IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-07-2006 CORAM : THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P. No. 23839 of 2003 -o- D. Mohan .. Petitioner Versus 1. The Presiding Officer Central Government Industrial Tribunal-cum-Labour Court Shastri Bhawan Chennai – 600 006 2. The Chief General Manager State Bank of India Local Head Office College Lane Chennai – 600 034 .. Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari as stated therein. For Petitioner : Mr. N.G.R. Prasad for M/s. Row & Reddy For Respondents : Mr. T.R. Rajagopalan, Sr. Counsel for Mr. K.S. Sundar for R2 ORDER The prayer in this writ petition is for a Writ of Certiorari to call for the records from the first respondent relating to I.D. No. 645/2001, quash the award dated 21.03.2003 and issue a consequential directions to the second respondent Bank to restore the petitioner to service with effect from 01.04.1997 and give him the benefit of permanency from that date. 2. The case of the petitioner is as follows:- https://hcservices.ecourts.gov.in/hcservices/ The petitioner joined the service of the second respondent/Bank in December 1987 as a temporary messenger in Karunguli Branch, Chengalpet and he continued in the same branch till the end of March 1997. The second respondent denied employment to the petitioner from 01.04.1997 without taking note of the fact that the petitioner worked for a period of ten years and without retrenchment compensation or one month notice pay as contemplated under Section 25 (F) of the Industrial Disputes Act, 1947, hereinafter referred to as Act. According to the petitioner, one Madhavan, who was employed in the year 1988 was made permanent. The petitioner, having failed in all his efforts for reinstatement, raised Industrial Dispute under Section 2(A) of the Act before the Government which was referred for adjudication to the labour court. The Tribunal/first respondent herein dismissed the claim of the petitioner by passing an award on 21.03.2001. It is further stated that the Tribunal did not go into the question whether there was any violation of Section 25 F of the Act or not and also not decided how the said Madhavan, who joined the second respondent Bank one year later than the petitioner has been absorbed permanently and prayed for setting aside the award and consequently direct the second respondent to restore the petitioner in service with effect from 01.04.1997 with all attendance benefits. 3. The case of the second respondent/bank is as follows:- The second respondent is a Statutory Banking Corporation constituted under the State Bank of India Act 53 of 1955. It has more than 9000 branches through out India. The second respondent, considering the business exigencies and efficient functioning on account of emergent needs, engaged temporary employees in subordinate cadre interalia against leave vacancies etc., There was no actual permanent vacancy of any post but only in the leave vacancy. The services of persons like the petitioner were engaged by the second respondent as and when required; that the temporary employees throughout India approached the State Bank of India Staff Federation, which in turn made a demand for permanent appointment of the employees. Pursuant to that five settlements were entered into with the Union on 17.11.1987, 16.12.1988, 27.10.1988, 09.01.1991 and 30.07.1996. The petitioner raised conciliation proceedings before the Conciliation Officer and the Government of India made a reference to the first respondent herein to conciliate – 'Whether the action of the management of State Bank of India, Chennai in denying employment to Tr. Mohan with effect from 01.04.1997 is legal and justified. If not, to what relief the said workman is entitled to? Before the Tribunal, the second respondent submitted that the petitioner was engaged as https://hcservices.ecourts.gov.in/hcservices/ a casual employee for doing other miscellaneous works and not messenger work; that 744 temporary employees were wait listed and out of them 339 were appointed and the remaining 405 temporary workers were not appointed. The petitioner is junior to the aforesaid 450 employees who were engaged during the period from 01.07.1975 to 31.12.1987. In view of the interim order granted by this Court in WP No. 7872 of 1991, the supplementary list of temporary employees and the daily wager lists could not be finalised. The petitioner belonged to daily wager category and hence his name could not be considered under the first settlement. The petitioner cannot avail the benefits under the Tamil Nadu Industrial Employees Conferment of Permanent Status Act, which is not applicable to the second respondent bank, as it is a central Government undertaking. The minutes recorded before the Labour Commissioner (Central) Hyderabad is a binding settlement on the petitioner since the petitioner is only a daily wager and he cannot claim seniority over other group of 405 temporary employees who were wait listed but not appointed. The petitioner was a daily wager engaged during the year 1987, hence, he was not covered by the eligibility criteria under the first settlement. The petitioner was engaged by the Karunguli Branch in the year 1987 only for 11 days as a temporary messenger-cum-sweeper-cum- waterman. Under clause 10 of the first settlement dated 17.11.1987, there was a prohibition for engaging any temporary employee, hence, the engagement of the petitioner itself is per se unauthorised. As per clause 10, future temporary engagement was completely prohibited and in case of exigency, the engagement were permitted only from and out of the existing wait listed penal that is to be drawn under the first settlement. The petitioner has not let in any evidence before the Tribunal to prove that seniors were retained, hence, the first respondent rightly rejected the claim of the petitioner. 4. Mr. N.G.R. Prasad, learned counsel for petitioner submits that the petitioner joined the service of the second respondent/Bank in December 1987 as temporary messenger in Karunguli Branch, Chengalpet and continued there till the end of March 1997; that assuming some artificial break, it was due to the act of the second respondent bank; that during the period 1996- 1997 alone taken into consideration, the petitioner completed 240 days service in 12 calendar month, which is evident from the communication dated 15.04.1998 sent by the bank; that one Madhavan, who was employed in the year 1988 and junior to the petitioner was made permanent by the second respondent; that it is no longer necessary for the petitioner to show that he has been in employment during the preceding period of 12 calendar months to qualify within the terms of Section 25-B of the Act and it is sufficient for the purposes of Section 25-B (2) (a) (ii) of the Act that he has actually worked for not less than 240 days during https://hcservices.ecourts.gov.in/hcservices/ the preceding period of 12 calendar months; that the second respondent terminated the service of the petitioner without following the procedures of retrenchment stipulated under Section 25 (F) of the Act; that when Section 25-F is not followed, reinstatement to put back where the employee left off is the relief; that the Tribunal failed to follow the above said principles and prayed for setting aside the same. 5. In support of his contentions, the learned counsel for the petitioner relied on the following decisions:- i) (Pramod Jha and others vs. State of Bihar and others) (2003) 4 Supreme Court Cases 619, wherein in Paragraph Nos. 10 and 11, it is status thus:- "10. We have given our anxious consideration to submission and counter- submission made before us in the light of the pleadings and undisputed documents available on record. We are of the opinion that the appeals are devoid of any merit and liable to be dismissed. The underlying object of Section 25-F is twofold. Firstly, a retrenched employee must have one month’s time available at his disposal to search for alternate employment, and so, either he should be given one month’s notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25-F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month’s notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment. https://hcservices.ecourts.gov.in/hcservices/ 11. Compliance with clauses (a) and (b) of Section 25-F strictly as per the requirement of the provision is mandatory. However, compliance with clause (c) is directory, as held in Gurmail Singh v. State of Punjab and a substantial compliance would be enough." ii) (Surendra Kumar Verma and others vs. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another) (1980) 4 Supreme Court Cases 443, wherein in Paragraph No. 9 and 14, the Honourable Supreme Court held thus:- "9. Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25-B(2) now begins with the clause “where a workman is not in continuous service . . . for a period of one year”. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants. 14. On the other question decided by my learned Brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced in the Industrial Disputes Act, 1947 by Act 36 of 1964 — the deletion of Section 2 (eee) and the substitution of the present Section 25-B for the original section — it is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of Section 25-B. It is sufficient for the purposes of Section 25-B(2)(a)(ii) that he has actually worked for not less than 240 days during the preceding period of 12 calendar months. The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen does not apply to situations governed by the subsequently substituted Section 25-B of the Act." https://hcservices.ecourts.gov.in/hcservices/ iii) (Nicks (India) Tools vs. Ram Surat and another) (2004) 8 Supreme Court Cases 222 wherein in Para-19, it was held thus:- "19. .....In the instant case, we have already noticed that the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the abovecited judgments of that Court. Similarly, in the case of M.P. SEB this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold that either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages." iv) (Executive Engineer and another vs. Lekh Raj and another) (2005) 12 Supreme Court Cases 181, wherein in Paragraph No.3, it was held thus:- "3. In Civil Appeal No. 5311 of 2003 the respondent Sikander Singh raised a dispute on the ground that he was working with the appellant https://hcservices.ecourts.gov.in/hcservices/ from 01-02-1993 to 14-12-1996, on which date his services were terminated without complying with the requirements of Section 25-F of the Industrial Disputes Act. In support of his contention that he has been working continuously during the said period he examined himself and reiterated the claim made by him in his petition. From the award it is seen that even though he was cross-examined, no question was asked in regard to the period of his working with the appellant management. We find management witness MW1 Sukdev Singh in his examination admitted that the workman therein had worked from 01-02-1993 to 13- 09-1996 which supports the case of the workman. On the said basis the labour court by its award dated 03-08-2000 allowed the claim of the respondent workman and directed his reinstatement with full back wages." v) (State Bank of India vs. N. Sundaramoney) 1976 (1) LLJ 478, wherein in Para-11, it was held thus:- "11. What follows? Had State Bank known the law and acted on it, half a month’s pay would have concluded the story. But that did not happen and now, some years have passed and the bank has to pay, for no service rendered. Even so, hard cases cannot make bad law. Reinstatement is the necessary relief that follows. At what point? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw where he to be appointed in the same post today de novo. As for benefits, if any, flowing from service he will be ranked below all permanent employees in that cadre and will be deemed to be a temporary hand upto now. He will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court. Not that we are laying down any general proposition of law, but make this direction in the special circumstances of the case. As for the respondent’s emoluments, he will have to pursue other remedies, if any." https://hcservices.ecourts.gov.in/hcservices/ vi) (Deep Chandra vs. State of Uttar Pradesh and another) 2001 (3) L.L.N. 820 wherein the Honourable Supreme Court held in Para-2 thus:- "2. The High Court approached the matter rather strangely as it went at a tangent to consider not only whether the casual worker’s services could be put an end to but if the award made by the Labour Court would make him a permanent employee, so on and so forth. The High Court lost sight of the point in issue that is when an employee had put in service for more than 240 days in each year for several years whether his services can be put to an end without following the procedure prescribed under Section 25-F of the Industrial Disputes Act. If there has been violation thereof such an employee will have to be reinstated in his original service on the same terms and conditions in which he was working earlier. If this is the position in law, we fail to understand as to how the High Court could have interfered with the award made by the Labour Court. We set aside the order made by the High Court and restore the award made by the Labour Court. The appeal is allowed accordingly." vii) (The President, Srirangam Co-operative Urban Bank Limited vs. The Presiding Officer, Labour Court, Madurai and another) 1996 (2) LLJ 216, wherein a Division Bench of this Court held in Para-5 thus:- "5. From the impugned order of termination of the petitioner, it is clear that the same has been done pursuant to the direction issued by the Joint Registrar of Co-operative Societies, Tiruchy in the report made by him in RC No.14755/81-B5 (i) dated April 9, 1982. It may be pointed out here that even though the termination was made pursuant to the direction of the Joint Registrar, nevertheless such a termination was required to be made in accordance with the provisions contained in S.25F of the Act in as much as the said section does not make any difference whether the appointment has been made in accordance with law or not. The expression used in that section is "Workman employed in any industry who has been in continuous service for https://hcservices.ecourts.gov.in/hcservices/ not less than one year under an employer", therefore the factum of employment is relevant and not the legality or otherwise of it." 6. Mr. T.R. Rajagopalan, learned Senior counsel appearing for the second respondent/Bank submitted that the petitioner is admittedly a daily wage employee and his termination cannot be said to have been retrenched within the meaning of Section 25-F of the Act; that the petitioner was not appointed to the post in accordance with the Rules of the Bank, but he was engaged on the basis of need of the work and therefore his disengagement from service cannot be construed to be retrenchment; that since the petitioner is a daily wage employee, he has no right to post and his disengagement is not arbitrary at all; that the averment of the petitioner that the last come goes first is not applicable to the case as the petitioner has not let in any evidence to prove the same though onus lies on him to prove and in any event, the petitioner has not proved the same; that the said question of fact cannot be canvassed by the petitioner in this writ petition; that the petitioner is aware of the nature of employment when he took it up, hence, those who were employed on a daily wage or temporary or on contractual basis cannot claim that they have a fundamental right to be absorbed in service and prayed for dismissal of the writ petition. 7. The learned Senior counsel appearing for the second respondent/bank relied on the below mentioned decisions:- i) (Himanshu Kumar Vidyarthi and others vs. State of Bihar and others) AIR 1997 Supreme Court 3657, wherein in Para-3, it was held thus:- "3. The admitted position is that Petitioner 1 came to be appointed as Assistant, Petitioner 2 as Driver and Petitioners 3 to 5 as Peons on different dates, viz., on 1-8-1988, 10- 11-1989, 31-5-1987 and 22-4-1992. They were appointed in the Cooperative Training Institute, Deoghar by its Principal. They are admittedly daily-wage employees. Their services came to be terminated by the Principal. Calling that termination in question, they filed a writ petition in the High Court. The main grievance of the petitioners before us is that termination of their services is in violation of Section 25-F of the Industrial Disputes Act, 1947. The question for consideration, therefore, is: Whether the petitioners can be said to have been “retrenched” within the meaning of Section 25-F of the https://hcservices.ecourts.gov.in/hcservices/ Industrial Disputes Act? Every department of the Government cannot be treated to be “industry”. When the appointments are regulated by the statutory rules, the concept of “industry” to that extent stands excluded. Admittedly, they were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of “retrenchment” therefore, cannot be stretched to such an extent as to cover these employees. The learned counsel for the petitioners seeks to contend that in the High Court, the petitioners did not contend that it is a case of retrenchment but termination of their services is arbitrary. Since they are only daily-wage employees and have no right to the posts, their disengagement is not arbitrary." ii) (Regional Manager, SBI vs. Rakesh Kumar Tewari) 2006 (1) Supreme 151 wherein in Paragraph Nos. 13, 15, 17 and 18, it was held thus:- "13. Section 25G requires the employer to "ordinarily retrench the workman who was the last person to be employed in a particular category of workman unless for reasons to be recorded the employer retrenches any other workman". This "last come first go", rule predicates 1) that the workman retrenched belongs to a particular category; 2) that there was no agreement to the contrary; 3) that the employer had not recorded any reasons for not following the principle. 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 Mohamed Shah vs. Mt. Saran AIR 1930 PC 57 (1); Bondar Singh & Ors. vs. Nihal Singh and Ors. (2003) 4 SCC 161). https://hcservices.ecourts.gov.in/hcservices/ 15. In the first appeal, the respondent had raised no allegation of violation of Section 25G in his statement of claim before the industrial tribunal. His only case was that Section 25H of the Act had been violated. Section 25H unlike Section 25G deals with a situation where the retrenchment is assumed to have been validly made. In the circumstances, if the employer wishes to re-employ any employee, he must offer to employ retrenched workman first and give them preference over others. The two sections viz. 25G and 25H therefore operate in different fields and deal with two contradictory fact situations. The Tribunal ignored the fact that there was no pleading by the respondent in support of an alleged violation of Section 25G. Indeed the order of reference by the Central Government did not also refer to Section 25G but only to Section 25H. In the circumstances it was not open to the Tribunal to "go off on a tangent" and conclude that the termination of service of the respondent was invalid because of any violation of Section 25G by the appellant. 17. The respondent's case in the first appeal of violation of paragraph 497 of the Shastri Award was wholly misconceived. That paragraph deals with the rights of apprentices and has no application to temporary employees like the respondent. Assuming that there was a violation of the Shastri Award by