IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4809 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.4864 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.4962 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.6630 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.6957 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.6961 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.6964 of 2009 THE MANAGEMENT OF BIHAR KSHETR . Versus PROVINCIAL GRAMIN BANK EMP.ASS . with CWJC No.17785 of 2009 1. THE MANAGEMENT OF BIHAR KSHETRIYA GRAMIN BANK HEAD OFFICE BHAGAT SINGH CHOWK, MUNGER THROUGH ITS GENERAL MANAGER Versus 1. PROVINCIAL GRAMIN BANK EMPLOYEES ASSOCIATION THROUGH PRESIDENT SRI B. PRASAD 2ND FLOOR, SABOO COMPLEX, EXHIBITION ROAD, PATNA 2. BIPIN KUMAR S/O JAI KISHORE MANDAL R/O VILL- GIRL SCHOOL CHOWK, SABOUR, P.S. SABOUR, DISTT. BHAGALPUR ----------- 2 For the Petitioner:- Mr. Shivajee Pandey, Sr. Adv. Mr. Nalin Vilochan Tiwary, Adv. For the Respondents:- Mr. Devi Kant Jha, Adv. Mr. Birendra Kumar Jha, Adv. --------------- 4. 4.1.2011 Mr. Birendra Kumar Jha, Advocate, appearing on behalf of the respondents submits that he appears only in C.W.J.C. Nos. 4809 of 2009, 4864 of 2009, 4962 of 2009, 6957 of 2009 and 6961 of 2009. No one appears for the respondents in C.W.J.C. Nos. 6964 of 2009 despite valid service of notice. Let C.W.J.C. Nos. 6630 of 2009 and 17785 of 2009 be listed separately for admission as notice has not yet been issued to the respondents. The facts and questions of law in the former batch of writ applications being common, they are being disposed by this common order. The respondents are stated to have been daily wage employees working as Sweeper and Messenger in the Bhagalpur and Banka Kshetriya Gramin Banks. The Kshetriya Banks at Munger, Bhagalpur, Banka and Begusarai were subsequently merged under a policy decision creating the Bihar Kshetriya Gramin Bank with his head office at Munger. Consequent to the merger, the petitioners who were working on daily wages in the Bhagalpur 3 and Banka branches as also certain others were terminated from service. This led to a reference under the Industrial Disputes Act (hereinafter called the „Act‟) for violation of 25F of the Act along with a claim for regularization culminating in the Award dated 31.12.2008 presently impugned granting reinstatement but declining regularization. Learned counsel for the petitioner Bank contended that the respondents were daily wage employees recruited in a manner contrary to law. Whether it is the mode of their induction into service or the nature of their engagement as daily wagers precarious in its origin, there was no justification for the Award directing reinstatement. The tribunal rightly denied them the relief of regularization. The Bank may or may not need daily wage employees, more so, in view of the merger of the different Kshetriya Gramin Banks. The impugned Award cannot compel the Bank to take back in service daily wagers and continue to pay them wages notwithstanding that the Bank may not require their services. The merger had already created reduction in requirement of personnel. Alternatively, it was submitted that if the termination of the respondents was contrary to 4 Section 25F of the Industrial Disputes Act, the respondents may at best be entitled to compensation only for breach of the statutory requirements. Lastly, it was urged that any claim for back wages even if reinstatement were to be granted cannot be automatic but shall remain dependent upon a host of factors including their status in the interregnum to be determined by proper enquiry much less could back wages be awarded as a matter of course.. Reliance was placed on (2006)1 SCC 479(U.P. State Brassware Corpn. Ltd. vs. Uday Narain Pandey), A.I.R. 2009 SC 3004 ( Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Anr.) and (2010) 9 SCC 126 ( Incharge Officer & Anr. Vs. Shankar Shetti). Without prejudice to the aforesaid, it was lastly submitted that the Bank had in the meantime on 4.3.2010, advertised regular vacancies and if the respondents applied in response to the same, the Bank shall consider their candidature in accordance with law including the taking of any policy decisions with regard to relaxation of age, weightage for past work experience etc. Learned counsel for the respondents at the outset with regard to the last submission on behalf of the Bank submitted that the respondents are wary of 5 such consideration being proposed by the Bank as it is too vague and do not wish to avail that benefit. They are required to be reinstated and paid full back wages under the Award. Reliance was placed on 2010(2) SCC 543 (Ramesh Kumar Vs. State of Haryana), 2008(2) (L&S) 931 (Talwara Cooperative Credit & Service Society Limited Vs. Sushil Kumar), 2010 A.I.R. SCW 1862 (Krishna Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak) and C.W.J.C. No. 13529 of 2006. A person is engaged on daily wages by an employer keeping in mind its needs and requirements and as per the exigency of work. The strength of daily wage employees may therefore vary from time to time based on the exigency and the need of the employer including the complete absence of any such need at a given point of time. A person engaged on daily wage cannot lay out a claim for a vested right to continue on daily wages for all times to come. It has been explained in Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1, that a daily wagers hold no post and therefore has no claim for continuity in service holding at paragraph 48 as follows : “48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that 6 the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.” The Tribunal therefore rightly held that the 7 respondents had no claim for regularization. The respondents have not questioned this finding of the Tribunal. The reinstatement of the respondents can therefore be only in the capacity of a daily wage. It is not the case of the respondents that they were working on daily wage against sanctioned vacant post and therefore the observations in (2010)9 SCC 247 (STATE OF KARNATAKA AND OTHERS Versus M.L. KESARI AND OTHERS), keeping in mind their years of service is also of no avail to them. That brings to the fore the question of the effect of removal of a daily wage employee in violation of the provisions of Section 25F of the Act. The earlier consistent judicial view was that no sooner that retrenchment was in violation of Section 25F of the Act, reinstatement followed automatically. With the changing demands of the economy, the aspects of competition and globalization, the recent trend of judicial decisions however is at variance with the same. The view now being taken is that if the retrenchment was in violation of Section 25F of the Act, it may make out a claim for compensation but reinstatement may not follow automatically. This may be termed as a pragmatic view by which the constitutional goal of welfare legislation is balanced 8 with the need for the organization to be allowed to operate with a commercial and financial viability. The law cannot be static and the same provisions of law may call for a more vibrant interpretation with passage of time so that it fulfills its primary purpose for the Society rather than a stultifying approach where the law is seen as obstructionist defeating its very purpose. Undoubtedly, there cannot be any uniform yardstick to measure the aforesaid principles across the Board irrespective of the facts of a particular case. Therefore, in some judgments, the Apex Court, relying upon the individual facts of the case has given certain directions for reinstatement. It becomes crucial to examine the facts of the present case on its own merits. The award manifests that the respondents were engaged as Sweepers and Messengers on daily wages. It was not their case that they were working against sanctioned vacant posts, recruited in accordance with a procedure under Articles 14 and 16 of the Constitution of India by advertisement and selection. The petitioners contend that the appointments were back door without following any procedure. The claim for regularization rejected by the 9 tribunal has not been challenged. They had no appointment letter. Merely because they had worked for 10 long years and had completed 240 days in a year, the tribunal held their ouster contrary to Section 25F of the Act to be bad thus directing reinstatement as daily wagers. In (2007)9 SCC 748 (Madhya Pradesh Administration Vs. Tribhuban) considering an order of reinstatement with back wages in violation of Section 25F of the Act it has been held at Paragraph-6 as follows:- 6. The question, however, which arises for consideration is as to whether in a situation of this nature, the learned Single Judge and consequently the Division Bench of the Delhi High Court should have directed reinstatement of the respondent with full back wages. Whereas at one point of time, such a relief used to be automatically granted, but keeping in view several other factors and in particular the doctrine of public employment and involvement of the public money, a change in the said trend is now found in the recent decisions of this Court. This Court in a large number of decisions in the matter of grant of relief of the kind distinguished between a daily wager who does not hold a post and a permanent employee. It may be that the definition of “workman” as contained in Section 2(s) of the Act is wide and takes within its embrace all categories of workmen specified therein, but the same would not mean that even for the purpose of grant of relief in an industrial dispute referred for adjudication, application of constitutional scheme of equality adumbrated under Articles 14 and 16 of the Constitution of 10 India, in the light of a decision of a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi and other relevant factors pointed out by the Court in a catena of decisions shall not be taken into consideration.” In the case of Jagbir Singh (supra) relied upon by the petitioner the appellant was engaged as a daily wage employee. On retrenchment he raised an Industrial Dispute for violation of Section 25F of the Act claiming continuity of service and back wages. The tribunal directed reinstatement with continuity of service and full back wages. The High Court set aside the same. The Apex Court framed the question for consideration thus in Paragraph 5 of the judgment. “5. The question that falls for our consideration is whether the High Court, in a case such as this where termination of appellant was in contravention of Section 25F, was justified in upsetting the award of the Labour Court whereby the first respondent was directed to reinstate the appellant with continuity of service and full back wages. Answering that question, the Apex Court observed as follows at paragraph-7:- “7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the 11 view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.” Noticing several earlier judgments of the Apex Court on the issue, it was observed that the appointment made by a local authority without following the provisions of the recruitment rules in violation of Articles 14 and 16 of the Constitution was a nullity. Exigency of work may require engagement on daily wage or ad-hoc basis. But for that reason such a person could not claim any right to be permanently absorbed in service merely because he has completed 240 days prior to retrenchment. In conclusion, the Apex Court held as follows at Paragraph-15 “15. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and in stead compensation has been awarded. This Court has distinguished between a daily wager who 12 does not hold a post and a permanent employee. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation.” In the case of Shankar Shetty (supra), relied upon by the petitioner, the question posed by the Apex Court at Paragraph-2 of the judgment was as follows:- “2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short “the ID Act”)? The course of the decisions of this Court in recent years has been uniform on the above question.” Answering the same at Paragraph-7 relying upon the case of Jagbir Singh (supra) the Apex Court held that compensation in lieu of reinstatement was the appropriate, just and equitable order to be passed. In (2010)6 SCC 773 (Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal & Ors.) relying upon Jagbir Singh (supra) it has been held at Paragraph-9 as follows:- 13 “9. In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate………” The reliance by the respondents on the case of Ramesh Kumar (supra) appears completely misconceived. The case is completely distinguishable on its facts. Allegations were specifically leveled of gross hostile discrimination when others similarly situated and retrenched had been reinstated and regularized. The Apex Court on the facts of the case came to the conclusion that the appellant had been singled out and discriminated. It was further noticed similar awards with regard to certain other employees had been upheld by the High Court but only the appellant‟s award had been quashed. The objection with regard to an illegal induction into service was not taken before the Labour Court or the High Court but before the Apex Court for the first time. Such is not the case presently. There are no allegations of hostile discrimination and the petitioners have raised the objection of illegal induction into service at the very first stage before the Labour Court. The Apex Court in 14 the particular facts of the case concluded at Paragraph-17 of the judgment that the general principles with regard to daily wagers and persons illegally inducted cannot be invoked to deny relief to the appellant therein. In the case of Sushil Kumar (supra) the workman was not a daily wager. This distinguishes the case completely. The question was one for grant of back wages. This Court does not consider it necessary to discuss the various judgments of the Apex Court and the principles laid down in the same except to notice from Paragraph-13 of the same that where a claim for back wages is made, the onus is on the workman to show that he was not gainfully employed and there is no presumption in his favour to grant him back wages automatically. It was for the respondents to lay material before the tribunal of not having been gainfully employed during the period of their retrenchment till reinstatement and seek appropriate directions for back wages in that light. It does not appear from the discussions in the award impugned that the respondents had raised any claim for full back wages based on supportive material of their having remained unemployed during the entire period. 15 In the case of Krishan Singh (supra) the facts as noticed in Paragraph-11 of the judgment are that no stand had been taken by the management that the workman was not working on a sanctioned post or that his engagement was contrary to statutory rules and that there was no vacancy. In that background, the Apex Court held that in absence of pleadings, evidence or findings on all or any of these aspects, the Award for reinstatement could not have been modified. In the present case, it has already been noticed that the management had raised specific objections to the contrary on each aspect. The reliance on behalf of the respondents on 2010 AIR SCW 1357 ( Harjinder Singh Vs. Punjab State Ware Housing Corporation) referred to in the case of Krishan Singh (supra) based on the touchstone of part-IV of the Constitution is of no avail to the respondents. The facts of the case were entirely different. As noticed at Paragraph-12, the appellant was not a daily wager. Section 25F had been complied with. Section 25G of the Act was breached when the principle of last come first go was violating retrenching his services. True it is that a welfare statute like Section 25F has to be interpreted keeping in mind 16 that the beneficiaries are not deprived of their social welfare benefits. It is for that reason, to balance equities, considering the earlier judgments of the Apex Court, this Court is of the opinion given the nature of the appointment of the petitioners when mere long continuance shall not be sufficient to claim a vested right for continuance by them, balancing their interest in view of non-compliance of Section 25F of the Act, while denying them the benefit of reinstatement, adequate compensation has to be paid. In the case of State Bank of India relied upon by the respondents the facts were again entirely different as the respondent workman was terminated during the pendency of Reference Case No. 12 (C) of 2003, without obtaining permission of the Tribunal in teeth of Section 33 of the Act. The matter was therefore remanded to the Tribunal for a fresh decision in accordance with law. The Court on basis of the aforesaid discussion arrives at the finding that even if the award were to be upheld in its entirety, the respondents would be entitled to re-induction as daily wage employees. In absence of any material placed by them before the tribunal of their status in the interregnum that they were unemployed without any claims to that 17 effect based on evidence and a positive considered finding by the Tribunal, it could not have ipso facto directed grant of full back wages from the date of termination. But that relief remains dependent upon the substantive relief of reinstatement as daily wager if available to the respondents. It has been noticed that the petitioner Bank at the very first stage raised a preliminary objection with regard to induction into service of the respondents contrary to the law. Being daily wagers, the continuance of the respondents in services of the Bank was not a vested right but dependent upon the needs of the employer. The Bank has decided for recruitment by regular advertisement and selection. The respondents cannot insist on a vested right to be reinstated as daily wagers to frustrate efforts by the Bank to make regular recruitments in accordance with law by insisting that regular recruitments must give way in favour of continuance of daily wagers. The Bank before this Court has already taken the stand that it has advertised for regular appointment. The respondents contend that they do not wish to be considered for the same. What the respondents desire or do not desire is for them to 18 decide alone. Keeping in mind that the respondents though illegally inducted into service had worked as Messenger and Sweeper for 12 long years on daily wage, that they had wrongly been kept out of service from 16.9.2006 after retrenchment, the award being dated 31.12.2008, the writ petition having been filed by the Bank on 23.3.2009, the Court holds that a sum of Rs. 50,000/- as compensation to each of the individual respondents shall meet the ends of justice. The award is set aside with the aforesaid directions. The writ applications are allowed. P. Kumar ( Navin Sinha, J.)