Delhi High Court - Orders
State Bank Of India And Anr vs Sh. Dev Bahadur on 8 February, 2021
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5455/2019 & CM Nos.23925/2019, 8218/2020
STATE BANK OF INDIA AND ANR. .....Petitioners
Through : Mr. Rajiv B. Samaiyar, Adv.
versus
SH. DEV BAHADUR .....Respondent
Through : Mr. Om Narayn Pandey, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 08.02.2021 [Court hearing convened via video-conferencing on account of COVID-19] CM No.8218/2020
1. This is an application filed by the respondent-workman under Section 17B of the Industrial Disputes Act, 1947 [in short "I.D. Act, 1947"].
2. It is the case of the respondent-workman that he was engaged as a Sweeper-cum-Lunch Attendant with the petitioner-bank in April 1995 at an initial salary of Rs. 900/- per month, which was, later on, enhanced to Rs. 7,700/- per month.
2.1. According to the respondent-workman, on 02.07.2002, his services were abruptly and illegally terminated by the petitioner-bank. This action was challenged by the respondent-workman before the Central Government Industrial Tribunal-cum-Labour Court [in short "Tribunal"].
W.P.(C) 5455/2019 1/6 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:10.02.2021 02:29:312.2. The Tribunal, vide award dated 12.05.2006, directed the petitioner- bank to reinstate the respondent-workman with 50% back wages. This award was challenged by the petitioner-bank by way of a writ petition i.e. W.P.(C) No.12133/2006.
2.3. I am informed by the counsels for the parties that in the said writ petition, the learned Single Judge passed an order dated 24.01.2013, whereby, the following was directed:
"Learned counsel for the petitioner has tendered in Court an affidavit of Mr. P.K. Saxena, the Chief Manager of Chandni Chowk Branch of the petitioner-bank, and the same is taken on record. The petitioner has, apart from tendering unconditional and unqualified apology for its past conduct, stated that the petitioner-bank shall pay to the respondent on a month to month basis the last drawn wages or as applicable minimum wages from time to time, whichever is higher.
Learned counsel for the respondent points out that petitioner- bank was not making payment of other allowances, which are statutorily payable even to a casual worker. The petitioner- bank is bound to pay to the respondent all such allowances and grant benefits which are admissible as per law even to a casual worker.
The petitioner shall pay arrears from 19.03.2012 onwards the wages, as aforesaid, alongwith admissible allowances till date within two weeks, after adjusting any amount paid to the respondent. The respondent shall report for duty on 28.01.2013 at the usual time and he shall be offered the work as per his status. He shall be permitted to mark his attendance in the register to be maintained by the petitioner."
2.4. It is the case of the respondent-workman that because he fell ill and suffered from paralysis, for the period spanning between July 2013 and 11.01.2016, he could not join work.
W.P.(C) 5455/2019 2/6 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:10.02.2021 02:29:312.5. The petitioner-bank, on the other hand, says that the respondent- workman had abandoned the service, after re-joining the work, for a short period; pursuant to the order of this Court dated 24.01.2013.
3. In the impugned award, the Tribunal has dealt with this aspect of the matter in paragraphs 12 and 13. For the sake of convenience, the same are extracted hereafter:
"12. As regards the controversy whether the claimant himself abandoned the job as alleged by the Management or whether the services of the claimant were terminated illegally by the Management, as alleged by the claimant, it will be worthwhile to refer to the evidence adduced by the parties on record. The testimony of the workman/claimant is in line with the averments made in the claim petition. He has filed on record documents Ex.WW1/1 (colly.) viz. medical certificates/prescriptions and cash memos to show that he was suffering from acute gastritis and was under treatment of Dr. Nirmal K. Gyawali, Consultant Anesthesiologist of Bheri Zonal Hospital, Nepalgunj from September, 2013 to November, 2015. In his cross examination he denied the suggestion that he abandoned his job in July, 2013 but admitted that due to paralysis he did not report for duties for about 2-1/2 years. He volunteered that he had reported back for duties after recovering from his illness in January, 2016. On the other hand, MW1 Shri Avnish Kumar Srivastava clarified that he is not personally aware about the terms of engagement/appointment of the claimant since he himself had joined in the Chandni Chowk Branch in August, 2015 only and thus have no personal knowledge about the facts of the case. He could not say if the claimant worked satisfactorily again after rejoining his duty with the Management Bank from the year 2013 onwards or that the claimant was seriously ill and had got paralysis in his whole body in July, 2013 and that is why he could not join his duties.W.P.(C) 5455/2019 3/6 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:10.02.2021 02:29:31
He admitted that the claimant had applied for leave about his illness but volunteered that sanction of leave was not considered by the Management since the workman was just working as a labour. He shows his ignorance if the family members of the claimant during illness of the claimant had duly apprised the Branch Manager over telephone from Nepal about his inability to join duty on medical grounds and the Branch Manager had assured them not to worry. He also admitted that the claimant had given demand notice dated 31/7/2016 (sic. 31/3/2016) to the Management. He also admitted that neither any show cause notice nor any charge sheet was issued against the claimant the claimant before his termination from service. He also admitted that the requirement of sweeper cum lunch attendant is on regular basis in the Management branch.
13. From the evidence adduced on record as discussed above, it can be safely inferred that there was no intent on the part of the claimant to abandon the job, rather his absence from duty was due to his serious ailments. It has come on record that the claimant has been retrenched/terminated from service w.e.f. 27/7/1995 without issuance of any show cause notice/charge sheet and without payment of compensation in lieu of notice period. There is long line of decisions of Hon‟ble Apex Court as well as of various High Courts that provisions of Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the provisions of Section 25-F of the Act will render whole action of the Management Bank to be illegal and wrong under the law."
3.1. Furthermore, in paragraph 14 of the award, the Tribunal has also noted that the petitioner-bank did not produce any evidence to demonstrate that the respondent-workman was gainfully employed in any other establishment or was in a position to make his ends meet. Observations to this effect are contained in paragraph 14, which is also set forth hereafter:
W.P.(C) 5455/2019 4/6 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:10.02.2021 02:29:31"14. The Management has not adduced any evidence to show that the claimant is gainfully employed somewhere else or that the workman is in a position to make his both ends meet by doing any work. Even if it is assumed that the workmen is doing some intermittent or adhoc work to make his both ends meet that would not itself amount to gainful employment. In the circumstances, it is held that action of the Management in terminating the service of the workman/claimant w.e.f. 11/1/2016 is totally illegal and wrong and is in violation of Section 25-F of the Act."
3.2. Finally, via the impugned award, the Tribunal, having regard to the fact that the respondent-workman was performing duties qua a post, which was regular and perennial in nature, directed his reinstatement in service with 50% back wages, as, according to it, the termination was "per se illegal".
3.3. The respondent-workman continues to hold the position that he is not gainfully employed. The petitioner-bank has not brought anything on record, which would demonstrate, that the respondent-workman is gainfully employed.
3.4. Therefore, having regard to the foregoing, I am of the view that the relief sought for, by the respondent-workman, in this application should be granted.
3.5. It is ordered accordingly.
3.6. The petitioner-bank will, thus, pay to the respondent-workman, his last drawn wages or the minimum wages, whichever of the two is higher.
W.P.(C) 5455/2019 5/6 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:10.02.2021 02:29:313.7 The last drawn wages will be those, which were paid to the respondent-workman, when he re-joined the service, pursuant to the order dated 24.01.2013, passed by this Court, in W.P.(C) No.12133/2006.
4. The captioned application is disposed of in the aforementioned terms. W.P.(C) 5455/2019 & CM No.23925/2019
5. Mr. Om Narayan Pandey, who appears for the respondent-workman, says that he will have the counter-affidavit, already filed on behalf of the respondent-workman, placed on record, after removing objections.
6. List on 19.07.2021.
7. In the meanwhile, interim order dated 17.05.2019 will continue to operate.
RAJIV SHAKDHER, J FEBRUARY 08, 2021/pmc Click here to check corrigendum, if any W.P.(C) 5455/2019 6/6 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:10.02.2021 02:29:31