Allahabad High Court
Sunil Kumar Shukla Son Of Sri Ramesh ... vs Central Govt. Industrial ... on 23 November, 2005
Author: Shishir Kumar
Bench: Shishir Kumar
JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the award-dated 7.8.1998 passed by respondent No. 1, Annexure-3 to the writ petition.
2. The facts arising out of the present writ petition are that the petitioner was appointed in the Head Office of respondent No. 2 at Kshettriya Gramin Bank on 1.9.1986 as typist-cum-clerk at the rate of Rs. 20/- per day on a permanent and regular vacancy but no appointment letter in favour of the petitioner was issued. However, the petitioner had worked till 7.9.1987 and without any order, the services of the petitioner were terminated. It was assured by respondent No. 2 that he would be accommodated. When the petitioner was not given appointment, he raised a dispute before the Labour Court. Before the Conciliation Officer, there was no settlement, as such as required under Section 10, the matter was referred for adjudication. A written statement was filed on behalf of the petitioner to the effect mat the petitioner has completed 240 days in one calendar year, has continuously worked from 1.9.1986 to 7.9.1987 and his services, have been illegally terminate without complying the procedure of retrenchment. A reply was submitted by respondent No. 2 and ii has been stated in the written statement that the petitioner has not worked for 240 days in a calendar year. The petitioner has worked in different spells when necessity arose. It has also been denied that the services of the petitioner have been terminated. The petitioner was engaged on daily wage basis; as such the service regulation of the bank is not applicable in the case of the petitioner. The Labour Court after considering the submissions made on behalf of the parties though has come to the conclusion that termination of the petitioner is bad being in breach of provisions of Section 25M of the Industrial Disputes Act but he will not be entitled for reinstatement and a compensation to the tune of Rs. 10,000/- has been given in lieu of reinstatement. The said award was given by the order-dated 7.9.1998
3. It has been contended on behalf of the petitioner that the Labour Court has not given any finding regarding documents filed on behalf of the employer and employee in support of their pleadings as to how the Court has come to the conclusion that the workman has worked only for 155 days. The Labour Court without disclosing the nature of the said document, the finding of the Labour Court is liable to be set aside The finding recorded by the Labour Court at the petitioner is not entitled to the benefit of Section 25F of the Industrial Disputes Act is against the evidence on record because no notice as required, was given in writing before retrenchment to the petitioner, as such, the finding recorded by the Labour Court is liable to be set aside. It has further been submitted that when the Labour Court has recorded a finding that retrenchment of the petitioner is against the provisions of Section 25H and 25M of the Industrial Disputes Act, no relief other than reinstatement with full back wages should have been awarded by the Labour Court. Further submission made on behalf of the petitioner is that the petitioner was regular employee, as such, the services of the petitioner cannot be terminated or retrenched without following the proper procedure as provided under the law.
4. Reliance has been placed upon a judgment Mohan Lal v. Managemnt of Bharat Electronics Ltd. It has been submitted that in the aforesaid case the workman who was a salesman his services were terminated. The Labour Court held that the termination order did not constitute retrenchment as it appears that the workman was on probation and as such it does not amount to retrenchment within the meaning of Section 2(OO) read with Section 25F of the Industrial Disputes Act. The Supreme Court has allowed the appeal and has held that it amounts 10 retrenchment within the meaning of the Act Another judgment has been relied upon by the Counsel for the petitioner which is reported in 2005 (Vol. 107) F.L.R. Page -182, Union of India v. Presiding Officer, Kanpur and has submitted that the Single Judge of this Court has taken a view that once the order of termination of a workman found not in accordance with law. he will be entitled for reinstatement with full back wages.
5. On the other hand, the respondents submitted that the Government of India has taken a decision on 1.1.1986 that all the appointments of the bank including the clerks is to be conducted by Banking Services Recruitment Board, as such the bank itself has got no authority to make any appointment on the post of clerk/typist except by the Board. The petitioner was engaged only to clear the extra typing work according to the need and exigency. Initially he was engaged from 17.11.1986 to 16.12.1986 for Rs. 20/- per day. Thereafter, the petitioner worked from 27.3.1987 to 13.4.1987, 29.4.1987 to 31.5.1987 1.6.1987 to 30.6.1987, 1.7.1987 to 31.7.1987 and thereafter from 1.8.1987 to 7.8.1987 and 8.8.1987 to 7.9.1987 for Rs. 25/- per day As such the total working of the petitioner comes to 156 days only. The petitioner has falsely staled that he has worked in the bank starting from 1.9.1986 to 7.9.1987 As the petitioner was engaged on daily wage basis as per the need of the bank to clean extra typing work, as such there is no question of termination of the services of that petitioner by the bank. It is wrong to say that any assurance was given to the petitioner. It has also been stated that the application before the Labour Court was highly time barred, as after 1987 the petitioner has not worked and he raised a dispute before the Labour Court in 1990 The finding recorded by the Labour Court is based on evidence and the documentary evidence, which was filed on behalf of the employer, Exts. M-1 to M-22 have been considered and. as the nature of the appointment was not on a regular post, as such, the compensation awarded by the Labour Court was correct
6. I have heard Sri B.P. Singh, learned Counsel for the petitioner and Sri P.N. Khare who appears for the respondent No. 2 and have perused the record. The Labour Court has recorded a finding on the basis of the pleadings of the parties that as the nature of the appointment of the concerned workman was not permanent and from the written statement filed on behalf of the employer, Ext. M-22 which is the attendance register, clearly goes to show that the workman has worked only for 155 days in broken period, therefore, the Labour Court has held that benefit of Section 25F of the Industrial Disputes Act is not applicable to the workman. Though a finding to this effect has been recorded that the petitioner has competed 240 days in a year but inspite of the aforesaid fact, it has been held that the petitioner is not entitled to the benefit of Section 25M of the Industrial Disputes Act and taking into consideration the nature of appointment. the relief of reinstatement was refused and in lieu thereof Rs. 10,000/- have been awarded as compensation. In a recent judgment reported, in 2005 SCC (L & S) 609, Manager, Reserved Bank of India, Bangalore v. S. Mani the Apex Court has taken a view that a temporary workman or a probationer, their services not being permanent in nature, can be dispensed with and it is the discretion of the Labour Court to grant the relief of reinstatement with continuity of service and back wages in every case of dismissal or discharge from service. The power under Section 11A of the Act is discretionary. Para 54 of the said judgment is quoted below:
54. Mr. Phadke, as noticed hereinbefore, has referred to a large number of decision for demonstrating that this Court had directed reinstatement even, if the workmen concerned were daily-wagers or were employed intermittently. No proposition of law was laid down in the aforementioned judgments. The said judgments of this Court, moreover, do not lay down any principle having universal application so that the Tribunals, or far that matter the High Court, or this Court, may feel compelled to direct reinstatement with continuity of service and hack wages The Tribunal has some discretion in this matter, Grant of relief must depend on the fact situation obtaining in a particular case. The industrial, adjudicator cannot be held to he hound to grant some relief only because it, will be lawful to do so.
7. Another case of the Apex Court reported in 2005 SCC (L & S) 154, it has been held that as the daily wager does not hold any post, a daily wager in the absence of any statutory provision would not be entitled for regularization The relevant observation in para 39 is being reproduced below:
39. It is furthermore evident that the persons appointed as daily-wagers held no posts. The appointments, thus, had been made for the purpose of the project which, as indicated hereinbefore, came to an end. The plea of Dr. Dhavan to the effect that the appellants in Civil Appeal No. 337 of 2002 were asked to perform other duties also may not he of much significance having regard to our foregoing findings. However, it has been seen that even services of one of them had been requisitioned only for the project work, The High Court, in our opinion, was right in arriving at the conclusion that the appellants were not entitled to he regularized in service.
8. In view of the aforesaid fact and considering the Apex Court judgment as the nature of the appointment of the petitioner was daily wager and has been made only for certain period, to do certain work and as the nature of the appointment of the petitioner was not permanent, therefore, in, jay opinion, the Labour Court was justified in refusing the relief of reinstatement as the Labour Court was the best Court ,to adjudicate the reliefs claimed by the workman. Following the principles, the Labour Court has awarded Rs. 10,000/- as compensation.
9. In the aforesaid circumstances, I find no illegality in the impugned award dated 16.9.1998. The writ petition is devoid of merit and is hereby dismissed No order as to costs.