daily
wage basis but he had not undergone the procedure of
appointment and his appointment was void ab-initio and illegal in
view of the Staff Service Rules and accordingly, it was held that
Sri Pani would get compensation at the rate of wages for fifteen
days on completion of every two hundred forty days at the
existing and prevalent scale of Rs.80/- a day.
10
RVWPET No. 58 of 2010
7. RVWPET No. 58 of 2010 arises out of W.P.(C)
No.1194 of 2003 filed by the opposite party Arjuna Chandra
Sahoo challenging the order dated 14.11.2002 passed by the
Presiding Officer, Industrial Tribunal, Rourkela in Industrial
Dispute Case No.23 of 2001. In the said I.D. Case, the facts are
similar to the aforesaid I.D. Case No.12 of 2002. The following
reference was made by the appropriate Government in its letter
no.8864 dated 22.06.2001:
"Whether the termination of services of the
workman Sri Arjun Charan Sahoo working as
peon at Fertiliser Branch, Rourkela of the Bank
by the Secretary, Sundargarh District Central
Cooperative Bank Ltd., Sundargarh w.e.f.
28.07.2000 is legal and/or justified? If not, to
what relief the workman Sri Sahoo is entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Arjun Charan Sahoo even though worked in the
Bank from 01.10.1995 to 27.07.2000 as peon on daily wage
basis but he had not undergone the procedure of appointment
and his appointment was void ab-initio and illegal in view of the
Staff Service Rules and accordingly, it was held that Sri Sahoo
would get compensation at the rate of wages for fifteen days on
11
completion of every two hundred forty days at the existing and
prevalent scale of Rs.80/- a day.
RVWPET No. 59 of 2010
8. RVWPET No. 59 of 2010 arises out of W.P.(C)
No.1406 of 2003 filed by the opposite party Luptanjali
Samantaray challenging the order dated 23.10.2002 passed by
the Presiding Officer, Industrial Tribunal, Rourkela in Industrial
Dispute Case No.20 of 2001. In the said I.D. Case, the facts are
similar to the aforesaid I.D. Case No.12 of 2002. The following
reference was made by the appropriate Government in its letter
no.8383/LE dated 13.06.2001:
"Whether the termination of services of the
workman Luptanjali Samantaray working as
Accounts Assistant at Mahila Branch, Basanti
Colony, Rourkela of the Bank by the Secretary,
Sundargarh District Central Cooperative Bank
Ltd., Sundargarh w.e.f. 28.07.2000 is legal
and/or justified? If not, to what relief the
workman Smt. Samantaray is entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Luptanjali Samantaray even though worked in the
Bank from 07.03.1997 to 27.07.2000 as Accounts Assistant on
daily wage basis but she had not undergone the procedure of
12
appointment and her appointment was void ab-initio and illegal
in view of the Staff Service Rules and accordingly, it was held
that Smt. Samantaray would get compensation at the rate of
wages for fifteen days on completion of every two hundred forty
days at the existing and prevalent scale of Rs.80/- a day.
RVWPET No. 60 of 2010
9. RVWPET No. 60 of 2010 arises out of W.P.(C)
No.6952 of 2003 filed by the opposite party Saroj Kumar Sarangi
challenging the order dated 13.03.2003 passed by the Presiding
Officer, Industrial Tribunal, Rourkela in Industrial Dispute Case
No.10 of 2001. In the said I.D. Case, the facts are similar to the
aforesaid I.D. Case No.12 of 2002. The following reference was
made by the appropriate Government in its memo no.8009(6)
dated 06.06.2001:
"Whether the termination of services of Sri Saroj
Kumar Sarangi working as Accounts Assistant at
Rourkela Branch of the Bank by the Secretary,
Sundargarh District Central Cooperative Bank
Ltd., Sundargarh w.e.f. 28.07.2000 is legal
and/or justified? If not, to what relief the
workman Sri Sarangi is entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Saroj Kumar Sarangi even though worked in the
13
Bank from 02.02.1997 to 28.07.2000 as Accounts Assistant on
daily wage basis but he had not undergone the procedure of
appointment and his appointment was void ab-initio and illegal in
view of the Staff Service Rules and accordingly, it was held that
Sri Sarangi would get compensation at the rate of wages for
fifteen days on completion of every two hundred forty days at
the existing and prevalent scale of Rs.80/- a day.
RVWPET No. 61 of 2010
10. RVWPET No. 61 of 2010 arises out of W.P.(C)
No.6953 of 2003 filed by the opposite party Damodar Behera
challenging the order dated 13.03.2003 passed by the Presiding
Officer, Industrial Tribunal, Rourkela in Industrial Dispute Case
No.15 of 2001. In the said I.D. Case, the facts are similar to the
aforesaid I.D. Case No.12 of 2002. The following reference was
made by the appropriate Government in its memo no.8277(6)
dated 18.06.2001:
"Whether the termination of services of Sri
Damodar Behera working as Accounts Assistant
at Rourkela Branch of the Bank by the
Secretary, Sundargarh District Central
Cooperative Bank Ltd., Sundargarh w.e.f.
28.07.2000 is legal and/or justified? If not, to
what relief the workman Sri Behera is entitled?"
14
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Damodar Behera even though worked in the Bank
from 02.02.1997 to 27.07.2000 as Accounts Assistant on daily
wage basis but he had not undergone the procedure of
appointment and his appointment was void ab-initio and illegal in
view of the Staff Service Rules and accordingly, it was held that
Sri Behera would get compensation at the rate of wages for
fifteen days on completion of every two hundred forty days at
the existing and prevalent scale of Rs.80/- a day.
RVWPET No. 62 of 2010
11. RVWPET No. 62 of 2010 arises out of W.P.(C)
No.6954 of 2003 filed by the opposite party Arupananda Parida
challenging the order dated 13.03.2003 passed by the Presiding
Officer, Industrial Tribunal, Rourkela in Industrial Dispute Case
No.14 of 2001. In the said I.D. Case, the facts are similar to the
aforesaid I.D. Case No.12 of 2002. The following reference was
made by the appropriate Government in its memo no.8292(6)
dated 12.06.2001:
"Whether the termination of services of
workman Sri Arupananda Parida working as
Accounts Assistant at Rourkela Branch of the
Bank by the Secretary, Sundargarh District
Central Cooperative Bank Ltd., Sundargarh
15
w.e.f. 28.07.2000 is legal and/or justified? If
not, to what relief the workman Sri Parida is
entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Arupananda Parida even though worked in the
Bank from 02.02.1997 to 28.07.2000 as Accounts Assistant on
daily wage basis but he had not undergone the procedure of
appointment and his appointment was void ab-initio and illegal in
view of the Staff Service Rules and accordingly, it was held that
Sri Parida would get compensation at the rate of wages for
fifteen days on completion of every two hundred forty days at
the existing and prevalent scale of Rs.80/- a day.
RVWPET No. 63 of 2010
12. RVWPET No. 63 of 2010 arises out of W.P.(C)
No.7009 of 2003 filed by the opposite party Abani Kumar
Panigrahi challenging the order dated 13.03.2003 passed by the
Presiding Officer, Industrial Tribunal, Rourkela in Industrial
Dispute Case No.16 of 2001. In the said I.D. Case, the facts are
similar to the aforesaid I.D. Case No.12 of 2002. The following
reference was made by the appropriate Government in its memo
no.8282(6) dated 12.06.2001:
16
"Whether the termination of services of the
workman Sri Abani Kumar Panigrahi working as
Accounts Assistant at Rourkela Branch of the
Bank by the Secretary, Sundargarh District
Central Cooperative Bank Ltd., Sundargarh
w.e.f. 28.07.2000 is legal and/or justified? If
not, to what relief the workman Sri Panigrahi is
entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Abani Kumar Panigrahi even though worked in the
Bank from 01.02.1994 to 28.07.2000 as Accounts Assistant on
daily wage basis but he had not undergone the procedure of
appointment and his appointment was void ab-initio and illegal in
view of the Staff Service Rules and accordingly, it was held that
Sri Panigrahi would get compensation at the rate of wages for
fifteen days on completion of every two hundred forty days at
the existing and prevalent scale of Rs.80/- a day.
RVWPET No. 64 of 2010
13. RVWPET No. 64 of 2010 arises out of W.P.(C)
No.7010 of 2003 filed by the opposite party Lalita Bag
challenging the order dated 13.03.2003 passed by the Presiding
Officer, Industrial Tribunal, Rourkela in Industrial Dispute Case
No.4 of 2001. In the said I.D. Case, the facts are similar to the
17
aforesaid I.D. Case No.12 of 2002. The following reference was
made by the appropriate Government in its memo no.9788/LE
dated 06.06.2001:
"Whether the termination of services of the
workman Lalita Bag, working as peon at Mahila
Branch, Basanti Colony, Rourkela-2 of the Bank
by the Secretary, Sundargarh District Central
Cooperative Bank Ltd., Sundargarh w.e.f.
28.07.2000 is legal and/or justified? If not, to
what relief the workman Lalita Bag is entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Lalita Bag even though worked in the Bank from
01.02.1997 to 28.07.2000 as peon on daily wage basis but she
had not undergone the procedure of appointment and her
appointment was void ab-initio and illegal in view of the Staff
Service Rules and accordingly, it was held that Lalita Bag would
get compensation at the rate of wages for fifteen days on
completion of every two hundred forty days at the existing and
prevalent scale of Rs.80/- a day.
RVWPET No. 65 of 2010
14. RVWPET No. 65 of 2010 arises out of W.P.(C)
No.13041 of 2003 filed by the opposite party Sailendra Kumar
Rout challenging the order dated 29.09.2003 passed by the
18
Presiding Officer, Industrial Tribunal, Rourkela in Industrial
Dispute Case No.17 of 2001. In the said I.D. Case, the facts are
similar to the aforesaid I.D. Case No.12 of 2002. The following
reference was made by the appropriate Government in its memo
no.8287(6)/LE dated 12.06.2001:
"Whether the termination of services of the
workman Sri Sailendra Kumar Rout working as
Accounts Assistant at Rourkela Branch of the
Bank by the Secretary, Sundargarh District
Central Cooperative Bank Ltd., Sundargarh
w.e.f. 28.07.2000 is legal and/or justified? If
not, to what relief the workman Sri Rout is
entitled?"
Similar issues were framed like the aforesaid I.D.
Case No.12 of 2002 and similar observations were made that the
opposite party Sailendra Kumar Rout even though worked in the
Bank from 01.03.1993 to 27.07.2000 as Accounts Assistant on
daily wage basis but he had not undergone the procedure of
appointment and his appointment was void ab-initio and illegal in
view of the Staff Service Rules and accordingly, it was held that
Sri Rout would get compensation at the rate of wages for fifteen
days on completion of every two hundred forty days at the
existing and prevalent scale of Rs.80/- a day.
19
15. In W.P.(C) No.1194 of 2003 filed by Arjuna Chandra
Sahoo (opposite party in RVWPET No. 58 Of 2010), this Court
vide judgment and order dated 10.03.2010 held that the moot
question is that even accepting that the engagement of Sri
Sahoo was not in accordance with the Central Co-operative
Banks Staff Service Rules, 1984 (hereafter '1984 Rules') but
since it was found that he was a workman who had rendered
continuous service of two hundred forty days in one calendar
year, whether there was necessity for compliance of section 25-F
of the I.D. Act. Considering Rule 58 of the 1984 Rules, it was
held that the said rule would go to show that none of the rules
prescribed thereunder shall operate in derogation of any law
applicable and Sri Sahoo having been found to be a workman by
the Tribunal, who had put in more than two hundred forty days
work in one calendar year, cannot be deprived of his rights under
the I.D. Act. Applying the ratio laid down by the Hon'ble
Supreme Court in the case of State Bank of India -Vrs.- N.
Sundara Money reported in A.I.R. 1976 S.C. 1111, it was
held that the conclusion arrived at by the Tribunal is fallacious
and the provisions under section 25-F of the I.D. Act have been
utterly violated by the employer entitling the workman Sri Sahoo
to an order of reinstatement as the retrenchment was found to
be illegal. Considering the question of back wages, it was held by
20
this Court that since Sri Sahoo was retrenched w.e.f. 28.07.2000
and nine years had already passed, he was not entitled to get
full back wages but for a compensation of Rs.50,000/- (rupees
fifty thousand). Accordingly, the award passed by the learned
Tribunal was set aside and direction was given to the Bank to
reinstate Sri Sahoo in service and to pay a compensation of
Rs.50,000/- (rupees fifty thousand), in lieu of back wages.
In other writ petitions i.e. W.P.(C) No.1139 of 2003,
W.P.(C) No.1406 of 2003, W.P.(C) No.6952 of 2003, W.P.(C)
No.6953 of 2003, W.P.(C) No.6954 of 2003, W.P.(C) No.7009 of
2003, W.P.(C) No.7010 of 2003 and W.P.(C) No.13041 of 2003,
it was held as per the orders passed on the same day, i.e. on
10.03.2010 in each case that since the facts of the case are
similar to the facts involved in W.P.(C) No.1194 of 2003 and the
findings arrived at in the impugned award are also similar to the
award impugned in the said writ petition, which was allowed as
per judgment passed, no different view could be taken and
accordingly, in each case the respective award was set aside and
it was directed that the petitioner in the respective writ petitions
be reinstated in service and a sum of Rs.50,000/- (rupees fifty
thousand) shall be paid to him as compensation in lieu of back
wages.
21
16. Review Petitions Nos.58, 57, 59, 60, 61, 62, 63, 64
and 65 of 2010 were filed by the Secretary, Sundargarh Central
Cooperative Bank Ltd. for review of the judgment and order
dated 10.03.2010 of this Court passed in W.P.(C) No.1194 of
2003 as well as the orders passed on the same day i.e. on
10.03.2010 in W.P.(C) Nos.1139, 1406, 6952, 6953, 6954,
7009, 7010 and 13041 of 2003 respectively which were disposed
of in accordance with the judgment passed in W.P.(C) No.1194
of 2003.
The learned Single Judge of this Court heard all the
review petitions analogously and since on the similar set of facts,
another learned Single Judge had disposed of W.P.(C) No.298 of
2003 by dismissing the writ petition filed by the workman and
confirming the award passed by the learned Industrial Tribunal
and thereby had taken a different view; differing from the
opinion expressed by the other learned Single Judge while
disposing of W.P.(C) No.298 of 2003, as per order dated
12.07.2013, it was directed to place all the matters before the
Hon'ble the Chief Justice for passing appropriate order for
placing the matters before an appropriate Division Bench under
the proviso to Rule 1 of Chapter-III of the Rules of the High
Court of Orissa, 1948 to resolve the issues.
22
Submissions:-
17. Mr. J.R. Dash, the learned counsel for the appellant
Urmila Shah in W.A. No. 208 of 2008 while challenging the
impugned order dated 19.06.2008 passed by the learned Single
Judge in W.P.(C) No.298 of 2003 contended that the learned
Tribunal erroneously held that the provision under section 25-F
of the I.D. Act is applicable only to regular employment whereas
the definition of 'workman' as per the said Act does not prescribe
any such kind of distinction in any manner. It was further
submitted that while answering to issue no.(iv), the learned
Tribunal held that the appellant was a workman under the I.D.
Act and therefore, the finding that the provision under section
25-F of the I.D. Act is not applicable particularly when the
appellant was continuing in service since 02.04.1997 till
27.07.2000 is erroneous both in fact and law. It is further
contended that the learned Tribunal should have confined its
adjudication to the points referred and issues framed and should
not have travelled beyond the scope of reference by interpreting
the mode of appointment of the appellant in absence of such
issues and that to without affording opportunity to the appellant
in that regard. It is contended that the learned Tribunal had
made out a third case by exceeding the scope of reference and
its jurisdiction which is arbitrary and without jurisdiction and
23
therefore, liable to be set aside. It is further contended that the
finding of the learned Tribunal that the appointment of the
appellant was made in a concealed, clandestine and illegal
manner is not acceptable inasmuch as the wages paid to the
appellant was intimated to the higher authorities by the Branch
Manager every month and expenditure was duly passed by the
Management committee meetings and annual general body
meetings of the Bank. It is further contended that when no issue
was framed as to whether the appointment of the appellant was
void ab-initio, no finding in that respect by the learned Tribunal
is sustainable. It is contended that the appellant was simply a
workman employed in the Bank for which it was not necessary to
issue an appointment order and since admittedly the
management has not followed/complied the provisions under the
I.D. Act while terminating the services of the appellant, the same
should be set aside. While concluding his argument, it is
contended that the learned Single Judge has not deliberated
upon the contentions raised by the learned counsel for the
appellant and after noting down the contentions raised by the
respective counsel, simply held that there is no impropriety or
illegality committed by the learned Tribunal while passing the
award, without assigning any reason as to why the submission
made on behalf of the appellant's counsel are not acceptable.
24
18. Mr. Sukumar Ghose, learned counsel appearing for
the Bank on the other hand, supported the order dated
19.06.2008 of the learned Single Judge in W.P.(C) No.298 of
2003 in respect of appellant Urmila Shah (appellant in W.A. No.
208 of 2008) and opposed the order dated 10.03.2010 passed in
W.P.(C) No.1194 of 2003 filed by Arjuna Chandra Sahoo
(opposite party in RVWPET No. 58 Of 2010) and the other
connected writ petitions and contended that any appointment
made in violation of the recruitment rules would be violative of
Articles 14 and 16 of the Constitution of India rendering the
same as nullity and since the initial appointment of each of the
persons working on daily wage basis was illegal and contrary to
the procedure prescribed for recruitment of employee and there
was no master and servant relationship existing between the
concerned parties, they cannot claim any benefit under law. It is
further contended that the view taken by the learned Single
Judge in W.P.(C) No.298 of 2003 is a reasonable one and it is
quite justified. It was argued that since a co-ordinate Bench had
already disposed of the identical matter in W.P.(C) No.298 of
2003 in the case of appellant Urmila Shah, the same should have
been considered while disposing of the batch of writ petitions
filed by other workmen in the identical facts. It was further
argued that in the peculiar scenario, the retrenched workmen
25
can neither claim reinstatement nor regularization or any benefit
arising out of the same and therefore, the direction for
reinstatement in service and for payment of compensation of
Rs.50,000/- (rupees fifty thousand) was not proper and justified
and the same should be set aside. He relied upon the decisions
of the Hon'ble Supreme Court in the cases of Secretary, State
of Karnataka -Vrs.- Umadevi reported in (2006) 4
Supreme Court Cases 1, U.P. Power Corporation Ltd. -Vrs.-
Bijli Mazdoor Sangh reported in JT 2007 (5) SC 611 and
Nagendra Chandra -Vrs.- State of Jharkhand reported in
(2008) 1 Supreme Court Cases 798.
19. Mr. K.K. Mohapatra, learned counsel appearing for
the opposite parties in the review petitions, on the other hand,
placed reliance on two decisions of this Court in the case of
State of Orissa -Vrs.- Hari Behera reported in 1999(II)
Orissa Law Reviews 236 and Muralidhar Sahu -Vrs.- State
of Orissa reported in 2003(I) Orissa Law Reviews 178 and
argued that the decision rendered in W.P.(C) No.298 of 2003
cannot be treated as precedent inasmuch as the learned Single
Judge has not taken into consideration relevant provision like
Rule 58 of 1984 Rules which saves the rights and privileges
under any other law and there is no discussion whether section
25-F of the I.D. Act has got any application or not and no
26
reasons have been assigned therein for confirming the award of
the Tribunal. The learned counsel supported the view taken by
the learned Single Judge in W.P.(C) No.1194 of 2003 and
contended that it is a well-reasoned judgment and argued that
all the review petitions should be dismissed. He placed reliance
in the cases of Official Liquidator -Vrs.- Dayanand reported
in JT 2008 (11) Supreme Court 467, Vikramaditya Pandey
-Vrs.- Industrial Tribunal reported in A.I.R. 2001 S.C. 672,
Durgapur Casual Workers Union -Vrs.- Food Corporation
of India reported in (2015) 5 Supreme Court Cases 786,
Maharashtra State Road Transport Corporation -Vrs.-
Casteribe Rajya Parivahan Karmchari Sanghatana
reported in (2009) 8 Supreme Court Cases 556, General
Secretary, North Orissa Workers Union -Vrs.- The
Superintendent, Prospecting Division reported in 2019(I)
Orissa Law Reviews 485, Hindustan Tin Works Pvt. Ltd.
-Vrs.- Employees reported in (1979) 2 Supreme Court
Cases 80 , Surendra Kumar Verma -Vrs.- The Central
Government Industrial Tribunal reported in A.I.R. 1981
Supreme Court 422 and Deepali Gundu Surwase -Vrs.-
Kranti Junior Adhyapak Mahavidyalaya reported in 2013
AIR SCW 5330.
27
Analysis of the submissions
20. The crucial point for consideration is whether on the
self-same set of facts, a complete different view was permissible
to be taken by the learned Single Judge of this Court in W.P.(C)
No.1194 of 2003 vide order dated 10.03.2010 ignoring the
earlier view taken by another learned Single Judge in W.P.(C)
No.298 of 2003 vide order dated 19.06.2008.
Coming to the order dated 19.06.2008 passed in
W.P.(C) No.298 of 2003, it appears that the learned Single Judge
after narrating the facts of the case, the findings of the learned
Tribunal, the contentions raised on behalf of the respective
parties, abruptly came to the conclusion that there is no
impropriety or illegality in the order of the learned Labour Court
(inadvertently mentioned in place of Industrial Tribunal) in
passing the impugned award so as to warrant any interference
and while dismissing the writ petition, it was observed that it is
open to the petitioner (appellant in W.A. No.208 of 2008) to file
a representation before the Management for her appointment,
which may be considered in accordance with law. In other words,
no reasons have been assigned as to why the contentions raised
by the counsel for the petitioner have no merit and the same is
not acceptable and why the view taken by the Tribunal is
acceptable. It is very easy to dispose of a case for the sake of
28
disposal mentioning therein that there is no illegality or infirmity
in the impugned order/judgment but when a party raises some
vital points challenging the impugned order/judgment, it is the
duty of a Judge to discuss such points and assign reasons for its
acceptance or otherwise.
In the case of Union of India -Vrs.- Jai Prakash
Singh reported in A.I.R. 2007 S.C. 1363, the Hon'ble
Supreme Court held that reasons introduce clarity in an order.
Reasons are live links between the minds of the decision taker to
the controversy in question and the decision or conclusion
arrived at. Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals the
'inscrutable face of the sphinx', it can, by its silence, render it
virtually impossible for the Courts to perform their appellate
function or exercise the power of judicial review in adjudging the
validity of the decision. Right to reason is an indispensable part
of a sound judicial system, reasons at least sufficient to indicate
an application of mind to the matter before Court. Another
rationale is that the affected party can know why the decision
has gone against him. One of the salutary requirements of
natural justice is spelling out reasons for the order made, in
other words, a speaking out. The 'inscrutable face of a sphinx' is
ordinarily incongruous with a judicial or quasi-judicial
29
performance. The Hon'ble Court further held that the High Court
ought to have set forth its reasons, howsoever brief, in its order
indicative of an application of its mind, all the more when its
order is amenable to further avenue of challenge. The absence of
reasons has rendered the High Court's judgment not sustainable.
In the case of Hindustan Times Ltd. -Vrs.- Union
of India reported in (1998) 2 Supreme Court Cases 242,
the need to give reasons has been held to arise out of the need
to minimize chances of arbitrariness and introduce clarity. In the
case of Arun -Vrs.- Addl. Inspector General of Police
reported in (1986) 3 Supreme Court Cases 696, the
recording of reasons in support of the order passed by the High
Court has been held to inspire public confidence in administration
of justice and help the Apex Court to dispose of appeals filed
against such orders. In the case of Secretary and Curator
-Vrs.- Howrah Ganatantrik Nagrik Samity reported in
(2010) 3 Supreme Court Cases 732, reasons were held to be
the heartbeat of every conclusion, apart from being an essential
feature of the principles of natural justice, that ensure
transparency and fairness in the decision making process. In the
case of Ram Phal -Vrs.- State of Haryana reported in
(2009) 3 Supreme Court Cases 258, giving of satisfactory
reasons was held to be a requirement arising out of an ordinary
30
man's sense of justice and a healthy discipline for all those who
exercise power over others. In the case of Director,
Horticulture Punjab -Vrs.- Jagjivan Parshad reported in
(2008) 5 Supreme Court Cases 539, the recording of reasons
was held to be indicative of application of mind specially when
the order is amenable to further avenues of challenge. In the
case of Maya Devi -Vrs.- Raj Kumari Batra reported in
(2010) 9 Supreme Court Cases 486, it is held that recording
of reasons in cases where the order is subject to further appeal
is very important from yet another angle. An appellate Court or
the authority ought to have the advantage of examining the
reasons that prevailed with the Court or the authority making
the order. Conversely, absence of reasons in an appealable order
deprives the appellate Court or the authority of that advantage
and casts an onerous responsibility upon it to examine and
determine the question on its own. An appellate Court or
authority may in a given case decline to undertake any such
exercise and remit the matter back to the lower Court or
authority for a fresh and reasoned order. That, however, is not
an inflexible rule, for an appellate Court may notwithstanding the
absence of reasons in support of the order under appeal before it
examine the matter on merits and finally decide the same at the
appellate stage. Whether or not the appellate Court should remit
31
the matter is discretionary with the appellate Court and would
largely depend upon the nature of the dispute, the nature and
the extent of evidence that may have to be appreciated, the
complexity of the issues that arise for determination and whether
remand is going to result in avoidable prolongation of the
litigation between the parties. Remands are usually avoided if
the appellate Court is of the view that it will prolong the
litigation.
As rightly contended by the learned counsel for the
appellant in the writ appeal and learned counsel for the opposite
parties in the review petitions that the learned Single Judge in its
order dated 19.06.2008 passed in W.P.(C) No.298 of 2003 has
not taken into consideration relevant provision like Rule 58 of
1984 Rules as well as applicability of section 25-F of the I.D. Act
to the persons who were engaged in the services of the Bank.
Rule 58 of 1984 Rules deals with rights and privileges under any
other law. It prescribes that nothing contained in the Staff
Service Rules shall operate in derogation of any law, applicable
or to the prejudice for any right under a registered agreement,
settlement, or award for the time being in force or in future or
contract of service, if any, as per general law applicable to the
members of the staff. Therefore, none of the rules prescribed
under the 1984 Rules shall operate in derogation of any law
32
applicable. Not in derogation of another law or laws means that
the legislature intends that such an enactment shall co-exist
along with the other Acts or in other words, it is clearly not the
intention of the legislature, in such a case, to annul or detract
from the provisions of other laws.
In the case of State of Orissa -Vrs.- Hari Behera
reported in 1999 (II) Orissa Law Reviews 236, this Court
held that if earlier decision has not taken note of some of the
relevant provision of law, the decision being per incuriam, the
same is not binding and the views expressed therein cannot be
followed. In the case of Muralidhar Sahu -Vrs.- State of
Orissa reported in 2003(I) Orissa Law Reviews 178, a
Divisional Bench of this Court held that a decision which is not
express and is not founded on reason has got no precedential
value and has got no binding effect.
Salmond on Jurisprudence (12th edition) observed as
follows:
"A precedent is not destroyed merely because it
was badly argued, inadequately considered, and
fallaciously reasoned. Thus a rather arbitrary
line has to be drawn between total absence of
argument on a particular point, which vitiates
the precedent, and inadequate argument, which
33
is a ground for impugning the precedent only if
it is absolutely binding and indistinguishable...
The Hon'ble Supreme Court in the case of Official
Liquidator (supra) has held that predictability and certainty is
an important hallmark of judicial jurisprudence and increase in
the frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch as the Courts
at the grassroot will not be able to decide as to which of the
judgment lay down is the correct law and which one should be
followed. Discipline is sine qua non for effective and efficient
functioning of the judicial system.
In view of such settled position of law, when in the
order dated 19.06.2008 passed in W.P.(C) No.298 of 2003, there
is total absence of discussion on Rule 58 of 1984 Rules as well as
applicability of section 25-F of the I.D. Act and no law has been
laid down therein and it is also not a reasoned order, in our
humble view, such an order cannot have any precedent value
and it is to be treated as having been rendered 'per incuriam'
which literally means 'carelessness' and in practice, it means 'per
ignoratium'.
Moreover, none of the parties has brought to the
notice of the Court during the argument of W.P.(C) No.1194 of
2003 that identical matter in W.P.(C) No.298 of 2003 has been
34
disposed of vide order dated 19.06.2008 by another learned
Single Judge. Therefore, when such an issue was raised for the
first time during hearing of the review petitions, the learned
Single Judge rightly directed to place all the matters before the
Hon'ble the Chief Justice for passing appropriate order for
placing the matters before an appropriate Division Bench.
21. It is not in dispute that the appellant in the writ
appeal and the opposite parties in the review petitions were
engaged in the services of the Bank on daily wage basis and
worked under the management of the Bank continuously for
more than two hundred forty days in twelve calendar months
and they were retrenched from service with effect from
28.07.2000. They were paid annual bonus and arrears of revised
wages. It is not the case of the Bank that there were no
vacancies in the Bank at the relevant point of time in the posts in
which they were working. Therefore, we are of the view that the
learned Tribunal rightly came to the conclusion that appellant in
the writ appeal and the opposite parties in the review petitions
were engaged in the services of the Bank on daily wage basis
and worked there continuously for more than two hundred forty
days in a calendar year and their daily wages were enhanced
from time to time.
35
Rule 4 of the 1984 Rules classifies the employees of
the Bank as permanent, temporary, probationer and officiating
and Rule 5 prescribes categories of posts in the Bank and Rule 6
prescribes the appointing authority for different posts. It is not in
dispute that there was an order of ban imposed by the
Government of Odisha for appointment to any kind of posts of
the Bank. The Branch Manager was not the appointing authority
for any of the posts of the Bank. Therefore, it can be said that
the engagement of the appellant in the writ appeal and the
opposite parties in the review petitions were not in accordance
with the 1984 Rules.
The learned Single Judge in W.P.(C) No.1194 of 2003
discussed the question as to whether there was necessity for
compliance of section 25-F of the Industrial Disputes Act once it
is found that the petitioner was a workman who had rendered
continuous service for two hundred forty days in one calendar
year before termination of his services, even if his engagement
was not in accordance with 1984 Rules. The learned Single Judge
took into account the ratio laid down by the Hon'ble Supreme
Court in the case of Vikramaditya Pandey (supra) wherein it is
held as follows:-
"6.....The only issue before the High Court was
whether the appellant was entitled to
36
reinstatement in service with back wages, once
the termination of his services had been held to
be illegal and more so when the same was not
challenged. Ordinarily, once the termination of
service of an employee is held to be wrongful or
illegal, the normal relief of reinstatement with
full back wages shall be available to an
employee; it is open to the employer to
specifically plead and establish that there were
special circumstances which warranted either
non-reinstatement or non-payment of back
wages. In this case we do not find any such
pleading of special circumstances either before
the Tribunal or before the High Court...
xxx xxx xxx xxx
By plain reading of the said Regulation, it
is clear that in case of inconsistency between the
Regulations and the provisions of the Industrial
Disputes Act, 1947, the State Act, the Workmen
Compensation Act, 1923 and any other labour
laws for the time being in force, if applicable to
any co-operative society or class of co-operative
societies, to that extent Regulations shall be
deemed to be inoperative. In other words, the
inconsistent provisions contained in the
Regulations shall be inoperative, not the
provisions of the other statutes mentioned in the
Regulation 103. The Tribunal in this regard
correctly understood the Regulation but wrongly
refused the relief on the ground that no
37
reinstatement can be ordered on a regular
employment in view of the provisions contained
in the said Regulation. But the High Court read
the Regulation otherwise and plainly
misunderstood it in saying that if there is any
inconsistency between the Regulations and the
Industrial Disputes Act, 1947 and other labour
laws for the time being in force, the Regulations
will prevail and the Industrial Disputes Act, 1947
and other labour laws shall be deemed to be
inoperative. This misreading and wrong
approach of the High Court resulted in wrong
conclusion. In the view it took as to Regulation
103, the High Court proceeded to state that
even if there was retrenchment in view of
Regulation 5 of the Regulations, the Labour
Court was not competent to direct reinstatement
of the appellant who was not recruited in terms
of Regulation 5 because the Labour Court had to
act within the ambit of law having regard to the
Regulations by which the workman was
governed. In this view, the High Court declined
relief to the appellant which in our view cannot
be sustained. The Tribunal felt difficulty in
ordering reinstatement as the appellant was not
a regular employee. The appellant ought to have
been ordered to be reinstated in service once it
was found that his services were illegally
terminated in the post he was holding including
its nature. Thus in our opinion both the Tribunal
38
as well as the High Court were not right and
justified on facts and in law in refusing the relief
of reinstatement of the appellant in service with
back wages. But, however, having regard to the
facts and circumstances of the case and taking
note of the fact that the order of termination
dates back to 19.7.1985 we think it just and
appropriate in the interest of justice to grant
back wages only to the extent of 50%."
The learned Single Judge in W.P.(C) No.1194 of 2003
further discussed the provision under Rule 58 of 1984 Rules and
held that a plain interpretation of the Rule would go to show that
none of the rules prescribed thereunder shall operate in
derogation of any law applicable. It was further held that the
petitioner having been found to be a workman by the Tribunal,
who has put in more than two hundred forty days work in one
calendar year, cannot be deprived of his rights under the I.D.
Act. The learned Single Judge then took into account the
observation of the Tribunal that the petitioner was retrenched
from service and such findings were not challenged by the
management and have become final. The learned Single Judge
then discussed the ratio laid down by the Hon'ble Supreme Court
in the case of N. Sundara Money (supra) wherein the
respondent N. Sundara Money was appointed off and on, by the
State Bank of India and it is held that if the workman swims into
39
the harbor of section 25-F, he cannot be retrenched without
payment, at the time of retrenchment, compensation computed
as prescribed therein read with section 25-B (2). A breakdown of
section 2(oo) unmistakably expands the semantics of
retrenchment. Termination for any reasons whatsoever are the
keywords. Whatever be the reason, every termination spells
retrenchment. To protect the weak against the strong, the policy
of comprehensive definition has been effectuated. Termination
embraces not merely the act of termination by the employer, but
the fact of termination howsoever produced. Retrenchment
means 'to end, conclude, cease'. The Hon'ble Supreme Court
ultimately held that the respondent shall be put back where he
left off, but his new salary will be what he would draw were he to
be appointed in the same post denovo. The learned Single Judge
applying the ratio laid down in the case of N. Sundara Money
(supra), further held that the conclusions arrived at by the
Tribunal are fallacious and the provisions of section 25-F of the
I.D. Act have been utterly violated by the employer entitling the
petitioner-workman to one order of reinstatement as the
retrenchment is found to be illegal.
Therefore, we are of the view that the learned Single
Judge in W.P.(C) No.1194 of 2003 has passed a reasoned order
discussing the contentions raised by the respective parties, the
40
legal points and also how the conclusions arrived at by the
Tribunal are fallacious.
22. The learned counsel for the Review Petitioners mainly
contended that any appointment made in violation of the
recruitment rules would be violative of Articles 14 and 16 of the
Constitution of India rendering the same as nullity and the
appointments of the opposite parties being void ab initio, there
exists no relationship of master and servant between the review
petitioners Bank and the opposite parties and that the provision
under section 25-F of the I.D. Act does not come into play.
We have already held that the engagement of the
appellant in the writ appeal and the opposite parties in the
review petitions were not in accordance with the 1984 Rules. In
the case of Umadevi (supra) placed by the learned counsel for
the Review Petitioners, the observations of the Constitution
Bench of the Hon'ble Supreme Court are as follows:-
"33.....By and large, what emerges is that
regular recruitment should be insisted upon,
only in a contingency can an adhoc appointment
be made in a permanent vacancy, but the same
should soon be followed by a regular recruitment
and that appointments to non-available posts
should not be taken note of for regularization.
xxx xxx xxx xxx
41
43......Therefore, consistent with the scheme for
public employment, this Court while laying down
the law, has necessarily to hold that unless the
appointment is in terms of relevant rules and
after a proper competition among qualified
persons, the same would not confer any right on
the appointee. If it is a contractual appointment,
the appointment comes to one end at the end of
the contract, if it were an engagement or
appointment on daily wages or casual basis, the
same would come to one end when it is
discontinued. Similarly, a temporary employee
could not claim to be made permanent on the
expiry of his term of appointment. It has also to
be clarified that merely because a temporary
employee or a casual wage worker is continued
for a time beyond the term of his appointment,
he would not be entitled to be absorbed in
regular service or made permanent, merely on
the strength of such continuance, if the original
appointment was not made by following a due
process of selection as envisaged by the relevant
rules.
xxx xxx xxx xxx
45......In order words, even while accepting the
employment, the person concerned knows the
nature of his employment. It is not an
appointment to a post in the real sense of the
term. The claim acquired by him in the post in
which he is temporarily employed or the interest
42
in that post cannot be considered to be of such a
magnitude as to enable the giving up of the
procedure established, for making regular
appointments to available posts in the serves of
the State.
xxx xxx xxx xxx
47......Therefore, the theory of legitimate
expectation cannot be successfully advanced by
temporary, contractual or casual employees.
48......No right can be founded on an
employment on daily wages to claim that such
employee should be treated on a par with a
regularly recruited candidate, and made
permanent in employment, even assuming that
the principle could be invoked for claiming equal
wages for equal work. There is no fundamental
right in those who have been employed on daily
wages or temporarily or on contractual basis, to
claim that they have a right to be absorbed in
service. As has been held by this Court, they
cannot be said to be holders of a post, since, a
regular appointment could be made only by
making appointments consistent with the
requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally with
the other employees employed on daily wages,
cannot be extended to a claim for equal
treatment with those who were regularly
employed. That would be treating unequals as
equals. It cannot also be relied on to claim a
43
right to be absorbed in service even though they
have never been selected in terms of the
relevant recruitment rules. The arguments based
on Articles 14 and 16 of the Constitution are
therefore overruled."
The learned counsel for the Review Petitioners
further placed reliance in the case of Nagendra Chandra
(supra) wherein the Hon'ble Supreme Court held that if an
appointment is made in infraction of the recruitment rules, the
same would be violative of Articles 14 and 16 of the Constitution
and being nullity would be liable to be cancelled.
The learned counsel for the Review Petitioners in
support of his contentions that the principle laid down in the case
of Umadevi (supra) is also equally applicable to industrial
adjudication, placed reliance in the case of U.P. Power
Corporation Ltd. (supra), wherein it is held as follows:-
"5. It is true as contended by learned
Counsel for the respondent that the question as
regards the effect of the Industrial Adjudicators'
powers was not directly in issue in Umadevi's
case (supra). But the foundational logic in
Umadevi's case (supra) is based on Article 14
of the Constitution of India, 1950 (in short the
'Constitution'). Though the Industrial Adjudicator
can vary the terms of the contract of the
44
employment, it cannot do something which is
violative of Article 14. If the case is one which is
covered by the concept of regularization, same
cannot be viewed differently."
23. Now the vital point for consideration is that since the
engagement of the appellant in the writ appeal as well as the
opposite parties in the review petitions were not in accordance
with the 1984 Rules but they were found to have been engaged
on daily wage basis and treated as workmen by the Tribunal,
who had put in more than two hundred forty days work in one
calendar year and provisions of section 25-F of the I.D. Act have
not been followed for their retrenchment, whether any relief can
be granted to them.
At this stage, it would be profitable to discuss the
principles enunciated in the citations placed by the learned
counsel for the opposite parties in the review petitions. In the
case of Durgapur Casual Workers Union (supra), it is held as
follows:-
"12......The Industrial Disputes Act is applicable
to all the industries as defined under the Act,
whether the government undertaking or private
industry. If any unfair labour practice is
committed by any industrial establishment,
whether government undertaking or private
undertaking, pursuant to reference made by the
45
appropriate Government, the Labour
Court/Tribunal will decide the question of unfair
labour practice.
xxx xxx xxx xxx
20. The effect of the Constitution Bench
decision in Umadevi (supra), in case of unfair
labour practice was considered by this Court in
case of Maharashtra SRTC -Vrs.- Casteribe
Rajya Parivahan Karmchari Sanghatana
reported in (2009) 8 SCC 556. In the said
case, this Court held that Umadevi's case has
not overridden powers of the Industrial and
Labour Courts in passing appropriate order, once
unfair labour practice on the part of the
employer is established. This Court observed
and held as follows:
"34. It is true that Dharwad District
PWD Literate Daily Wages Employees'
Assn. -Vrs.- State of Karnataka : (1990) 2
SCC 396 arising out of industrial adjudication
has been considered in State of Karnataka
-Vrs.- Umadevi : (2006) 4 SCC 1 and that
decision has been held to be not laying down
the correct law but a careful and complete
reading of the decision in Umadevi leaves no
manner of doubt that what this Court was
concerned with in Umadevi was the exercise
of power by the High Courts under Article 226
and this Court under Article 32 of the
Constitution of India in the matters of public
46
employment where the employees have been
engaged as contractual, temporary or casual
workers not based on proper selection as
recognised by the rules or procedure and yet
orders of their regularization and conferring
them status of permanency have been
passed.
35. Umadevi is an authoritative
pronouncement for the proposition that the
Supreme Court (Article 32) and the High
Courts (Article 226) should not issue
directions of absorption, regularization or
permanent continuance of temporary,
contractual, casual, daily wage or ad hoc
employees unless the recruitment itself was
made regularly in terms of the constitutional
scheme.
36. Umadevi does not denude the
Industrial and Labour Courts of their statutory
power under section 30 read with section 32
of the MRTU and PULP Act to order
permanency of the workers who have been
victims of unfair labour practice on the part of
the employer under Item 6 of Schedule IV
where the posts on which they have been
working exist. Umadevi cannot be held to
have overridden the powers of the Industrial
and Labour Courts in passing appropriate
order under section 30 of the MRTU and PULP
Act, once unfair labour practice on the part of
47
the employer under Item 6 of Schedule IV is
established."
In the case of Casteribe Rajya P. Karmchari
Sanghatana (supra), it is held as follows:-
"45. The question now remains to be seen is
whether the recruitment of these workers is in
conformity with Standing Order 503 and, if not,
what is its effect? No doubt, Standing Order 503
prescribes the procedure for recruitment of Class
IV employees of the Corporation which is to the
effect that such posts shall be filled up after
receiving the recommendations from the Service
Selection Board and this exercise does not seem
to have been done but Standing Orders cannot
be elevated to the statutory rules. These are not
statutory in nature.
46. We find merit in the submission of Mr.
Shekhar Naphade, learned Senior Counsel for
the employees that Standing Orders are
contractual in nature and do not have a
statutory force and breach of Standing Orders by
the Corporation is itself an unfair labour
practice. The employees concerned having been
exploited by the Corporation for years together
by engaging them on piece-rate basis, it is too
late in the day for them to urge that procedure
laid down in Standing Order 503 having not
been followed, these employees could not be
given status and privileges of permanency. The
48
argument of the Corporation, if accepted, would
tantamount to putting premium on their
unlawful act of engaging in unfair labour
practice.
47. It was strenuously urged by the learned
Senior Counsel for the Corporation that the
Industrial Court having found that the
Corporation indulged in unfair labour practice in
employing the complainants as casuals on piece
rate basis, the only direction that could have
been given to the Corporation was to cease and
desist from indulging in such unfair labour
practice and no direction of according
permanency to these employees could have
been given. We are afraid, the argument ignores
and overlooks the specific power given to the
Industrial/Labour Court under Section 30(1)(b)
to take affirmative action against the erring
employer which as noticed above is of wide
amplitude and comprehends within its fold a
direction to the employer to accord permanency
to the employees affected by such unfair labour
practice."
In case of General Secretary, North Orissa
Workers Union (supra), it is held as follows:-
"10.....Adverting to the factual aspect, it is the
case of the petitioner that the workmen were
continuously working in different projects at
different places. Appointment orders were
49
proved on behalf of the workmen to indicate that
artificial breaks were given. There is no dispute
that the burden of proof is on the petitioner to
show that the workmen had worked for two
hundred and forty days in preceding twelve
months prior to their alleged retrenchment. The
burden can be discharged by adducing cogent
evidence, both oral and documentary. If the
workman discharges his burden that he had
worked for two hundred and forty days in
preceding twelve months period prior to his
termination without following section 25F of
1947 Act, the termination would be illegal. In
case of R.M. Yellatty -Vrs.- Assistant
Executive Engineer reported in (2006) 1
Supreme Court Cases 106, it is held that in
case of termination of service of daily-waged
earners, there will be no letter of appointment or
termination. There will also be no receipt of
proof of payment. In most cases, the workman
can only call upon the employer to produce
before the Court the nominal muster roll for the
given period, the letter of appointment or
termination, if any, the wage register, the
attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on
the facts of each case. In case of Director,
Fisheries Terminal Division (supra), it is held the
workman would have difficulty in having access
to all the official documents, muster rolls etc. in
50
connection with his service. When the workman
has come forward and deposed, the burden of
proof shifts to the employer to prove that he did
not complete two hundred and forty days of
service in the requisite period to constitute
continuous service.....At the time of their
disengagement, even when they had continuous
service for such period, they were not given any
notice or pay in lieu of notice as well as
retrenchment compensation. Thus, mandatory
precondition of retrenchment in paying the
aforesaid dues in accordance with section 25F of
the 1947 Act was not complied with. That is
sufficient to render the termination as illegal.
Therefore, we are of the view that the
observation of the learned Tribunal that the
work was contractual in nature and it was not
continuous and therefore, the benefits under
section 25F is not applicable, is perverse and
contrary to the evidence on record."
In the case of Hindustan Tin works Pvt. Ltd.
(supra), it is held as follows:-
"9.......Speaking realistically, where termination
of service is questioned as invalid or illegal and
the workman has to go through the gamut of
litigation, his capacity to sustain himself
throughout the protracted litigation is itself such
an awesome factor that he may not survive to
see the day when relief is granted. More so in
51
our system where the law's proverbial delay has
become stupefying. If after such a protracted
time and energy consuming litigation during
which period the workman just sustains himself,
ultimately he is to be told that though he will be
reinstated, he will be denied the back wages
which would be due to him, the workman would
be subjected to a sort of penalty for no fault of
his and it is wholly undeserved. Ordinarily,
therefore, a workman whose service has been
illegally terminated would be entitled to full back
wages except to the extent he was gainfully
employed during the enforced idleness. That is
the normal rule. Any other view would be a
premium on the unwarranted litigative activity of
the employer. If the employer terminates the
service illegally and the termination is motivated
as in this case viz. to resist the workmen's
demand for revision of wages, the termination
may well amount to unfair labour practice. In
such circumstances reinstatement being the
normal rule, it should be followed with full back
wages...."
In the case of Surendra Kumar Verma (supra), it is
held as follows:-
"6.......Plain common sense dictates that the
removal of an order terminating the services of
workmen must ordinarily lead to the
reinstatement of the services of the workmen. It
52
is as if the order has never been and so it must
ordinarily lead to back wages too. But there may
be exceptional circumstances which make it
impossible or wholly inequitable vis-a-vis the
employer and workmen to direct reinstatement
with full back wages. For instance, the industry
might have closed down or might be in severe
financial doldrums; the workmen concerned
might have secured better or other employment
elsewhere and so on. In such situations, there is
a vestige of discretion left in the Court to make
appropriate consequential orders. The Court may
deny the relief of reinstatement where
reinstatement is impossible because the industry
has closed down. The Court may deny the relief
of award of full back wages where that would
place an impossible burden on the employer....."
In the case of P Gundu Surwase (supra), it is held
as follows:-
"33.....(v) The cases in which the competent
Court or Tribunal finds that the employer has
acted in gross violation of the statutory
provisions and/or the principles of natural justice
or is guilty of victimizing the employee or
workman, then the concerned Court or Tribunal
will be fully justified in directing payment of full
back wages. In such cases, the superior Courts
should not exercise power under Articles 226 or
136 of the Constitution and interfere with the
53
award passed by the Labour Court, etc., merely
because there is a possibility of forming a
different opinion on the entitlement of the
employee/workman to get full back wages or the
employer's obligation to pay the same. The
Courts must always be kept in view that in the
cases of wrongful/illegal termination of service,
the wrongdoer is the employer and sufferer is
the employee/workman and there is no
justification to give premium to the employer of
his wrongdoings by relieving him of the burden
to pay to the employee/workman his dues in the
form of full back wages."
In view of the principle laid down by the Hon'ble
Supreme Court, we are in agreement with the view expressed by
the learned Single Judge in W.P.(C) No.1194 of 2003 that the
opposite parties in the review petitions (similar is the case of the
appellant in the writ appeal) were engaged on daily wage basis
by the Bank and they worked there continuously for more than
two hundred forty days in a calendar year and their wages were
revised from time to time. The same was also the view of the
Tribunal. We are also in agreement with the view expressed by
the learned Single Judge that even though the engagement of
the opposite parties in the review petitions (which is also the
case of appellant in the writ appeal) were not in accordance with
54
the 1984 Rules but they were rightly treated as workmen by the
Tribunal, who had put in more than two hundred forty days work
in one calendar year. We are also in agreement with the view
expressed by the learned Single Judge that provisions of section
25-F of the I.D. Act have not been followed by the employer for
the retrenchment of the workmen. However, we are not inclined
to the view expressed by the learned Single Judge that the
opposite parties in the review petitions be reinstated in service.
The Hon'ble Supreme Court in the case of Asst. Engineer,
Rajasthan Dev. Corp. & Another -Vrs.- Gitam Singh
reported in (2013) 5 Supreme Court Cases 136 has held
that it can be said without any fear of contradiction that the
Supreme Court has not held as an absolute proposition that in
cases of wrongful dismissal, the dismissed employee is entitled
to reinstatement in all situations. It has always been the view of
the Supreme Court that there could be circumstance(s) in a case
which may make it inexpedient to order reinstatement.
Therefore, the normal rule that the dismissed employee is
entitled to reinstatement in cases of wrongful dismissal has been
held to be not without exception. Insofar as wrongful termination
of daily-rated workers is concerned, the Supreme Court has laid
down that consequential relief would depend on post of factors,
namely, manner and method of appointment, nature of
55
employment and length of service. Where the length of
engagement as daily wager has not been long, award of
reinstatement should not follow and rather compensation should
be directed to be paid. It was further held that a distinction has
to be drawn between a daily wager and an employee holding the
regular post for the purposes of consequential relief. In the said
case, the Hon'ble Supreme Court set aside the order of the
learned Single Judge as well as the Division Bench of the High
Court in confirming the award of the labour Court in directing
reinstatement of the respondent Gitam Singh and also 25% of
back wages and held that compensation of Rs.50,000/- by the
appellant to the respondent shall meet the ends of justice.
Similar view has been taken by the Hon'ble Supreme Court in
the cases of State of M.P. and others -Vrs.- Lalit Kumar
Verma reported in (2007) 1 Supreme Court Cases 575,
Uttaranchal Forest Development Corporation -Vrs.- M.C.
Joshi reported in (2007) 9 Supreme Court Cases 353, Sita
Ram and others -Vrs.- Motilal Nehru Farmers Training
Institute reported in (2008) 5 Supreme Court Cases 75,
Ghaziabad Development Authority -Vrs.- Ashok Kumar
reported in (2008) 4 Supreme Court Cases 261 and Jagbir
Singh -Vrs.- Haryana State Agriculture Marketing Board
and another reported in (2009) 15 Supreme Court Cases
56
327. The aforesaid view has also been reiterated by this Court in
the case of Executive Engineer, Badanala Irrigation
Division, Kenduguda -Vrs.- Ratnakar Sahoo and another
reported in 2011 (Supp.I) Orissa Law Reviews 556.
In the case of District Development Officer -Vrs.-
Satish Kantilal Amrelia reported in (2018) 12 Supreme
Court Cases 298, it is held that even though the termination
was bad due to violation of section 25-G of the I.D. Act but it
would be just, proper and reasonable to award lump sum
monetary compensation to the respondent in full and final
satisfaction of his claim of reinstatement and accordingly a total
sum of Rs.2,50,000/- was directed to be paid to the respondent
in lieu of his right to claim reinstatement and back wages in full
and final satisfaction of the dispute.
In view of the ratio laid down in the aforesaid
decisions and in the peculiar facts and circumstances of the case,
the direction of reinstatement in service to the opposite parties
in the review petitions is not sustainable in the eye of law.
However, taking into account the length of service of each of the
opposite parties under the Bank, the length of period they faced
litigation in different forums, the litigation costs incurred by
them, their sufferings and the fact that we are not in favour of
their reinstatement, we are of the humble view that the amount
57
of compensation of Rs.50,000/- (rupees fifty thousand) as has
been fixed by the learned Single Judge in W.P.(C) No.1194 of
2003 appears to be just, proper and reasonable.
Conclusion:-
24. In view of the foregoing discussions, we allow the
writ appeal vide W.A. No.208 of 2008 filed by appellant Urmila
Shah and set aside the order dated 19.06.2008 passed in
W.P.(C) No.298 of 2003 but while not inclined to grant
reinstatement in service to the appellant, the view taken by the
learned Presiding Officer, Industrial Tribunal, Rourkela in I.D.
Case No.12 of 2001 in the award dated 23.10.2002 directing
payment of compensation at the rate of wages for fifteen days
on completion of every two hundred forty days at the existing
and prevalent scale of Rs.80/- per day is substituted with a
direction to the respondent Bank to pay compensation of
Rs.50,000/- (rupees fifty thousand) to the appellant in full and
final satisfaction of the dispute. We also dismiss all the review
petitions i.e. RVWPET Nos.57, 58, 59, 60, 61, 62, 63, 64 and 65
of 2010 but while upholding the view taken by the learned Single
Judge in W.P.(C) No.1194 of 2003 and other connected writ
petitions in the judgment and order dated 10.03.2010 regarding
payment of compensation of Rs. 50,000/- (rupees fifty thousand)
to the each of the respective petitioners in lieu of back wages,
58
we set aside that part of the order regarding their reinstatement
in the service of the Bank. The Bank shall pay the compensation
amount within a period of three months from today.
Accordingly, the writ appeal and the review petitions
are disposed of. No costs.
.......................
S.K. Sahoo, J.
S. Panda, A.C.J. I agree.
......................
S. Panda Acting Chief Justice Orissa High Court, Cuttack The 29th January 2020/Pravakar/Sisir/RKM/Sukanta