IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8195 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES 1 to 5 : NO -------------------------------------------------------------- SURAT MAHILA NAGRIK SAHAKARI BANK LTD Versus MAMTABEN MAHENDRABHAI JOSHI -------------------------------------------------------------- Appearance: MR VITTHALBHAI PATEL, Sr. Advocate with MR DEEPAK V PATEL for Petitioner MR AK CLERK for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 09/05/2000 ORAL CAV JUDGEMENT Heard the learned advocates for the respective parties. By means of filing the present writ petition, the petitioner-Surat Mahila Nagrik Sahakari Bank Limited [hereinafter referred to as, `the petitioner-Bank'] seeks to challenge the order passed by the Labour Court, Surat in T-Application No. 249 of 1992 under the provisions of the Bombay Industrial Relations Act, 1946 [hereinafter referred to as, `the Act'] dated 11th February, 1998 wherein the Labour Court has granted reinstatement of respondent workman in service with continuity and full backwages with consequential benefits and costs of Rs. 500/=. The said Award of the Labour Court dated 11th February, 1998 was challenged by the petitioner-Bank before the Industrial Tribunal, Surat in Appeal (IC) No. 2 of 1998. While dismissing the said appeal, the Tribunal vide Order dated 31st August, 1999 has confirmed the order passed by the Labour Court dated 11th February, 1998. Feeling aggrieved and dissatisfied with the said orders of the Courts below, the petitioner-Bank has moved this Court by filing the present writ petition. The respondent-workman had filed affidavitin-reply dated 19th November, 1999 bringing on record copy of the appointment order as a Trainee and orders on temporary appointment as Clerk-cum-Cashier and a copy of application No. 249 of 1992 alongwith written statement filed by the petitioner-Bank as well as deposition of respondent-workman and witnesses of the petitioner-Bank. The respondent-workman has also annexed copies of some of the appointment orders made in favour of Darmishtaben, Jigishaben, Punika K. Patel, Asha K Pachchigar, Vaishali K. Bookseller. Against the said reply, petitioner-Bank had filed affidavit dated 10th January, 2000. In the present petition, by an order dated 26th October, 1999, rule has been issued and ad-interim relief in terms of paragraph 14-B has been granted subject to compliance of the provisions of Sec. 17-B of the Industrial Disputes Act. Thereafter, at the request of the learned advocate, the order made earlier in the day was recalled and the following order has been made. `Rule. Learned advocate Mr. J.H Singh appears and waives service of rule on behalf of the respondent. Notice as to interim relief returnable on 2nd November, 1999. There shall be ad-interim relief in terms of paragraph 14-B.' When the matter was called out on 11th April, 2000, the learned advocates appearing for the respective parties gave consent for final hearing and disposal of the matter. Hence, Rule returnable today. Learned advocates Mr. A.K Clerk waives service of rule on behalf of respondent-workman. With the consent of the learned advocates, this matter is heard and finally decided today. The petitioner-Bank is a registered Cooperative Bank under the relevant laws and is governed by the Bombay Industrial Relations Act, 1947 and the Model Standing Orders framed for the Banking Industry. The petitioner-Bank has one of its Branches at Bombay Market at Surat. The said Bombay Market Branch employs only 19 employees. According to the petitioner-Bank, the respondent-workman was initially appointed as a Trainee on payment of sum fixed between 15th March, 1990 and 21st March, 1991. The said appointment as a Trainee was made under six separate orders issued by the Bank, each for a duration of two months. Later on, the respondent was appointed for a period of one month as a Temporary Junior Clerk-cum-Cashier in the Bombay Market Branch on the terms and conditions mentioned therein, due to increase in the workload. On expiry of the said period of one month, fresh appointment order was issued for a further period of one month, and like that, she was given appointment orders on each successive month with a notional break. Her last appointment order was for a period of one month from 4th January, 1992 to 3rd February, 1992. Thus, in all, respondent workman performed her duties for a period of ten months as a Temporary Clerk and for such appointment, 10 separate appointment orders were given to her and she had endorsed her signature thereto in token of her having accepted the terms and conditions stipulated therein. According to the petitioner-Bank she was not appointed on any permanent post and her every appointment was a new appointment and she was engaged due to workload in the Bombay Market Branch. From the record, it appears that the respondent workman had challenged the termination order dated 3rd February, 1992 by filing T-Application No. 249 of 1992 before the Labour Court, Surat. The petitioner has submitted the written statement vide Exh.9 and the respondent workman had produced certain documents vide Exh. 3, 7, 10, 11, 30 and 31. Thereafter, the respondent workman was examined before the Labour Court vide Exh. 13 and purshis was filed to close her evidence vide Exh. 32. The petitioner-Bank had examined one Pratibha Upendrabhai vide Exh. 34 and certain documents were produced by the Bank vide Exhs. 38, 45 to 48 and 49. Thereafter, vide Exh. 50, a closing purshis was filed by the petitioner-Bank for not leading further evidence in the said matter. The petitioner-Bank has submitted written arguments vide Exh. 54 and the respondent workman has produced list of authorities vide Exh. 53 and thereafter, the Labour Court has examined the merits of the matter and ultimately came to the conclusion that respondent workman had completed 240 days continuous service and undisputedly the petitioner-Bank had not followed the provisions of Section 25-F of the Industrial Disputes Act, 1947, and therefore, the termination order has been set-aside with a direction to the petitioner-Bank to reinstate the workman concerned in service with continuity and with all consequential benefits and backwages for the interim period. Feeling aggrieved and dissatisfied with the said Award dated 11-2-1998 made by the Labour Court Surat, the petitioner-Bank had filed an Appeal before the Industrial Tribunal, Surat being Appeal (IC) No. 2 of 1998, which was dismissed by the Tribunal vide Order dated 31st August, 1999. Learned Sr. Advocate Mr. Patel appearing for the petitioner-Bank has submitted that the respondent workman had served the Bank for two different period the first period being with effect from 13-3-1990 to 21-3-1991 i.e, 12 months as a Trainee by six separate orders each of two months and thereafter as a temporary Clerk with effect from 23.3.1991 to 3-2-1992; by separate independent orders each for one month and after providing notional breaks. Mr. Patel submitted that in each order of appointment, the date of termination of service has been specifically mentioned and by the afflux of time, the said service stands terminated automatically, without any positive order of termination being made by the petitioner-Bank. According to Mr. Patel, since the service of respondent workman stands terminated by afflux of time without there being any positive order of termination, the case of the respondent workman is covered under Sec. 2 (oo) (bb) of the Industrial Disputes Act, 1947, and therefore, the said termination is not a `retrenchment' within the meaning of Section 2 (oo) of the I.D Act and hence provisions of Sec. 25-F shall not be applicable to the facts of the present case. Mr. Patel further submitted that the respondent workman has not worked as an temporary employee for 12 calender months, however, in fact she had worked for only 10 months, and therefore, though the respondent workman had completed 240 days continuous service but for getting the benefit under Sec. 25-F, the total service of 12 months is required to be proved and in absence of of that, the respondent workman is not entitled to any benefit under Sec. 25-F of the Industrial Disputes Act. Mr. Patel further argued that there are two different periods viz., first from 13th March, 1990 to 3rd February, 1992 and this period was a training period and the subsequent period was as a temporary employee, and therefore, both services viz., as a Trainee as well as temporary service cannot be clubbed together for getting the benefit under the provisions of Sec. 25-F of the Act. Mr. Patel further argued that the respondent workman was not a permanent employee and there is a separate mode of recruitment in the petitioner-Bank wherein initially an employee is appointed as a Trainee and thereafter given temporary appointment and after that he is appointed as a Probationer, and after satisfactory completion of probation period, employee is treated as a permanent employee of the Bank. So, according to Mr. Patel, there are four steps or stages which are required to be completed by the employee to reach the stage of permanency in the Bank. Mr. Patel further submitted that temporary appointment was given to the respondent workman due to the over workload and that temporary appointment was not extended since the said workload was over. Therefore, termination of workman's service by the afflux of time does not mean `retrenchment' and the respondent workman is not entitled to any benefit. He further submitted that the approach notice was given by the respondent workman to the petitioner Bank and the said notice was replied to by the petitioner-Bank and it was mentioned by the petitioner-Bank that during the training period and also during temporary employment, the work of respondent-workman was not found satisfactory, and therefore, the termination was not renewed or extended by the petitioner-Bank. He further submitted that in the meanwhile, the workload was also over and no appointment was made on long term basis and therefore considering these three reasons, the services of respondent-workman came to an end by the afflux of time. Mr. Patel further submitted that the petitioner-Bank's Head office and different branches have distinct entity and its establishment is also different. He further submitted that some of the workmen were given temporary appointment but in different Branch but not in the Bombay Market Branch where the respondent was working. He submitted that the Labour Court as well as Industrial Tribunal has committed gross error in coming to the conclusion that the respondent workman was on permanent post, by clubbing both the periods i.e., as a Trainee as well as temporary and has not appreciated the submissions that the respondent-workman has not completed 240 days continuous service within a period of 12 months which is required to be completed, entitling the respondent to the benefit under the provisions of Sec. 25F of the Industrial Disputes Act, 1947. He further submitted that under the provisions of Bombay Industrial Relations Act, the employee has been defined under Sec. 3 (13)(b) which states that, `a person who has been dismissed, discharged or retrenched from employment or whose services have been terminated on account of any dispute relating to change in respect of which a notice is given or an application made under Sec. 42, whether before or after his dismissal, discharge, retrenchment or as the case may be, termination from employment. After reading the said definition, Mr. Patel emphasized that on 3rd February, 1992, services of the respondent-workman stood automatically terminated by the afflux of time and there was no order of termination issued by the petitioner-Bank against the respondent-workman, and therefore, it is not a case of termination by positive action by the petitioner-Bank, and therefore, according to his submission, even the respondent-workman has not satisfied the condition of `employee' defined under Sec. 3 (13)(b) of the BIR Act. Mr. Patel further submitted that Sec. 25-G of the I.D Act is also not applicable in the present case as there is agreement between the petitioner-Bank and the respondent-workman, and therefore, respondent- workman is not entitled to any benefit provided under Sec. 25F of the I.D Act. Mr. Patel further submitted that each month, the work of the respondent-workman was observed by the petitioner-Bank and necessary remarks in each order has been made by the petitioner-Bank on the orders of appointment as a Trainee. Mr. Patel further submitted that there was no continuous service, because each month fixed term appointment comes to an end on the expiry of the date and she has not completed 12 months' as a temporary employee, and therefore, provisions of Section 25 (B) (1) & (2) of the Industrial Disputes Act, 1947 are also not satisfied and merely non-renewal of contract of service cannot be given a meaning of `retrenchment' under Sec. 2 (oo) of the Act. Learned advocate, thus, submitted that the Labour Court has committed gross error which is apparent on the face of the record and the view taken by the Labour Court is contrary to the settled law laid down by the Apex Court and this Court can interfere with the order of the lower authority. Mr. Patel further submitted that the petitioner-Bank is a Cooperative Bank registered under the Gujarat Cooperative Societies Act and its establishment is regulated by the Bombay Industrial Relations Act, 1946 and the Model Standing Orders framed for the Banking Industry. In the Model Standing Orders, there is a classification of employees from Trainee, temporary, probation and then regular or permanent. Mr. Patel urged that while exercising the powers under Art. 226 & 227 of the Constitution, this Court can interfere with the orders of the lower authority if the said order is found to be contrary to the settled law. He submitted that there is no stigma against the respondent-workman but he admitted that the work of respondent-workman was not found satisfactory, and therefore, her period of appointment was not extended by the petitioner-Bank, and moreover, no appointment on the long term basis has been made thereafter in the Bombay Market Branch, and therefore, the petitioner-Bank has rightly not extended the period of appointment of the respondent-workman. He further submitted that the Labour Court has not decided the case on the footing that there was some malafide victimization and unfair labour practice as there was no pleading or proof produced or made by the respondent-workman before the Labour Court. Mr. Patel further submitted that the Labour Court has given wrong finding and that the Labour Court has no jurisdiction to go into the question of deciding the legality and validity of the termination order which was challenged by the respondent-workman under the provisions of Sec. 78 and 79 of the B.I.R Act, 1946. In support of his arguments, Mr. Patel has relied upon judgments in the matter of - (1) Madhya Pradesh Hasta Shilpa Vikas Nigam Limited v. Devendra Kumar Jain & Ors., reported in [1995 (I) SCC 638]; (2) Isha Steel Treatment, Bombay v. Association of Engineering Workers, Bombay & Anr., reported in AIR (1987) SC 1478; (3) Birla VXL Limited v/s. State of Punjab & Ors., reported in [1991 (1) LLJ 220]; (4) Executive Engineer, Roads & Building vs. Rameshkumar K. Bhat, reported in [2000 (1) GLH 263]; (5) Kana Ruda Bharwad v. Gujarat Water Supply & Sewerage Board & Anr., reported in [1997 (1) GLH 190]; (6) Rajvi Amar Singh v. State of Rajasthan, reported in AIR 1958 SC 228; (7) Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, reported in AIR 1986 SC 458; (8) Maharashtra State Electricity Board v. Suresh Vaidyanath Pagar & Anr., reported in 1996 (1) LLJ 935; (9) Escorts Limited v. Presiding Officer & Another, reported in [1997 (11) SCC 521]; (10) Mr. Venugopal v. Divisional Manager-LIC, reported in Lab.IC (1994) 2 SCC p-323; (11) State of Haryana v. Om Prakash & Another, reported in (1998) 8 SCC 733; (12) Nilesh Bhatt & Ors. vs. Administrative Officer, Nagar Pradhamik Shikshan Samiti & Ors., reported in 1996 (1) GLH p-108; (13) Sur Enamel & Stamping Works Limited v. The Workmen, reported in AIR 1963 SC 1914; (14) Cental Bank of India v. S. Satyam & Ors. reported in AIR 1996 SC 2526; (15) Uptron India Limited v. Shammi Bhan & Another, reported in (1998) 6 SCC 538; (16) Ashokkumar K. Pandey v. Principal, Kendriya Vidyalaya, Rajkot & Another, reported in AIR 1998 Lab. IC p-692; (17) Purshottambhai R. Kachhadia v. State of Gujarat & Ors., reported in 2000 (1) GLH 553; (18) Eversta v. District Labour Officer, reported in 1999 (11) LLJ 851 (Kerala); (19) Hari Vishnu Kamath v. Ahmad Ishaque, reported in AIR 1958 Cal. 273, [paragraph 8 and 11]; Mr. A.K Clerk, learned advocate appearing on behalf of the respondent-workman has submitted that the period of working of the respondent-workman as a Trainee employee as well as temporary employee is not disputed by the petitioner-Bank, and therefore, the entire period from 13th March, 1990 to 3rd February, 1992 was in service with the petitioner-Bank. Mr. Clerk further submitted that the petitioner Bank is having Head Office at Surat and also three branches in the very City and the petitioner-Bank is not having separate establishment. Mr. Clerk submitted that the point of separate establishment raised by the petitioner-Bank was not raised before the Labour Court, and therefore, the same cannot be raised here before this Court for the first time. Mr. Clerk submitted that the Labour Court as well as Industrial Tribunal have given concurrent finding of fact, and therefore, this Court in exercise of powers under Art. 226 & 227 of the Constitution cannot go against the same when there is no infirmity in the order made by the lower authorities. He submitted that the finding given by the lower authority is not baseless or perverse or contrary to law. Mr. Clerk submitted that on the contrary, finding given by both the Courts is based on legal evidence and it is a reasoned order. Mr. Clerk submitted that if the work of the respondent-workman was not found satisfactory, she would have definitely been served with memo or chargesheet but there is no such remark to this effect, however, simple one line remark is made on each order of appointment. Mr. Clerk pointed out that letters of appointment does not bear any date and some of the portion is also found blank. Mr. Clerk submitted that such type of appointment orders are made by the petitioner-Bank with a view to misuse and abuse the powers in arbitrary manner so that the workman may not get statutory protection under the provisions of the Industrial Disputes Act. MR. Clerk further submitted that it is second theory of hire and fire and such theory has been condemned and deprecated by the Apex Court in its various decisions. Mr. Clerk submitted that if service of any permanent employee is terminated under the provisions of Service Rules or Standing Orders or condition of service then such rules have been considered by the Apex Court in its various decisions and held to be ultra vires and contrary to the provisions of Sec. 23 of the Contract Act against the public policy. Mr. Clerk also submitted that provisions of Sec. 2 (oo)(bb) has been enacted with a view to see that in a regular appointment, if such stipulation is made and a periodical order for regular appointment has been given, then that should have to considered under Clause (bb) otherwise in case of daily rated employees, casual employees, temporary employees, ad hoc employes are not covered within the exception of clause (bb) of the I.D Act. Mr. Clerk also submitted that this statutory exception not considered to be retrenchment is otherway an old policy of hire and fire has been introduced by the legislative power to give a handle to the employer to exploit the workman and create a situation in favour of the employer by giving such periodical appointments, a workmen cannot have a right either to be confirmed or entitle to any protection under the statutory provision. This is not the object of Sec. 2 (oo) (bb) to deprive the workman of his right which has been protected since 1947 under the provision of Sec. 2 (oo) read with Sec. 25-F of the Industrial Disputes Act. He also submitted that if the submissions of learned advocate Mr. Patel are accepted, then naturally the employer will give such type of periodical orders rather than appointing the persons on long term basis. Mr. Clerk submitted that this is a device which has been adopted by the employers these days. He pointed out that even in case of necessity also, such type of periodical appointment orders are issued just to deprive the workman of his statutory right. He submitted that in fact the respondent workman had put in service of 351 days during the calender of 12 months as a Trainee and put in 309 days' service as a temporary employee, and therefore, the respondent-workman is entitled to the benefit of Sec. 25-F of the I.D Act. Mr. Clerk submitted that this is not the intention of the legislation and nor the object of such exception which has been made out under Section 2 (oo)(bb) of the I.D Act. He submitted that this is an unfair labour practice adopted by the employer under Schedule-V, Item No. 11 of the I.D Act. He submitted that the petitioner-Bank has not raised dispute about Sec. 2 (oo)(bb) in its written statement, and therefore, the said question now cannot be permitted to be raised here. He also submitted that `trainee' is covered within the definition of `employee' and after completion of temporary employment, respondent-workman becomes permanent employee. He also submitted that this is not a bona fide appointment on periodical basis wherein only specific time period has been mentioned but no specific work has been mentioned in the appointment orders. According to him, due to the workload the post was created and in that post, the respondent-workman was appointed. He also submitted that there are no rules for recruitment framed by the petitioner-Bank. He also submitted that in identical orders issued by the petitioner-Bank in favour of other lady employees, those all ladies have been confirmed subsequently and only the respondent's service has been terminated and this termination is nothing but discrimination and unfair labour practice adopted by the petitioner-Bank. He also submitted that in such type of appointments, a workman has no choice except to accept the terms. He also submitted that the appointment has been made by the Head Office of the petitioner-Bank and not by the Bombay Market Branch, and therefore, if any other appointment is made subsequently, than the provisions of Sec. 25-H will be attracted in the present case. Mr. Clerk thereafter relied upon the provisions of Sec. 25 (b)(2) wherein it is mentioned that workman shall have to complete 240 days continuous service within a period of 12 months, meaning thereby that it is not necessary that he should remain in service for 12 months period preceding the date of the termination. He submitted that the decision in the matter of Sur Enamel [Supra} has been considered by the Apex Court in subsequent decision in case of Mohanlal v. Bharat Electronics Limited [ AIR (1981) SC 1253]. He also submitted that Section 25 (b)(2) itself is very clear that if a workman has not completed one year continuous service, as provided in Sub-Sec. 1 then if workman has completed 240 days actual service, then he should be deemed to be in continuous service of one year, and therefore, the argument of Mr. Patel that the workman should have to remain in service for 12 months period for getting benefit under the provisions of Sec.