Madhya Pradesh High Court
State Bank Of India vs Ram Narayan Pathak on 23 July, 2018
1 WP. No.15964/14 & connected
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. WP. No. 15964/14
Parties Name State Bank of India
Vs.
Mukesh Kumar
&
WP. No.16701/14
State Bank of India
Vs.
Raj Kumar Sen
&
WP. No.16703/14
State Bank of India
Vs.
Mukesh Kumar Barman
&
WP. No.16704/14
State Bank of India
Vs.
Ravi Yadav
&
WP. No.16707/14
State Bank of India
Vs.
Ravindra Yadav
&
WP. No.16775/14
State Bank of India
Vs.
Sunil Kumar Nahar
&
2 WP. No.15964/14 & connected
WP. No.16777/14
State Bank of India
Vs.
Ram Narayan Pathak
&
WP. No.16779/14
State Bank of India
Vs.
Umesh Kumar
Date of Judgment 23/07/2018
Bench Constituted Single Bench.
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for parties For the petitioner: Shri Ashish Shroti,
Advocate
For the workmen: Shri Sanjay Verma,
Advocate
Law laid down -
Significant paragraph -
numbers
ORDER
(23/07/2018) These petitions take exception to the award of Central Government Industrial Tribunal-cum-Labour Court ('Tribunal') dated 24-02-2014 whereby the Tribunal declared the termination of respondents-workmen as illegal and directed the employer to reinstate them with 50% backwages.
2. The contention of the employer is that the workmen were daily rated employees working in State Bank of Indore. The union of the workmen raised an industrial dispute seeking their regularization/absorption in the State Bank of Indore. The said 3 WP. No.15964/14 & connected application is placed on record before this Court with I.A. No.2393/18.
3. Shri Ashish Shroti, learned counsel for the petitioner by taking this Court to the said application for initiating conciliation proceeding under the Industrial Disputes Act, 1947 (I.D. Act) dated 08-07-2010, contended that in the said conciliation application, the union has prayed for absorption/regularization of certain members. The termination of present respondents was not the subject matter of the said application. In fact, the workmen were discontinued on different dates which are mentioned as under:-
S. Case No. CGIT Name Worked Worked No. of
No. No. from upto Days in
last year
1 WP. 09/12 Umesh Saini 20-01-99 14-08-10 212
No.16779/14
2 WP. 10/12 Mukesh Sharma 03-03-99 23-08-10 262
No.15964/14
3 WP. 11/12 Raj Kumar Sen 21-06-98 23-08-10 252
No.16701/14
4 WP. 12/12 Mukesh Barman 15-03-98 28-07-10 322
No.16703/14
5 WP. 13/12 Ram Narayan 01-04-99 31-08-10 293
No.16777/14 Pathak
6 WP. 14/12 Ravindra Yadav 26-02-99 21-08-10 281
No.16707/14
7 WP. 16/12 Sunil Nagar 04-07-98 21-08-10 266
No.16775/14
8 WP. 1/13 Ravi Yadav 03-02-00 21-08-10 260
No.16704/14
4. The attempt of Shri Shroti, learned counsel for the petitioner is to assail the award of the Tribunal on the question of maintainability itself. The admitted facts between the parties are that the workmen filed an application under Section 2-A(2) of the 4 WP. No.15964/14 & connected I.D. Act directly before the Industrial Tribunal. The management raised objection about the maintainability of the said application on the ground that statutory mandate ingrained in Sub-section (2) of Section 2-A are not satisfied. For the present dispute which is relating to termination of workmen, no conciliation proceedings were filed and, therefore, a dispute directly filed under Section 2- A (ii) before the Tribunal was not entertainable. Shri Shroti submits that Tribunal has erred in deciding this preliminary objection against the employer by order dated 26-02-2013. By taking this Court to the said order, Shri Shroti submits that a conjoint reading of conciliation application of the dispute under Section 2-A makes it clear that in absence of preferring an application for conciliation for the same dispute the dispute was not entertainable directly by the Tribunal. By placing reliance on Section 33-A of I.D. Act, Shri Shroti contended that in the event the workmen had any grievance during conciliation proceeding, the application under Section 33-A could have been filed before the Conciliation Officer itself. Thus, Section 33-A cannot be a reason to entertain a direct dispute by the Tribunal. He submits that order dated 20-06-2013 is bad in law. Since Tribunal has erred in entertaining a dispute directly, the award on merits is also liable to be interfered with.
5. The next contention of Shri Shroti is against the impugned award. Shri Shroti submits that the Tribunal framed Issue No.1 i.e. (I) whether the action of second party No.2 Bank in not continuing the services of workmen in Bank after merger of State Bank of Indore as per notification dated 28-07-2010 is illegal and justified ? This issue was answered in affirmative. Thus, it is clear that S.B.I. was under no obligation to continue the services of 5 WP. No.15964/14 & connected workmen after the merger notification dated 28-07-2010. The workmen have not challenged this finding or offending portion of the award and, therefore, they have no right whatsoever for reinstatement or continuity in service with State Bank of India.
6. Shri Shroti placed reliance on the merger notification dated 28-07-2010 and contended that notification came into force on 30th day from the date of publication in the official gazette. The gazette was published on 28-07-2010 and notification came into being on 28-08-2010. Before merger, the workmen were discontinued on various dates mentioned hereinabove. Thus, State Bank of India is under no obligation to continue them in employment.
7. The next contention of Shri Shroti is that the Tribunal has interfered on violation of Section 25G & H of the Industrial Disputes Act. The Tribunal applied the principle of 'first come last go' whereas there was no pleadings or evidence in support of the said contention of the workmen. Thus, interference by the Tribunal on the said ground is wholly unwarranted. Shri Shroti placed reliance on 2006 (8) SCC 508 (State of Rajasthan vs. Sarjeet Singh and another) to bolster his contention that on alleged violation of Section 25G & H also reinstatement is not automatic and in such cases the court can grant compensation in lieu of reinstatement. Reliance is placed on 2006 (11) SCC 684 (Jaipur Development Authority vs. Ramsahai and another) for the said proposition. Next reliance is placed on 2006 (2) SCC 711 (State of MP and others vs. Arjunlal Rajak) wherein it is held that once a department or project is abolished, the adequate relief is to grant compensation and not the reinstatement. Same 6 WP. No.15964/14 & connected principle is applied by Supreme Court in case of closure of a unit in 2007 (7) SCC 366 (District Red Cross Society vs. Babita Arora and others). Reliance is made to 2006 (1) SCC 530 (Regional Manager, SBI vs. Rakesh Kumar Tewari) to contend that in order to apply Section 25G and 25H of the ID Act, the burden was on the workmen to make out a case. In absence of adequate pleadings, evidence and foundation, no award for violation of Section 25G & H can sustain judicial scrutiny.
8. Shri Shroti submits that one workman Shri Umesh Saini has admittedly worked for 212 days in preceding 12 months. The Tribunal has erred in counting Saturdays and Sundays whereas those Saturdays and Sundays were not paid holidays. Reliance is also placed on AIR 1986 SC 132 (H.D. Singh vs. Reserve Bank of India and others). On more than one occasion, Shri Shroti contended that in the present case, the Tribunal at best could have granted adequate compensation to the workmen which was granted in certain connected matters but Tribunal erred in granting reinstatement with 50% back wages.
9. Per conta, Shri Sanjay Verma, learned counsel for the workmen supported the impugned award. He submits that the conciliation application is already on record and the dispute raised by the workmen is arising out of the grievance of the same workmen. Thus, necessary requirement of sub-section (2) of Section 2A of the ID Act are satisfied and it cannot be said that dispute was not maintainable. Even other wise, Shri Verma contends that as per the scheme and object of Section 33A, the dispute was maintainable before the Tribunal.
7 WP. No.15964/14 & connected10. Further more, it is urged that a plain reading of impugned award shows that by direction No.(4), the Tribunal has granted compensation to certain workmen. The said direction is part and parcel of same impugned award. The employer has complied with the direction contend in para 29(4) and granted them compensation. In other words, employer did not challenge the award in cases of grant of compensation. Thus, the employer has relinquished his right to challenge the same award in cases of present workman.
11. Shri Verma submits that as per the admitted facts the workmen have completed 240 days in a calendar year before their termination. Thus, their termination without following the mandate of Section 25F makes the termination void ab initio as per the Division Bench judgment of this court reported in 2010 (3) MPHT 243. In that case, the workmen, for all practical purposes, would have continued and therefore present employer cannot plead that they have no liability to continue them in employment.
12. Shri Verma during the course of arguments placed reliance on Rule 77 of Industrial Dispute (Central) Rules and urged that it was the duty of the employer to prepare a seniority list, display it in the Notice Board before termination. Since management has not produced this seniority list, the workmen were not in a position to establish whether Section 25G & H were attracted. The management witness during cross- examination admitted that no such seniority list was prepared/published. Section 25FF of the ID Act and Section 35(8) of the State Bank of India Act, 1955 are relied upon to 8 WP. No.15964/14 & connected contend that the termination without compensation cannot be upheld in the teeth of these provisions also. In the event of their continuation with the present employer, no compensation was required to be paid. Otherwise also, there is no justification in not continuing and terminating the present workmen. Shri Verma also placed reliance on AIR 1986 SC 132 and argued that for the purpose of counting days as per Section 25B of the ID Act, the Saturdays and Sundays are required to be taken into account.
13. No other point is pressed by the learned counsel for the parties.
14. I have heard the learned counsel for the parties and perused the record.
15. As noticed, the preliminary objection of employer regarding maintainability of dispute before the Tribunal was founded upon the ground that the Tribunal entertained disputes directly without ensuring that requirement of Section 2-A(2) of Industrial Disputes Act are satisfied. This is an admitted fact between the parties that alleged deficiency of not raising industrial dispute by way of conciliation proceedings relating to termination is common in respect of all the workmen whose disputes are adjudicated upon and decided by the Tribunal by impugned common award. This is equally admitted that the employer has implemented the award in relation to those workmen who were given benefit of compensation in lieu of reinstatement. The challenge is made to the award only in respect of the workmen who have been benefited by direction of reinstatement with fifty percent backwages. It is also noteworthy that during the course of argument, Shri Ashish Shroti, learned 9 WP. No.15964/14 & connected counsel for the Management contended that the proper course for the Tribunal was to grant compensation in place of reinstatement and backwages. If this court decides that the dispute raised by workmen directly before the Tribunal without initiation of conciliation proceeding was bad in law, the effect would be that the common award for certain set of workmen will be set aside whereas, admittedly, another set of workmen governed by the same award, have received the benefit of compensation. I do not propose to create such an anomalous situation where despite similar preliminary objection of employer, one set of workmen have enjoyed the fruits of the litigation whereas the other are deprived for the reason that outcome of litigation/ relief in their relation is little different. Thus, I am not inclined to interfere in the impugned award on the ground of preliminary objection raised by the employer. Needless to emphasis that this legal objection raised by the employer will remain open to be decided in appropriate case. Since this Court for the reason stated above has declined to interfere in the award founded upon the preliminary objection, I am not inclined to examine whether subject matter of conciliation application and application preferred under Section 2-A were common. The question of applicability of Section 33- A also pails into insignificance for the same reason. In the factual matrix of this case, interference in the award on the ground of said preliminary objection is declined.
16. So far the workman Shri Umesh Saini is concerned, he has worked for 212 days in the preceding 12 months from his date of termination. However, it is not disputed by the employer that if Saturdays' and Sundays' of preceding 12 months are counted, his working days will be beyond 240 days. In H.D.Singh 10 WP. No.15964/14 & connected (supra), the Apex Court came to hold that for counting 240 days, Saturdays' and Sundays' can be counted. No factual foundation was pointed out to this court during the course of argument by learned counsel for the employer that payments were not made during Saturdays' and Sundays' for the period in question. Thus, I find no reason to interfere in the findings of the Tribunal that in entirety the said workman has worked for more than 240 days.
17. In view of legislative mandate of Section 25-F of Industrial Disputes Act, workmen's termination without giving them retrenchment compensation is bad in law. In view of catena of judgments on this point, it can be safely concluded that termination of respondent/ workman, is bad in law. As per various clauses including clause-5 of the notification dated 28.07.2010, the State Bank of India cannot shirk from its liability to bear the outcome of a litigation which is based on a proceeding or cause of action which might have arisen even before issuance of said notification. Clause-5 of the notification reads as under :-
"5. Any proceeding or cause of actions, suits, decrees, recovery certificates, appeals and all other legal proceedings pending before any court or tribunal or any other authority by or against the Transferor Bank may, as from the effective date, be continued and enforced by or against the Transferee Bank in which the Transferor Bank has vested by virtue of this Order as it might have been enforced by or against the Transferor Bank as if this Order had not been in force and shall cease to be enforceable by or against the Transferor Bank."
(Emphasis supplied)
18. This is equally settled that in all cases where termination is held to be bad in law for violation of Section 25-F of 11 WP. No.15964/14 & connected Industrial Disputes Act, as a thumb rule, it cannot be directed to grant reinstatement and backwages. This depends on the facts and circumstances of a case and also on the nature of employment. The Apex Court in AIR 2011 SCW-6747 (Bharat Sanchar Nigam Ltd. Vs. Man Singh) held that appropriate relief for a terminated daily rated employee is to grant him compensation and not the relief of reinstatement and backwages. The same principle was followed in AIR 2014 SCW-528 (B.S.N.L Vs. Bhurumal). This Court by following the aforesaid ratio decidendi decided W.P.No.14451/2016 (Sports and Youth Welfare Department Vs. Anurudhha Yadav) and W.P.No.718/2016 (Rajkumar Vs. Commissioner) decided on 10.03.2016.
19. The Apex Court in the case of Bhurumal (supra) held that in 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, the 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.
In the same judgment, it was further held that Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated 12 WP. No.15964/14 & connected again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay.
Similar view is taken by Supreme Court in the case of (2013) 5 SCC 136 (Rajasthan Development Corpn. vs. Gitam Singh).
20. In the light of this settled legal position, in my view, reinstatement with 50% backwages could not have been granted to the workmen. I find substance in the argument of Shri Shroti that in the cases of present nature grant of compensation is the proper relief.
21. So far as the argument regarding finding of Tribunal in relation to applicability of Section 25-G and 25-H of I.D. Act are concerned, I find substantial force in the argument of Shri Shroti that whether the workmen were terminated in utter violation of principle of "first come last go" or not, is the question of fact, which should have been pleaded and proved by the workmen. In absence of any pleading and proof, there exists no foundation to attract Section 25-G and 25-H of I.D. Act. The Apex Court in the case of Regional Manager, SBI vs. Rakesh Kumar Tewari (2006) 1 SCC 530 held that "These are all questions of fact in respect of which evidence would have to be led, the onus to prove the first requirement being on the workman and the second and third requirements on the employer. Necessarily a fair opportunity of leading such evidence must be available to both parties. This would in turn entail laying of a foundation for the case in the pleadings. If the plea is not put forward, such an opportunity is denied, quite apart from the principle that no amount of evidence can be looked into unless such a plea is raised. (See Siddik Mahomed Shah v. Saran[AIR 1930 13 WP. No.15964/14 & connected PC 57 (1)] and Bondar Singh v. Nihal Singh [(2003) 4 SCC 161] .
In the case of J.K. Iron and Steel Co. Ltd. v. Iron and Steel Mazdoor Union [(1955) 2 SCR 1315 : AIR 1956 SC 231] the Court noted that even though Industrial Tribunals are not bound by all technicalities of civil courts: (SCR p. 1323) They must nevertheless follow the same general pattern. Now the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ. It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper."
(Emphasis supplied) Even if the management witness has admitted that no seniority list as per Rule 77 is produced, it will not improve the case of workmen for the simple reason that the burden to show that aforesaid principle was violated, was on the shoulders of workmen. Had that burden was discharged, onus could have been shifted on the shoulders of management. In absence of discharging that burden, the violation of Section 25-G and 25-H is not established and hence finding of Tribunal in this regard needs interference.
22. In view of aforesaid analysis, the award of the tribunal to the extent relief of reinstatement with fifty percent backwages was granted, cannot be upheld. The award is set aside with the direction that the workmen shall be entitled to get the benefit of compensation. This court after considering the judgment of Supreme Court in Bhurumal, Tapas Kumar Paul (supra) and a recent judgment in W.P.No.14670/05 ( Asst. General Manager Vs. Jagjivan Lal Patel), directed to grant Rs.3,00,000/- (Rs.Three lacs) as compensation to the workmen.
14 WP. No.15964/14 & connected23. In the case of Bhurumal (supra), the Apex Court awarded Rs.3,00,000/- as compensation to a workman who had rendered two years of service whereas in the present case the duration of services rendered by the respondents are of a much longer period which is evident from the chart reproduced in para 3 of this order. Considering the aforesaid, I deem it proper to direct the petitioner/management to pay Rs.4,00,000/- (Rupees Four Lacs Only) to each of the respondent/workman within 60 days from the date of communication of this order. The impugned award is quashed and modified to the extent indicated above. In lieu of reinstatement and b ackwages, now the each workman shall get Rs.4,00,000/- as compensation.
24. Petitions are partly allowed. No cost.
(Sujoy Paul) Judge mohsin/YS/MKL Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2018.07.23 21:52:56 -07'00'