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Respondent no.2 had come up with a case that he was engaged with the petitioner-Bank on 21.11.1983 as a temporary Clerk-cum-Cashier and was thereafter disengaged from service on 8.2.1984. The respondent no.3 also had a similar case and he stated that he was engaged on 21.3.1983 as a temporary Clerk and was disengaged on 8.6.1983. The respondent nos.2 and 3 had come up with a case that they were entitled to be absorbed as regular employees. They had taken a case that when they were retrenched they were not the junior most temporary employees in the organization, meaning thereby their services were done away with in violation of the provisions of Section 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Central Act"); and it was stated after they were removed, fresh hands were recruited in violation of the provisions of section 25H of the Central Act. It was stated that these actions of the employer were in violation of the SASTRY Award and the bipartite agreement between the bank and Workers' Union. The petitioner-Bank had opposed the claim of the respondent nos.2 and 3 before the Tribunal.

(iii) When the Reference to the Tribunal in effect was as to whether there was any violation of the provisions of section 25H of the Central Act and when no information was provided as to who were the employees junior to the respondents working in the establishment then the award could not be sustained. Learned counsel submitted that Ashok Kumar Jain and Anil Kumar who were appointed in 1983 and 1984 were appointed at the time the respondents were also appointed. So far as Shyam Singh and Mukesh Kumar were concerned, they were of a different category as they had been recruited through the Bank. Learned counsel therefore submitted that regularising persons who had already been working would not attract the provisions of section 25H of the Central Act. In this regard, learned counsel for the petitioner relied upon (2019) 2 SCC 743 : Management of the Barara Cooperative Marketing-cum-Processing Society Ltd. vs. Workman Pratap Singh. Learned counsel in order to give strength to his argument that a retrenched employee had no absolute right for re-employment relied upon 2009 (9) ADJ 141 : State Bank of Bikaner and Jaipur vs. Anurag Sharma. Learned counsel further submitted that since the Reference was only with regard to the alleged violation of the provisions of section 25H of the Central Act, the only issue which was required to be seen was as to whether any opportunity to the retrenched workman was given or not for re-employment when vacancies arose and others were given employment. In this regard, learned counsel submitted that the Circular dated 16.8.1990 which was made a part of the record of the Tribunal and was also a part of the record of the writ petition was an opportunity enough for the respondent-employees to have approached the Bank. He further submitted that there was earlier to 16.8.1990, another Circular issued on 23.4.1987 in various newspapers. The respondents had purposely not responded to the Circulars and, therefore, now they could not claim any right under the provisions of section 25H of the Central Act.

Learned counsel for the respondent nos.2 and 3 in Writ Petition No.4682 of 2011 (and as a counsel for the petitioners in Writ Petition No.37335 of 2011) however, supported the award to the extent that it had directed for the reinstatement of the respondent nos.2 and 3 and submitted that when the issue with regard to the violation of the provisions of section 25H of the Central Act was being considered, then it became imperative that the findings with regard to the provisions of section 25G of the Central Act and Rules 77 and 78 of the Central Rules be given. In this regard, learned counsel for respondent nos.2 and 3 relied upon 1997 (76) FLR 393 : Oriental Bank of Commerce vs. Union of India & Ors. and 1987 (55) FLR 527 : Gujarat State Machine Tools Corporation Limited, Bhavnagar vs. Deepak J. Desai. Learned counsel further submitted that when there was violation of the provisions of Rules 77 and 78 of the Central Rules and when it was evident from the award that juniors were absorbed to the detriment of the petitioners then the award could not be interfered with so far as it reinstated the workmen-respondent nos.2 and 3. Learned counsel further submitted that the Industrial Disputes Act, 1947 was a welfare legislation and when an industrial dispute was raised by the respondents upon gaining knowledge of the fact that persons junior to them were being regularised then it was in the fitness of things that the delay of a few years was condoned by the Tribunal. However, learned counsel for respondent nos.2 and 3 submitted that the delay of almost 11 years which was committed by the Tribunal should not have been there. Learned counsel submitted that the High Court had protected the interest of the respondents when the orders dated 23.8.2011 and 13.7.2012 were passed. The orders dated 23.8.2011 and 13.7.2012 as were read out by the learned counsel are being reproduced here as under :-

Provided that the provisions of this sub-rule need not be complied with by the employer in any case where intimation is sent to every one of the workmen mentioned in the list prepared under rule 77."
The submission of the learned counsel for the Bank that the Reference when was with regard to the opportunity as was to be granted under section 25H, then the Tribunal could not have given further findings with regard to the provisions of section 25G and Rules 77 and 78 of the Central Rules is absolutely misplaced. I am of the view that unless findings with regard to the provisions of Rules 77 and 78 of the Central Rules and with regard to the provisions of section 25G are given, the Tribunal could not have arrived at a proper conclusion as to whether the provisions of section 25H were violated. The Tribunal, in the fitness of things, found that no proper seniority list was maintained; no proper opportunity to the respondents, as was required to be given under the Rules, was provided before regularising persons junior to them and further the Tribunal correctly found that the delay on the part of the respondent-workmen was negligible. No fault can also be found with regard to the findings viz-a-viz. the application of the SASTRY Award and bipartite agreement in the case.