Madhya Pradesh High Court
State Bank Of India vs Sbi Workmen Union on 31 October, 2014
1 Writ Petition No.7931/2012
[State Bank of India Vs. SBI Workmen Union]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
WRIT PETITION NO.7931/2012
.........Petitioner: State Bank of India
Versus
.......Respondent: SBI Workmen Union
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Shri V.S. Shroti, Senior Advocate assisted by Shri Raju Sharma
and Shri Vikram Johri, Advocate for petitioner.
Shri D.P.S. Bhadoriya, Advocate for respondent.
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Date of hearing : 19/09/2014
Date of order : 31/10/2014
Whether approved for reporting :
ORDER
(31/10/2014) Per Justice Rohit Arya, By this petition under Article 227 of the Constitution of India challenge is made to the award dated 16/4/2012 passed by the Central Government Industrial Tribunal Cum Labour Court, Jabalpur in reference case No.CGIT/LC/R/48/99. By the aforesaid award the dispute referred to the Tribunal for adjudication is to the following effect:-
"Whether the action of the management of State Bank of India in terminating the services of 10 employees (as per 2 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] list enclosed) is justified? If not, to what relief the workmen are entitled for?"
and the same has been answered in favour of the workmen directing the management-State Bank of India to reinstate the workmen, namely, Santosh Kumar, Roop Kishore, Bhagwan Das and Kashiram Shivhare with back wages out of ten persons in respect of whom the reference was made, as termination of employment of these four workmen was found to be retrenchment, which became illegal for want of payment of compensation as provided under Section 25-F of the Industrial Disputes Act.
2. Facts necessary for disposal of this petition are to the effect that consequent upon failure of conciliation proceedings dispute as aforesaid was referred to the CGIT cum Labour Court, Jabalpur for adjudication on merits. Workmen filed statement of claim. As four persons, namely, Santosh Kumar, Roop Kishore, Bhagwan Das and Kashiram Shivhare have been awarded their claims, therefore, pleadings in the context of these four persons are relevant for the purpose of this petition.
As regards Santosh Kumar, it was averred that he was engaged by the management as a Messenger-cum-Faras in the Sarai Chhola Branch. He worked from 1/1/1980 to 7/4/1997. His services were terminated without assigning any reason and he was not permitted to perform his duties w.e.f.8/4/1997. 3 Writ Petition No.7931/2012
[State Bank of India Vs. SBI Workmen Union] As regards Roop Kishore, it has been averred that he was engaged in Banmore Branch as Messenger-cum-Faras. He worked from 20/2/1986 to 7/4/1997. His services were terminated on 8/4/1997 without assigning any reason and he was not allowed to perform his duties.
As regards Bhagwan Das, it is averred that he worked in Banmore Branch as Water-boy from February, 1988 to March, 1997. His services were terminated without assigning any reason and from April, 1997 and he was not permitted to perform his duties.
As regards Kashiram Shivhare, it is averred that he worked from 1/1/1986 till November, 1997 as Messenger, Waterman and Faras in Thara Branch. As such, he has worked for more than ten years. For no rhyme or reason his services has been discontinued and restrained him from working from November, 1997.
3. All the aforesaid workmen have submitted that they have worked more than 240 days in a calender year. As such, arbitrary termination of their employment under such circumstances amounts to retrenchment, since no retrenchment compensation has been paid, as provided for under Section 25-F of the Industrial Disputes Act, the same is illegal and void ab initio. That apart, it is also submitted that the nature of work being done by the workmen was perennial in nature, however, despite availability of work, workmen have been terminated though they ought to have been 4 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] regularized. With the aforesaid pleadings, workmen claimed for setting aside of their termination and reinstatement in service.
4. The petitioner/management filed written statement and denied the claim inter alia contending that none of the workmen have worked continuously 240 days in a calender year and, therefore, are not entitled for regularization, instead workmen were employed as purely temporarily casual employees in various branches of the Bank. Their services were utilized intermittently on availability of casual work. The nature of work performed by the workmen was not permanent. The petitioner/management also stated in written statement the number of days worked by the aforesaid workmen on daily-wages and also worked on consolidated wages. It also sought to explain the meaning of consolidated wages paid to the workmen and indicated in the written statement in respect of each workman in different years. It is stated that in fact the consolidated wages means the wages paid to the workman for the period he has worked. It is submitted that the workmen were engaged on contract basis, which commenced with the opening hours and ends with the closing hours of the Bank, and solely dependent upon the exigency of work. Workmen were free not to come on the next day and similarly management was at liberty for not engaging them on the next day. Therefore, engagement of the workmen was totally need base. As exigency was over, workmen were not required to be 5 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] continued. They were paid on daily-wages basis and were never in continuous employment at any time during the aforesaid period, therefore, their non-engagement would not be a retrenchment under Section 2(oo) of the Industrial Disputes Act. Hence, discontinuance of the workmen shall not make them liable for payment of compensation and, therefore, for want of compensation, discontinuance cannot be said to be an illegal retrenchment. That apart, it is submitted that the Bank has its own recruitment rules for selection of subordinate staff on regular basis. The Bank Managers of the branches were not competent to engage the workmen and, therefore, no right is accrued on them as against the post on which they have performed the duties. It is also averred that in terms of the settlement between the State Bank of India and All India State Bank of India Staff Federation dated 17/11/1987, workmen were given chances for selection for regularization in category 'A', 'B' and 'C' for permanent employment, but were disqualified.
5. As regards Kashiram Shivhare, apart from denying the claim of having worked for more than ten years, it is submitted that he was given an opportunity to face the permanent selection, for which he appeared in the interview on 26/12/1990, his name was given in the waiting list and was to be permanently absorbed subject to the availability of vacancy at the relevant time, but he could not be absorbed being junior to the persons permanently 6 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] absorbed.
6. As regards Santosh Kumar, apart from denial of averments as regards length of period and work performed by him, it is submitted that he was given an opportunity to face the permanent selection, for which he appeared in the interview on 6/11/1992, however, was not found fit for permanent absorption.
7. As regards Roop Kishore, besides denial of the claim of having worked as stated in the statement of claim, it is averred that he was given an opportunity to face permanent selection, for which he appeared in the interview on 6/11/1992, his name was given in the waiting list and was to be permanently absorbed subject to the availability of vacancy at the relevant time, but he could not be absorbed being junior to the persons permanently absorbed.
8. Lastly, as regards Bhagwan Das, apart from similar nature of denial of the claim of having worked as stated in the statement of claim, it is submitted that he was also given an opportunity to face permanent selection, for which he appeared in the interview on 4/11/1992, his name was also included in the waiting list and was to be permanently absorbed subject to the availability of vacancy at the relevant time, but he too could not be absorbed being junior to the persons permanently absorbed.
9. Labour Court framed the issues. The workmen in support of their claim have led oral evidence and also filed documentary 7 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] evidence.
10. Since evidence of all workmen are almost similar, therefore, counsel for the management has referred to the evidence of Bhagwan Das, who is one of the four workmen ordered to be reinstated with back-wages by the impugned award. The workmen stated that he was engaged as temporary Waterboy, Class IV, w.e.f.1/2/1988. He has performed duties with honesty, to the best of the ability and to the utmost satisfaction of superiors. The nature of duties as performed by him was catering to the requirements of the employees and officers of the Bank viz. providing drinking water, movement of registers, counting of notes etc. There was no other Waterboy posted in the branch. He was working from 9 O' Clock in the morning upto 6 O' Clock in the evening. He has worked continuously for nine years and each year has completed 240 days. In support of his claim of having worked for nine years and 240 in one calender year, the workman has filed certificate of the Bank dated 17/4/1997, wherein it is certified by the Branch Manager that Bhagwan Das S/o Shri Munnalal Shivhare had worked in the Branch for 3220 days and paid wages at the rate of Rs.190/- per month and during this period he worked as a Water-boy. Details of working days of the workman are also stamped by the Branch Manager duly signed with the seal of Bank. It is further stated that he has also worked as a Messenger in the regular pay scale. Certificate issued in that 8 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] behalf was also filed. In the year 1990 the Bank had initiated process of regularizing temporary workers. The workman had also applied in response to the notice published. He was called for interview vide letter dated 7/10/1992 and was interviewed on 4/11/1992 in the Regional Office, State Bank of India, Jayendraganj, Gwalior. Call letter dated 7/10/1992 is also annexed. It is further stated that thereafter no communication was made with the workman. More than five years period had passed and management had not taken any final decision after interview was concluded, therefore, a writ petition was filed before this Court vide W.P. No.665/1997. The order passed in the writ petition dated 4/8/1997 was also annexed. By the aforesaid order, this Court has observed that list pending for permanent absorption of Messengers could not be finalized for a period of approximately seven years. In absence of any explanation for not finalizing the list, selection was quashed with direction to respondent to make fresh selection of the candidates and consider all the candidates, who have become eligible for selection in the year 1997. Further direction was issued that the selection process should be completed by the management/Bank within three months from the date of receipt of the order. High Court's order was also annexed. It is submitted that thereafter no Water-boy was appointed for the work performed by the workman. On 31/3/1997, it is stated that the workman has been discontinued from service. He has also 9 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] referred to the settlement between Bank and Federation of Union on 20/2/1997 and 25/2/1997, which was also filed. It is stated that discontinuance was without any show-cause notice and without assigning any reason. It is further stated that discontinuance was a retrenchment and since no compensation was paid, therefore, the same was illegal. Workman also stated that he has been discriminated in the matter of continuance and regularization, as many persons among them, namely, Mukesh Kumar s/o Hari Singh and Kailash Shivhare appointed after discontinuance of the workman were regularized.
In the cross-examination the workman maintained that he worked from 1987 to 1997 and he was called for interview by the Bank, but, suggestion is denied that pursuant to the interview, persons, who were found on merit, were provided with the regular appointments. However, in the last sentence, on suggestion being put to the workman, he stated that he has not worked for 240 days or more as a Waterboy or Faras.
Evidence of remaining workmen, was also of the same nature, who have been ordered to be reinstated.
11. The management has produced only one witness, namely, Mr. B.M. Bhati, Deputy Manager, State Bank of India, Zonal Office, Gwalior. In examination-in-chief it is stated by him that the workmen were appointed on contract basis and none of the workmen had completed 240 days in a calender year preceding 10 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] the date of their termination. Appointments were not in accordance with the rules. In para 5 of the statement he stated that in the settlement dated 17/11/1987 between the State Bank of India and All India State Bank of India Staff Federation it was agreed that temporary employees in subordinate cadre falling in three categories i.e. Category 'A', Category 'B' and Category 'C' shall be given chance for being considered for permanent employment in the Bank service against the vacancies likely to arise between 1987 to 1991. These categories read as under:-
"I. CATEGORY 'A' Those, who have completed 240 days temporary service in 12 months or less after 1.7.75.
II. CATEGORY 'B' Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calender months after 1.7.75.
III. CATEGORY 'C' Those, who have completed a minimum of 30 days aggregate temporary service in any calender year after 1.7.75 or a minimum of 70 days aggregate temporary service in any continuous block of 36 calender months after 1.7.75."
In para 6 it is stated that first party employees (workmen) appeared in the interview, but were disqualified. The daily-wager 11 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] employees cannot be continued for a long period, the persons have to be put off.
12. In cross-examination the witness has stated, what he has deposed in examination-in-chief by way of affidavit is based on record and not his personal knowledge. Nine workers before the Tribunal were appointed in different branches of the Bank. They were paid weekly wages. In lieu of receipt, their signatures or thumb impressions were obtained on a register. In that register it is also recorded as to how many days the workmen had worked. The registers are maintained separately in each branch. He admits that he had not seen the register before deposing on affidavit. He further admits that he had not seen the wage-register in respect of said nine workers. He has no knowledge about the record of register in branches. He has no knowledge as to whether attendance of workers was recorded by the Bank or not. Such facts can be deposed only by the concerned Branch Manager. He further stated that though these workers were called for interview, but he has no knowledge about the subsequent developments. He has no knowledge about the aforementioned order of this Court in Writ Petition No.665/1997 dated 4/8/1997. As such, he has no knowledge about cancellation of interview. He has no knowledge as to whether in compliance of the High Court's order, subsequent interviews were held or not. The witness further tried to explain the engagement on consolidated wages basis 12 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] saying that such engagement was on fixed rate, which was the daily-wage rate. In third coloumn of his statement para 2 number of days workmen worked on daily-wages is shown. He further stated that the consolidated wages means total wages paid to a workman during his service period. He admits that nine workmen, in respect whereof reference was made for adjudication, have never worked directly under him. He has not paid wages to any of these workers. The details in respect of each workmen under the head 'period': worked on daily wages and worked on consolidated wages, were not based on the documents containing details on aforesaid heads supposed to be maintained by the Bank. Neither he has knowledge about such record nor has he seen the record. He has no knowledge about the attendance of workmen during the period they have worked in the branches of Bank.
13. On the basis of the aforesaid pleadings and evidence brought on record, the Tribunal was required to address on the terms of reference i.e. 'Whether the action of the management of State Bank of India in terminating the services of 10 employees is justified? If not, to what relief the workmen are entitled for?', however, the Tribunal has chosen four workmen, namely, Santosh Kumar, Roop Kishore, Bhagwan Das and Kashiram Shivhare out of nine workmen covered by the terms of reference directing reinstatement with back wages while answering the reference on the terms that these workers had worked for years together and, 13 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] therefore, Management was not justified terminating their services without complying with Section 25-F of the Industrial Disputes Act. The Tribunal also commented upon the stand taken by the petitioner/management inter alia observing that on the one hand Management stated that these workmen had been appointed temporarily and were casual workers working in different branches of State Bank of India and they are also stated to have been engaged on consolidated wages.
14. Assailing the award passed by the Tribunal learned senior counsel for the petitioner contended that the impugned award suffers from patent perversity and is in ignorance of the material placed on record. The Tribunal misconstrued the description/details of days of work in each year shown in respect of each workmen, as the coloumn showing consolidated wages was treated to be number of days workers had worked in the establishment, which was not correct. In fact workmen were called for only few hours and their wages were accordingly calculated by the number of hours they worked and paid. They have not performed the duties for regular working hours and, therefore, number of days shown under the coloumn 'consolidated wages' ought not to have been construed as number of days workers worked for full duty hours. Hence, reference answered in favour of four workmen was based on misreading of evidence as above. It is further submitted that in fact one of the workmen in reply to the 14 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] last question in cross-examination has admitted that he has not worked for total 240 days in a calender year and, therefore, this admission being vital in nature could not have skipped notice much less consideration of the Tribunal. It is also contended that even otherwise the award passed by the Tribunal is totally arbitrary. In support of his contentions learned counsel placed reliance on the judgments in the matters of Vice Chancellor, Utkal University and others Vs. S.K. Ghosh and others, AIR 1954 SC 217, Daman Singh and others Vs. State of Punjab and others, AIR 1985 SC 973, State of Haryana and others Vs. Piara Singh and others, 1992 Lab.I.C. 2168, Ashwani Kumar and others Vs. State of Bihar and others, (1997) 2 SCC 1, Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others, AIR 1997 SC 3657 and Secretary, State of Karnataka and others Vs. Umadevi (3) and Others, (2006) 4 SCC 1. With the aforesaid contentions, counsel submitted that the workmen were not entitled for the relief as ordered in the impugned award.
15. On the other hand, learned counsel for the workmen contended that the award is impregnable in nature. The workers have worked for number of years and almost in each year they have worked for more than 240 days. For example, in the case of Bhagwan Das- he had worked from February, 1988 to March, 1997 and total number of working days are 3220 on the salary of Rs.190/- per month performing the duties of a Water-boy in the 15 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] concerned branch. Certificate in this regard was filed before the Tribunal as Annexure W/1. Details of number of days worked by him every month of each year in tabulated form are provided by the petitioner/management duly stamped and the same was filed with the Tribunal as Annexure W/2. There is no evidence brought on record either contradicting the certificate issued by the Branch Manager or in denial of the details of work/duty performed by the workmen in respective branches for the number of days in every month of each year, as indicated above. That apart, it is also submitted that because of their satisfactory nature of duties they were called for interview for appointment on regular basis, however, selection process was not completed and, therefore, workers had approached the High Court by filing Writ Petition No.665/1997. The Single Bench of this Court vide order dated 4/8/1997 quashed the selection for want of explanation for not finalizing select list. The Court also directed respondent/management to make fresh selection of the candidates who became eligible for regularization in the year 1997 in a time bound programme of three months, but nothing was done. It is submitted that the workers have brought on record the complete evidence as regards details of the period during which they worked with the petitioner/Bank, whereas Management has not brought on record single document to controvert the said documents. The assertions made in the written statement 16 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] regarding details of number of days worked by each workmen was misleading in nature and likewise the alleged claim that the workers did not work for full duty hours and only worked for few hours and, therefore, were paid only consolidated wages in the entire service period as indicated in the written statement was also misleading in nature and without any basis. It is submitted that to establish the aforesaid assertions Management has not produced any evidence. In fact the solitary witness produced by the petitioner/management admits that the figures shown in the written statement in respect of each workmen was not in his personal knowledge, he had not seen the record, he was not aware regarding the details of working period of each workmen and he was also not aware whether workers were required to sign the attendance register or the register was maintained by the branch or not. It is submitted that with the aforesaid quality of evidence on record the Tribunal was fully justified having ordered for reinstatement of four workers, as contained in the impugned award. In support of his contentions, learned counsel has placed reliance on the judgments in the matters of The State Bank of India Vs. Shri N. Sundara Money, AIR 1976 SC 1111, Punjab Land Development and Reclamation Corporation Ltd. Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others, (1990) 3 SCC 682, Anoop Sharma Vs. Executive Engineer, Public Health, Division No.1, Panipat (Haryana), 17 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] (2010) 5 SCC 497 and Devinder Singh Vs. Municipal Council, Sanaur, (2011) 6 SCC 584. With the aforesaid contentions, it is prayed that the petition deserves to be dismissed.
16. Having carefully perused the impugned award, this Court is of the view that the Tribunal while adjudicating the dispute between the parties in the context of the terms of reference has not adverted to the entire evidence brought on record by both sides and has merely reiterated the averments in the pleadings of the parties and without giving any plausible justification has passed the impugned award granting relief to four persons, namely, Santosh Kumar, Roop Kishore, Bhagwan Das and Kashiram Shivhare, whereas denying the same to the remaining five persons. The Tribunal in all fairness ought to have discussed the evidence brought by each workmen on record vis-a-vis that of Management and after critical evaluation of the same, ought to have recorded the findings to draw conclusion for answering the reference. It appears that the Tribunal has not done the exercise properly as the impugned award does not conform to basic tenets of the concept of adjudicatory process under industrial law. In fact the Tribunal assumes jurisdiction from the terms of the reference made to it by the competent authority. The term spelled out in the order of reference requires the Tribunal to answer 'as to whether the action of the management of State Bank of India in terminating the services of 10 employees (as per list enclosed) is 18 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] justified? If not, to what relief the workmen are entitled for?' and, therefore, Tribunal was required to address whether in a given factual matrix with the evidence brought on record the termination of employment of workmen could be said to be retrenchment or termination of the services as a result of non-renewal of the contract, as provided for under Section 2(oo) and 2(bb) in the definition clause of the Industrial Disputes Act and to answer the same, it was further required to evaluate and assess the concept of continuous service, as defined under Section 25-B particularly 25-B (2) (a) (ii) before applying Section 25-F of the Industrial Disputes Act to treat the termination of employment as illegal retrenchment for non-compliance of Section 25-F and at the same time before addressing on the contention of Management that the termination of employment in fact was non-renewal of contract of employment, as provided for under Section 2 (bb) of the Act, the Tribunal was required to look into the material placed on record by the Management in support of the aforesaid assertions. The Tribunal has failed to do so. The Tribunal having ignored all these aspects was mainly impressed by the number of days shown against each workmen in the third coloumn dealing with consolidated wages in the chart prepared by the Management and printed in the written statement as well as in the examination-in- chief of the solitary witness without taking into consideration the documentary evidence brought on record by the parties and 19 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] ignoring the explanation offered by the petitioner/management as regards meaning to 'consolidated wages'. Further, the Tribunal in its enthusiasm has resorted to selective discrimination choosing four out of nine workmen to grant the relief of reinstatement. Therefore, in view of the entirety of facts and circumstances of the case, this Court is of the view that it is a fit case to remand the case to the Tribunal to address upon the claim of either party with due advertence to the oral and documentary evidence brought on record bearing in mind the provisions as contained in Sections 2(oo), 2(bb), 25-B and 25-F of the Industrial Disputes Act before answering on the terms of the reference as contained in the order of reference on the basis of evidence already brought on record by both parties. Accordingly, setting aside the impugned award, matter is remanded back to the Tribunal. Further the Tribunal shall be well advised to pass the award within two months from the date of production of certified copy of this order. Parties are directed to appear before the Tribunal on 24th November, 2014.
With the aforesaid directions, Writ Petition is partly allowed and disposed of.
(Rohit Arya) Judge Arun* 20 Writ Petition No.7931/2012 [State Bank of India Vs. SBI Workmen Union] HIGH COURT OF MADHYA PRADESH, JABALPUR, BENCH AT GWALIOR WRIT PETITION NO.7931/2012 .........Petitioner: State Bank of India Versus .......Respondent: SBI Workmen Union ORDER post for 31/10/2014 (Rohit Arya) Judge 31/10/2014