Madhya Pradesh High Court
Branch Manager vs Shri Pradeep Kumar Sen on 13 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P.No.3245/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 13th OF FEBRUARY, 2024
MISC. PETITION No. 3245 of 2018
BETWEEN:-
BRANCH MANAGER CENTRAL BANK
OF INDIA TILAK CHOWK VIDISHA
(MADHYA PRADESH) THROUGH
V.RENGAR, BRANCH MANAGER
.....PETITIONER
(BY SHRI ARUN KUMAR PANDEY - ADVOCATE )
AND
SHRI PRADEEP KUMAR SEN S/O
SHRI RAMCHARAN SEN AGED
ABOUT NOT MENTIONED IN THE
AWARD, R/O SARASWATI NAGAR
TALAIYA MOHALLA VIDISHA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SATYAM AGRAWAL - ADVOCATE )
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 227 of Constitution of India has been filed against the award dated 04.07.2017 passed by Presiding Officer, CGIT-cum-Labour Court, Bhopal in Case No.CGIT/LC/R/221/97.
2 M.P.No.3245/20182. The facts necessary for disposal of the present petition in short are that the Government of India, Ministry of Labour, New Delhi by its letter dated 22.07.1997 made a reference on the following issue:-
"Whether the action of the management of Central Bank of India in terminating the services of Shri Pradeep Kumar Sen w.e.f. 3-3-1996 instead of regularizing him is legal and justified? If not, to what relief the said workman is entitled and from what date?"
3. Notices were issued to the parties. The workman submitted his statement of claim. His case was that he was appointed as Peon by the Bank in the month of February, 1992. He worked up to 03.03.1996 when his services were terminated without assigning any reasons. He had already completed more than 240 days of continuous service during each of the year. His services were terminated in violation of section 25 N, F, G of Industrial Disputes Act, which amounts to unfair labour practice. The action of management is in violation of principles of natural justice. Accordingly, he prayed for his reinstatement with back wages.
4. The petitioner filed its written statement thereby refuting the claim of the workman. It was denied that workman was appointed as Peon in February, 1992. It was denied that he had completed 240 days of continuous service in a calendar year. According to the petitioner, workman was working in the Canteen. He used to prepare and serve tea for employees in the Bank. During the leave period of regular Peon, he was engaged intermittently. It was denied that the services of first party were terminated on 03.03.1996. The violation of section 25 of the Act was also denied. In the written statement, it 3 M.P.No.3245/2018 was specifically pleaded by the petitioner that the workman had worked for 2 days in 1992, 7 days in 1993, 72 days in 1994, 110 days in 1995 and 31 days in 1996 as full time Peon and for 2 days in 1992, 60 days in 1993, 24 days in 1994 and 60 days in 1995 as part time Safai Karmachari.
5. Both the parties filed their affidavits under Order 18 Rule 4 CPC. The CGIT by the impugned order has held that the workman has successfully proved that he had worked for more than 240 days in a calendar year and accordingly his termination of services without complying the provisions of section 25 of the Act was held to be bad. As a result thereof, the petitioner was directed to reinstate the workman with 25% backwages.
6. Challenging the award passed by the CG IT, it is submitted by counsel for petitioner that since the workman has failed to prove that he had worked for more than 240 days in a calendar year, therefore, the CGIT committed a material illegality by directing the petitioner to reinstate him.
7. Per contra, the petition is vehemently opposed by counsel for workman.
8. Heard the learned counsel for the parties.
9. Although the petitioner in its written statement had given the details of days on which the workman had worked as a Full time Peon and a Part time Safai Karmachari in respective years, but in an affidavit filed by the petitioner, which is dated 05.05.2006 the petitioner had specifically mentioned that the attendance register as well as the cash book from the month of February, 1992 to March, 1996 have been weeded out.
4 M.P.No.3245/201810. This Court was unable to understand the aforesaid stand taken by the petitioner. If the record was already weeded out prior to filing of written statement, then on what basis the petitioner had claimed that the workman had worked for few days in respective years as Full time Peon or as Part time Safai Karmachari.
11. Faced with such a situation, counsel for petitioner submitted that the record must have been weeded out after filing of written statement.
12. Accordingly, the counsel for petitioner was directed to point out the rules, which permit the destruction of record of the cases, which are pending consideration before the Court or Tribunal.
13. Counsel for petitioner was unable to point out any rule that even the record of subjudice matter can be destroyed by the petitioner.
14. It appears that the workmen had filed an application before the CGIT for a direction to the petitioner to produce the document, which is evident from ordersheet dated 01.03.2017.
15. On 07.11.2007 following order was passed :-
"Case is called out at camp court, Bhopal. The w/m is present in person. Shri Anil Kumar Dubey Advocate is present for the mgt.
Application No. 8 on behalf of the w/m for directing the mgt. to produce attendance register concerning to the w/m from Feb 92 to March 96, Wages Register etc. I have heard the parties and perused the facts on record. The counsel for the mgt. submitted that the mgt. has not to file written reply. His contention is that the w/m was never in the employment of the mgt. and, therefore, there 5 M.P.No.3245/2018 arises no question of maintaining attendance register, wages register etc. in respect of 10/m. Let responsible officer of the bank to file affidavit to the above effect that the w/m was never in the employment of the mgt. It be done by 6.2.08 at camp court Bhopal."
16. As per the ordersheet dated 07.05.2008, the affidavit on behalf of the Management was filed and ultimately on 25.08.2008, following order was passed :-
"Case is called out at camp court, Bhopal. Shri Mahesh Sharma, Advocate for w/m and Shri Anil Dubey, Advocate for mgt. are present. Paper No. 8 and 9- application by w/m for production of payment register, attendance register and Cash Book. Against the above application affidavit of Shri Ambaram Anjana, Manager of the mgt. has been filed.
Heard and perused the record. It has been stated that in the affidavit on behalf of the mgt. that attendance register and cash book from the m/o Jan. 92 to March 96 have been weeded out. Regarding the salary register from the m/o Feb 92 to March 96 it has been stated that on the perusal of the register it came to light that the w/m's name does not find place in the said register. It is also stated therein that the said register is very bulky and its binding has become very loose and therefore it is not possible to bring the said register before this tribunal, Under the circumstances the mgt. is directed to provide the said register in their office for being inspected by the w/m or his representative as already stated above rest of the registers have been weeded out therefore no question of their production arises. The application No. 8 is disposed of. Accordingly fix 17-11-2008 for evidence of w/m camp court, Bhopal."6 M.P.No.3245/2018
17. Thus, it is clear that the petitioner had either deliberately weeded out the record of subjudice matter or deliberately did not place on record in spite of the application filed by the workman.
18. Under these circumstances, the CGIT was left with no other option but to draw an adverse inference against the petitioner. Furthermore, it is clear from the ordersheet that later on the petitioner was proceeded ex parte. Thus, neither the petitioner cross- examined the witness of the workman nor kept his witnesses present for cross-examination.
19. Under these circumstances, this Court is of considered opinion that the CGIT did not commit any mistake by drawing an adverse inference against the petitioner that the Workman had worked for more than 240 days in a calendar year and thus, his termination of services was rightly held to be in violation of section 25 of Industrial Disputes Act.
20. Now the only question for consideration is as to whether the CGIT should have directed for reinstatement of workman with 25% backwages or should have awarded compensation in lieu of reinstatement ?
21. According to the workman, he was employed on 03.02.1992 and he has worked up to 03.03.1996. The workman raised the dispute and a reference was made by the Government of India by order dated 22.07.1997. The impugned award was passed on 04.07.2017. It is really shocking that CGIT took 20 long years to decide the dispute and now we are in the year 2024 that means 27 long years have passed after the termination of service of workman.
7 M.P.No.3245/2018The workman had worked only for 4 years and he is not in service from 03.03.1996.
22. The Supreme Court in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal, reported in (2014) 7 SCC 177 has held as under:-
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious."
23. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganpatrao Bobde and others reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.
24. The Supreme Court in the case of Hari Nandan Prasad and another Vs. Employer I/R to Management of Food Corporation of India and another, reported in (2014) 7 SCC 190 has held as under:-
8 M.P.No.3245/2018''19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement:
(BSNL case, SCC pp. 187-88, paras 29-30) "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4) '2. Should an order of reinstatement automatically follow in a case where the engagement of a daily-wager has been brought to an end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")?
The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v.
Uday Narain Pandey, Uttaranchal 9 M.P.No.3245/2018 Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows: (Jagbir Singh case, SCC pp.
330 & 335, paras 7 & 14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
***
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed.
The award of reinstatement with full back wages in a case where the workman has completed 240 days 10 M.P.No.3245/2018 of work in a year preceding the date of termination, particularly, daily-wagers has not been found to be proper by this Court and instead compensation has been awarded.
This Court has distinguished between a daily-wager who does not hold a post and a permanent employee."
4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated:
(SCC p. 777, para 11)
11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily-
wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.'"
****
21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement...........''
25. The Supreme Court in the case of O.P.Bhandari Vs. Indian Tourism Development Corporation Limited and others reported in (1986) 4 SCC 337 has held as under :-
"6. Time is now ripe to turn to the next question as to whether it is obligatory to direct reinstatement when the concerned 11 M.P.No.3245/2018 regulation is found to be void. In the sphere of employer-employee relations in public sector undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. No doubt in regard to "blue collar" workmen and "white collar"
employees other than those belonging to the managerial or similar high level cadre, reinstatement would be a rule, and compensation in lieu thereof a rare exception. Insofar as the high level managerial cadre is concerned, the matter deserves to be viewed from an altogether different perspective -- a larger perspective which must take into account the demands of National Interest and the resultant compulsion to ensure the success of the public sector in its competitive co-existence with the private sector. The public sector can never fulfil its life aim or successfully vie with the private sector if it is not managed by capable and efficient personnel with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the "policy-makers" of such undertakings. Then and then only can the public sector undertaking achieve the goals of (1) maximum production for the benefit of the community, (2) social justice for workers, consumers and the people, and (3) reasonable return on the public funds invested in the undertaking.
7. It is in public interest that such undertakings or their Boards of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bona fide 12 M.P.No.3245/2018 manner unable to function harmoniously as a team working arm-in-arm with success in the aforesaid three-dimensional sense as their common goal. These factors have to be taken into account by the court at the time of passing the consequential order, for the court has full discretion in the matter of granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the court."
26. Under these circumstances where the workman had worked only for 4 years as a Peon and is not in service from the year 1996 and his termination was declared illegal only on the ground of non- compliance of provisions of Section 25(f) of Industrial Disputes Act, this Court is of considered opinion that CGIT committed a material illegality by directing the petitioner to reinstate the respondent/workman.
27. Under the facts and circumstances of the case, this Court is of considered opinion that the CGIT should have awarded the compensation in lieu of reinstatement.
28. Accordingly, the award dated 04.07.2017 passed by Presiding Officer, CGIT-cum-Labour Court, Bhopal in Case No.CGIT/LC/R/221/97 is affirmed, so far as the findings recorded by it with regard to illegal termination of workman but the direction to reinstate the workman with 25% backwages is hereby set aside. It is directed that the workman shall be entitled for compensation of Rs.50,000/- in lieu of reinstatement.
13 M.P.No.3245/201829. Let the compensation be paid to the workman within a period of 2 months from today, failing which it shall carry the interest @6% per annum.
30. With aforesaid observations, the petition is finally disposed of.
(G.S.AHLUWALIA) JUDGE TG/-
TRUPTI GUNJAL 2024.02.21 10:41:13 +05'30'