Allahabad High Court
Hori Lal vs Presiding Officer Central ... on 20 April, 2023
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH [R E S E R V E D] Court No. - 5 Case :- WRIT - A No. - 4607 of 2000 Petitioner :- Hori Lal Respondent :- Presiding Officer Central Govt.Industrial Tribunal Cum L.C. Counsel for Petitioner :- Shesh Verma,Ashok Kr. Shukla,Pramendra Kumar Singh Counsel for Respondent :- N.K.Seth,Anurag Srivastava,Mahesh Chandra Hon'ble Irshad Ali,J.
1. Heard Sri Pramendra Kumar Singh, learned counsel for the petitioners and Sri Anurag Srivastava, learned counsel for the respondents.
2. By means of present writ petition, the petitioners have prayed for issuance of a writ, order or direction in the nature of mandamus commanding the respondent Nos.2 to 5 to treat the petitioners to be re-instated in service on the post of Messenger / Waterboy from the date of their initial appointment and pay service benefits like seniority, promotion and other allowances as per service rules and to direct the respondents to pay equal pay to the petitioners as the other employees of the Banks are getting on the said post with a further prayer to issue a writ, order or direction modifying the award dated 26.05.1997 passed by respondent No.1 directing respondent Nos.2 to 5 to pay back wages and other benefits as per service rules applicable to the petitioners.
3. Brief facts giving rise to the present writ petition are as under:
Sr. No. Relevant Facts of the Case a.
Petitioner No.1, namely, Hori Lal was appointed on temporary basis on the post of Messenger in May, 1972 in State Bank of India, Swaroop Nagar Branch, Kanpur. He worked on the said post till 29.08.1978 and his service was terminated vide order dated 30.08.1978.
b.
Petitioner No.2, namely, Sundar Lal worked on the post of Messenger at Main Branch of State Bank of India at Kanpur w.e.f. 14.07.1975 to 05.01.1978 and for five days in November, 1978 i.e. for a period of 370 days. His service was terminated on 17.11.1978.
c.
Petitioner No.3, namely, Hari Shankar worked on the post of Messenger /Waterboy in State Bank of India from April, 1974 to August, 1978 for a period of 721 days. His service was terminated on 16.08.1978.
d.
Petitioner No.4, namely, Bramha Prakash worked on the post of Messenger in State Bank of India, Mahatma Gandhi Marg, Kanpur w.e.f. 09.03.1972 to 11.11.1976 i.e. for a period of 446 days. His service was terminated on 16.11.1978.
e.
The petitioners are workmen as defined under Section 2(s) of Industrial Disputes Act, 1947 and they are alleging that their services have been terminated in violation of provisions of Section 25-F, 25-G & 25-H of Industrial Disputes Act, 1947 and against the provisions of Bank Award / Bipartite Settlement.
f.
It is alleged that juniors to the petitioners were retained in service and the petitioners were illegally terminated and after termination of their services, fresh candidates were appointed by the concerned banks on their place.
g.
The Central Government, Ministry of Labour vide notification No.L-12012/167/79-D(II)(A) dated 02.07.1984 (I.D. No.57/84) referred the dispute for adjudication to Central Government Industrial Disputes cum Labour Court, Kanpur on the point that, "whether the action of the management of State Bank of India, Kanpur in terminating the services of Sri Hori Lal, Sundar Lal, Hari Shankar and Bramha Prakash w.e.f. 30.08.1978, 17.11.1978, 16.08.1978 & 16.11.1978, respectively, was justified in view of provisions of Section 25-F, 25-G & 25-H of Industrial Disputes Act, 1947 and if not, then to what relief they are entitled ?"
h.
The aforesaid dispute was registered as reference No.L-12012/167/79-D III(A) dated 02.07.1984 (Industrial Dispute No.57 of 54; Hori Lal and others Vs. Management of State Bank of India).
i.
The Presiding Officer, Central Government Industrial Disputes Tribunal cum Labour Court, Kanpur decided the said dispute vide award dated 18.03.1986 and it was held that the action of the management of the State Bank of India, Kanpur in terminating the services of the petitioners was not justified in view of Section 25-G&H of Industrial Disputes Act, 1947 as well as the same is violative of para 522(4) of Shashtri Award and it was held that the petitioners are entitled to the reinstated in service with full back wages.
j.
Against the award dated 18.03.1986, the Regional Manager (I), State Bank of India, Kanpur preferred Civil Misc. Writ Petition No.12816 of 1986, which was connected with another Civil Misc. Writ Petition No.12815 of 1986 (Management of State Bank of India Vs. Swroop Narain Pandey and another) before this Court. Both the writ petitions were finally decided by means of judgment and order dated 24.05.1996, whereby the matter was remanded back to Central Government Industrial Disputes Tribunal cum Labour Court, Kanpur to decide the dispute afresh on the basis of observations made in the order by providing opportunity to both the parties for adducing fresh evidence and the award dated 18.03.1986 was set aside.
k.
Thereafter, the matter was decided afresh by the Central Government Industrial Disputes Tribunal cum Labour Court, Kanpur vide award dated 26.05.1997 which was published by Ministry of Labour, Government of India on 19.06.1997 in Gazzet No.Bhag-1, Khand-3, Up Khand (II) on 21.06.1997. In the said award, it has been held that the petitioners are entitled for reinstatement in the capacity on which they were working on their respective posts but they will not be entitled for back wages. However, instead of reinstating the petitioners in service, fresh appointment letters were issued to the petitioners.
l.
It is alleged that the Presiding Officer, Central Government Industrial Disputes Tribunal Cum Labour Court, Kanpur erred in law in not granting back wages to the petitioners in spite of the fact that the tribunal found the termination/retrenchment of the petitioners to be illegal and against the provisions of Shashtri Award as well as provisions of Industrial Disputes Act, 1947.
m.
Being aggrieved by award dated 26.05.1997 and fresh appointment, which they have joined, the present writ petition has been preferred before this Court.
4. Submission of learned counsel for the petitioners is that once the Labour Court has held that the petitioners have wrongly been retrenched from service and they are entitled for reinstatement in their previous capacity, there is no justification on the part of the respondents in offering them fresh appointment.
5. He next submitted that due to financial crunch the petitioners have joined the service as fresh appointees to meet out their daily expenses, however, they are entitled for reinstatement in service and to get full back wages as other similarly situated employees are getting.
6. He further submitted that retrenchment of the petitioners is in clear violation of Section 25-G of Industrial Disputes Act as well as Section 522(4) of the Shastri Award, therefore, they are fully entitled to be reinstated to their respective posts.
7. He next submitted that juniors to the petitioners have not been retrenched from service, however, great injustice has been caused to them by terminating their services, which is in clear violation of Article 14 of the Constitution of India.
8. He further submitted that in terminating the services of the petitioners, mandatory provision of 15 day's notices was not complied with, therefore, the petitioners are entitled to all consequential benefits.
9. He next submitted that once learned Labour Court found termination / retrenchment of the petitioners to be illegal and against the provision contained under relevant rules and award, they are entitled to get reinstatement in service with retrospective effect.
10. On the basis of supplementary affidavit, learned counsel for the petitioner submitted that in pursuance to award dated 26.05.1997, petitioner No.1 has been appointed as Temporary Messenger vide letter of Branch Manager, State Bank of India, Gwaltoli, Kanpur dated 26.02.1998. Petitioner No.2 has been kept on daily wages of Rs.51/- per day for the actual days of performance. Petitioner No.3 was appointed as temporary Messenger cum Water Boy and petitioner No.4 is also being paid salary and allowances at the initial stage of pre-revised scale of Rs.116/- p.m. In support of his submissions, he placed reliance upon the judgment in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others; (2013) 10 SCC 324.
10. On the other hand, learned counsel for the respondents on the basis of counter and supplementary counter affidavits submitted that petitioners were engaged on daily wages basis for different periods. It has also been submitted that they were not engaged continuously but intermittently as and when need arose.
11. He next submitted that there was no need to pass any termination order nor the petitioners were entitled to be issued notice or pay in lieu of their retrenchment. It has also been submitted that petitioners were appointed on daily wage basis and not on regular basis, therefore, the provisions of Section 25-H of Industrial Disputes Act, 1947 have not been violated.
12. It has further been submitted that in the writ petition filed by respondent - State Bank of India the award was quashed and matter was remanded to respondent No.1 for deciding the reference afresh. In the said judgment, direction was to the effect that findings with regard to applicability of Section 25-G of Act of 1947 be given and the findings were given in favour of respondent - Bank, however, respondent No.1 exceeded in its jurisdiction to hold regarding breach of provisions of Section 25-G of Act of 1947.
13. He next submitted that the petitioners were to be engaged on the wages which were last drawn by them but they have been given better wages. He submitted that there is no illegality in not awarding back wages to the petitioners as they were not regularly appointed employees and as such, they cannot claim the benefit available to a regularly appointed employee. He submitted that the petitioners cannot claim pay equal to that of the incumbents regularly appointed by the respondent - Bank.
14. On the said basis, he submitted that the writ petition is misconceived and is liable to be dismissed. In support of his submissions, he placed reliance upon following judgments:
a) Jaipur Development Authority Vs. Ram Sahai and ors.; Civil Appeal No.4626 of 2006 decided on 31.10.2006.
b) State of Haryana Vs. Dilbagh Singh; Civil Appeal No.3443 of 2006 decided on 18.10.2006.
c) State of Rajasthan Vs. Sarjeet Singh and ors.; Civil Appeal No.4551 of 2006 decided on 19.10.2006.
15. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
16. To resolve the controversy involved in the matter, the judgments relied upon by learned counsel for the parties are being quoted below:
- Judgment relied upon by learned counsel for the petitioner:
- Deepali Gundu Surwase (Supra):
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
23. A somewhat similar issue was considered by a three Judge Bench in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. (supra) in the context of termination of services of 56 employees by way of retrenchment due to alleged non-availability of the raw material necessary for utilization of full installed capacity by the petitioner. The dispute raised by the employees resulted in award of reinstatement with full back wages. This Court examined the issue at length and held:
"9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. 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 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. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.
11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular." (emphasis supplied) After enunciating the above-noted principles, this Court took cognizance of the appellant's plea that the company is suffering loss and, therefore, the workmen should make some sacrifice and modified the award of full back wages by directing that the workmen shall be entitled to 75 % of the back wages."
- Judgments relied upon by learned counsel for the respondents:
- a) Jaipur Development Authority (Supra):
"13. Yet again recently in Regional Manager, SBI v. Rakesh Kumar Tewari MANU/SC/0044/2006: (2006) ILLJ748SC, this Court followed Central Bank of India (supra), stating :
"Section 25G provides for the procedure for retrenchment of a workman. The respondents have correctly submitted that the provisions of Sections 25G and 25H of the Act do not require that the workman should have been in continuous employment within the meaning of Section 25B before he could said to have been retrenched."
14. We would, therefore, proceed on the basis that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an Award of re-instatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. Respondent had not regularly served Appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be sub-served if instead and in place of re- instatement of his services, a sum of Rs.75,000/- is awarded to Respondent by way of compensation as has been done by this Court in a number of its judgments. [See State of Rajasthan & Anr. vs. Ghyan Chand (Civil Appeal No.3214 of 2006, disposed of on 28th July, 2006.] This appeal is allowed in part and to the extent mentioned hereinbefore. There shall be no order as to costs."
- b) State of Haryana (Supra):
"2. The respondent was serving as a Beldar in PWD ( B & R) and his services were terminated on 25.12.1999. A dispute under the Industrial Disputes Act, 1947 (hereinafter to be referred to as the 'Act') was raised and the matter was referred to Labour Court and the Labour Court after hearing both the parties found that there is a breach of Sections 25-G and 25-H of the Act. It was held that person junior to the respondent is still working whereas the services of the respondent had been terminated. Therefore, the Labour Court allowed the claim of the respondent and granted reinstatement with continuity of service with 50% back wages from the date of demand notice i.e. from 1.2.2000. Aggrieved against that order a writ petition was filed before the High Court and the High Court affirmed the order of the Labour Court. Hence, the present appeal.
3. We have heard learned counsel for the parties. Learned counsel for the appellant has failed to substantiate that no person junior to the respondent had been retained in the Department. It is a clear finding of the Tribunal that a person like Krishan s/o Dharam Singh who is junior to the respondent is still working with the Management whereas the services of the respondent had been terminated. It is also alleged that another person named Mahabir who is also junior to the respondent is still working with the Management. Therefore, the Tribunal has found violation of Sections 25-G & 25-H of the Act. This finding of fact has not been controverted by the management and there is no reason to take a different view from the view taken by the Tribunal which was affirmed by the High Court. Hence, we find no merit in this appeal and the same is accordingly dismissed. The respondent shall be reinstated but looking into the peculiar facts and circumstances of this case, he will not be entitled to any back wages. The appellant shall issue order of appointment of the respondent within one month from the date of receipt of this order. There will be no order as to costs."
- c) State of Rajasthan (Supra):
"13. In terminating the services of Respondent No. 1, we would assume that violation of Sections 25-G or 25-H occurred (although there is no factual basis therefor), but in any event, the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages. We, however, although ordinarily would have set aside the impugned award and consequently the judgment of the High Court; in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct the State to pay a sum of Rs. 30,000/- to Respondent No. 1. Such payment should be made within eight weeks from date failing which the same shall carry interest at the rate of 9% per annum. The appeal is allowed with the aforesaid directions. The parties shall pay and bear their own costs."
17. In the case laws referred hereinabove, in the case of Deepali Gundu Surwase (Supra), it has been held that the very idea of restoring an employee to the position, which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. In the judgment, it has further been mentioned that denial of back wages to an employee, who has suffered due to an illegal act of the employer, would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
18. However, in the case of Jaipur Development Authority (Supra), it has been held that Sections 25G and 25H of the Act do not require that the workman should have been in continuous employment within the meaning of Section 25B before he could said to have been retrenched. The Court has also held that the respondent of that case had not regularly served the appellant and the job was not of perennial nature. It has also been held that on the basis that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, would not mean that the Labour Court should have passed an Award of re-instatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it.
19. In the case of State of Haryana (Supra), the appeal has been dismissed and respondents were directed to be reinstated but they will not be entitled to any back wages. In the case of State of Rajasthan (Supra), the Court has held that in terminating the services of Respondent No. 1, violation of Sections 25-G or 25-H occurred (although there is no factual basis therefor), but in any event, the same would not mean that the Labour Court should have automatically passed an award of reinstatement in service with back wages and the Court has directed to pay a certain amount to the respondent.
20. In the case in hand, the petitioners were appointed on temporary basis on the post of messenger / waterboy and their services were illegally terminated against which a reference was made before learned Central Government Industrial Disputes Tribunal cum Labour Court, whereby vide award dated 18.03.1986 the said disputed was decided and it was held that the petitioners are entitled to be reinstated in service with back wages. Against the said award, the respondents filed writ petition before this Court, which was finally decided vide judgment and order dated 24.05.1996, whereby the matter was remanded back to learned Labour Court to decide the dispute afresh and the award dated 18.03.1986 was set aside. In pursuance thereof, the matter was decided afresh by learned Labour Court and vide award dated 26.05.1997, it was held that the petitioners are entitled for reinstatement in service on their respective posts but they will not be entitled for back wages. However, instead of reinstatement, fresh appointment letters were issued to the petitioners.
21. In the opinion of this Court, once the labour court has held the petitioners to be wrongly retrenched from service and they are entitled for reinstatement, the respondents have erred in law in offering fresh appointment to the petitioners.
22. In the award dated 26.05.1997, it was held that the petitioners are entitled for reinstatement in service, however, back wages were denied to the petitioners to be paid.
23. In view of settled proposition of law laid down in the case of Deepali Gundu Surwase (Supra), the petitioners are entitled for reinstatement in service on their respective posts in the same position in which they would have been, however, they will not be entitled to back wages in view of judgments relied upon by learned counsel for the respondent.
24. Accordingly, the writ petition is allowed in part.
25. The respondents are directed to treat the petitioners to be re-instated in service on the post of Messenger / Waterboy from the date of their initial appointment and to pay them salary within a period of six weeks from the date of production of a certified copy of this order. The petitioners are entitled for compensation amounting to Rupees Three Lacs, each, which shall also be paid to them along with consequential benefits within a period of four weeks, thereafter.
26. No order as to costs.
Order Date :- 20.04.2023 Adarsh K Singh