IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29-04-2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.Nos.3854 and 3855 of 2006 W.P.No.3854 of 2006 Indian Bank Employees Association, represented by its General Secretary, K.Krishnan, No.60/2A, Bajanai Koil Street, Choolaimedu, Chennai-600 094. .. Petitioner. Versus 1.The Presiding Officer, The Central Government Industrial Tribunal-cum-Labour Court, Sastri Bhavan, Haddows Road, Chennai-600 006. 2.The Deputy General Manager, Indian Bank, Zonal Office, No.24/2, Ethiraj Salai, Chennai-600 105. .. Respondents. Prayer: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus after calling for the records from the file of the first respondent pertaining to the proceedings in I.D.No.697 of 2001, quash the award, dated 26.11.2002 and consequently directing to the II Respondent reinstate the workman with backwages and continuity of services. For Petitioner : Mr.V.Ajaykhose for Mr.M.Muthupandian For Respondents : Mr.R.Venkatraman for M/s.Aiyar and Dolia (R2) W.P.No.3855 of 2006 A.Ramesh .. Petitioner. Versus https://hcservices.ecourts.gov.in/hcservices/ 1.The Presiding Officer, The Central Government Industrial Tribunal-cum-Labour Court, Sastri Bhavan, Haddows Road, Chennai-600 006. 2.The Zonal Manager, Indian Bank, Zonal Office, Jenny Plaza, No.5, Bharathiar Salai, Tiruchirapalli-620 001. .. Respondents. Prayer: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus after calling for the records from the file of the first respondent pertaining to the proceedings in I.D.No.64/01 of 2001, quash the award, dated 16.08.2002 and consequently to the 2nd respondent to reinstate workmen with backwages and continuity of services. For Petitioner : Mr.V.Ajaykhose for Mr.M.Muthupandian For Respondents : Mr.R.Venkatraman for M/s.Aiyar and Dolia (R2) COMMON ORDER The writ petition, in W.P.No.3854 of 2006, has been filed praying for a writ of certiorarified mandamus to quash the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 26.11.2002, made in I.D.No.697 of 2001, and to direct the second respondent management to reinstate the workman concerned in service, with backwages and continuity of service. 2. The writ petition, in W.P.No.3855 of 2006, has been filed praying for a writ of certiorarified mandamus to quash the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 16.8.2002, made in I.D.No.64 of 2001, and to direct the second respondent management to reinstate the petitioner in service, with backwages and continuity of service. 3. It has been stated that the petitioner Association, in W.P.No.3854 of 2006, has been registered, under the Trade Unions Act, 1926, with registration No.1316/MDS. The petitioner Association has filed the present writ petition, in W.P.No.3854 of 2006, on behalf of one B.Neelakandan, who had been engaged, originally, as a Sub-staff, in the Bank of Thanjavur, from 24.7.1986. He was employed in the International Division of the said bank, at Chennai, and in its various branches, continuously. https://hcservices.ecourts.gov.in/hcservices/ 4. The Bank of Thanjavur was amalgamated, with the Indian Bank, with effect from 20.2.1990. Even thereafter, he had been engaged as a Sub-staff, on daily wages, in the Lattice Bridge Road branch of the Indian Bank, from 15.10.1990. He had worked for more than 240 days, till the date of his non-employment. 5. It has also been stated that B.Neelakantan was denied employment from the month of March, 1997. The petitioner Union had raised a dispute, with regard to his reinstatement and regularisation in service before the concerned conciliation officer. Since, no settlement could be arrived at, the Assistant Commissioner of Labour had submitted a failure report to the Ministry of Labour, Government of India. Thereafter, the dispute had been referred for adjudication. The matter was taken up as an industrial dispute, on the file of the first respondent Industrial Tribunal-cum-Labour Court, in I.D.No.697 of 2001. 6. It has been further stated that the first respondent had passed an award, dated 26.11.2002, rejecting the claims made by the petitioner association on behalf of B.Neelakantan, stating that he had been engaged only as a casual employee in the second respondent bank, on daily wages and that, by itself, would not confer any right on him to make a claim for being absorbed in service, as a permanent Sub-staff. As such, the first respondent had held that the action of the management of the Indian Bank, denying employment to B.Neelakandan, is legal and justified. 7. The first respondent Labour Court had held that the concerned workman had not been engaged by the respondent Bank, as per the norms prescribed for the recruitment of sub-staff and as he had been engaged only as a casual sub-staff, on a day-to-day basis, unauthorisedly, it cannot be said that his service had been terminated, by the second respondent bank, arbitrarily and illegally. 8. In the writ petition, in W.P.No.3855 of 2006, it has been stated that the petitioner had joined the Bank of Thanjavur Ltd., at Srinrangam Branch, on 1.6.1987, as a Sub-staff, on a daily wage of Rs.15/-. The Bank of Thanjavur was amalgamated, with the Indian Bank, with effect from 20.2.1990. Even thereafter, he had been engaged as a Sub staff, on daily wages, in the Srirangam Branch of the Indian Bank, between the years 1992 and 1995. He had worked for more than 240 days, till the date of his non-employment. 9. It has also been stated that the petitioner was denied employment, from 1.1.1997. The petitioner had raised a dispute, with regard to his termination from service, before the Assistant Commissioner of Labour, Tiruchirapalli. Since, the conciliation proceedings had ended in failure, the matter was taken up as an industrial dispute, on the file of the first respondent Industrial Tribunal-cum-Labour Court, in I.D.No.64 of 2001 https://hcservices.ecourts.gov.in/hcservices/ 10. The first respondent had passed an award, dated 16.8.2002, rejecting the claims made by the petitioner, stating that he had been engaged only as a casual employee in the second respondent Indian Bank, on daily wages and that, by itself, would not confer any right on him to make a claim, for being absorbed in service, as a permanent sub-staff. As such, the first respondent had held that the action of the management of the Indian Bank, denying employment to the petitioner, is legal and justified. 11. The first respondent Labour Court had held that the concerned workmen had not been engaged, by the respondent Bank, as per the norms prescribed for the recruitment of sub-staff and as they had been engaged only as a casual sub-staff, on a day-to-day basis, unauthorisedly, it cannot be said that they had been terminated by the second respondent Bank, arbitrarily and illegally. The present writ petition had been filed by the petitioner challenging the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 16.8.2002, made in I.D.No.64 of 2001. 12. The learned counsel appearing on behalf of the petitioners had submitted that the impugned awards of the first respondent Labour Court are arbitrary and in violation of Article 14 of the Constitution of India. When the employment of the petitioners, as Sub-staff, had been admitted by the second respondent Bank, in the counter affidavit filed on its behalf, the decision of the first respondent that they were not entitled to claim reinstatement and regularisation in service is arbitrary and contrary to the well established principles of law. Since, the termination of the workmen concerned was void abinitio, as it was contrary to Section 25-F of the Industrial Disputes Act, 1947, the first respondent ought to have directed the second respondent Bank to reinstate the workmen in service, with backwages. The first respondent had wrongly proceeded on the basis that the claim of the workmen was for their absorption and regularisation in service. In fact, the claim of the workmen was that their termination from service, by the second respondent Bank, without following the provisions of Section 25-F of the Industrial Disputes Act, 1947, is arbitrary and illegal. 13. It has also been stated that the finding of the first respondent Labour Court that the workmen were not entitled to be included in the temporary sub-staff panel, as per the Bank's Circular, dated 21.12.1992, is perverse in nature. The first respondent had failed to note that there is no distinction between a permanent employee and a daily paid, casual or temporary employee, as per the definition of `workman', under Section 2(s) of the Industrial Disputes Act, 1947. Once it is established that the employee concerned is a `workman', his non-employment, without following the procedures prescribed under Section 25-F of the Act, would be arbitrary and illegal. https://hcservices.ecourts.gov.in/hcservices/ 14. The learned counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions: 14.1. In Anoop Sharma Vs. Executive Engineer, Public Health Division No.1, Panipat [2010-III-LLJ-1 (SC)], it had been held as follows: "15. In State Bank of India v. N. Sundara Money [1976- I-LLJ-478(SC)], the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25- F(b). 16. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar [2003-II-LLJ-23 (SC)] in the following words: 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." 14.2.In Harjinder Singh Vs. Punjab State Warehousing Corporation (2010(3) SCC 192), it had been held as follows: "14. A reading of the impugned order shows that the learned Single Judge did not find any jurisdictional error in the award of the Labour Court. He also did not find tht the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single https://hcservices.ecourts.gov.in/hcservices/ Judge rejected the argument of the Corporation that termination of the appellant's service falls within the ambit of Section 2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of the Corporation was contrary to Section 25-G of the Act which embodies the rule of last come first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with compensation of RS.87,582 by assuming that the appellant was initially appointed without complying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the Corporation before the Labour Court, the appellant's claim for reinstatement with backwages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced nor any argument was advanced in that regard. Therefore, the Labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior courts in reent year that the court should not pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was not at all justified in entertaining the new plea raised on behalf of the Corporation for the first time during the course of arguments and overturn an otherwise well-reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family." 14.3. In The President, Srirangam Co-operative Urban Bank Ltd. Vs. The Presiding Officer, Labour Court, Madurai and another (1996 II LLJ 216), it had been held as follows: "4. We find it very difficult to accept these contentions. Firstly, the bank, which had appointed the petitioner, had taken his services, and paid wages during the period he worked, cannot now be permitted to say that the appointment was bad in law, therefore it was entitled to terminate the services without following the procedure prescribed under the I.D.Act. The bye-law referred to above, does not require that the appointment to be approved by the Registrar of Co-operative Societies. Further the petitioner was not appointed as regular employee. He was appointed only on daily wage basis. The services contemplated under the bye-laws are the regular appointments and not the appointments on daily wage basis, therefore, the contentions based upon the special bye-law https://hcservices.ecourts.gov.in/hcservices/ and the circular of the Registrar, which cannot be applied to the present case, as it is a pure and simple case of appointment on daily wage basis, cannot be accepted. When once the workman is appointed on daily wage basis and if he works for 240 days in a year, he must be said to be in continuous service as per Section 25B of the Act, as such he is entitled to be made permanent. However, we do not propose to enter into this aspect of the matter and record any finding on this because it is not one of the points raised in the dispute referred to the Labour Court. The dispute referred to the Labour Court was only with regard to the non- employment of the petitioner and the computation of relief in term of money if it is held that the petitioner is entitled to reinstatement with back wages. For the purpose of this case it is sufficient to point out that the writ petitioner worked for over two years. Thus, he was incon-tinuous service for more than one year as such he was entitled to the benefit of Section 25F of the Act. The expression 'retrenchment' as per Section 2 (oo) of the I.D. Act means the termination by the employer of service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action as long as such termination does not fail within the category of the voluntary retirement of a workmen or retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf. Thus, Section 2(oo) does not make any difference between regular appointment or temporary appointment or appointment on daily wage basis or appointment of a person not possessing requisite qualification. Clause (bb) in Section 2(oo) came to be inserted only with effect from August 18, 1984, therefore the said provision is not applicable to the present case. The present case also does not fall under Clause (c) because the services of the petitioner have not been terminated on the ground of continued ill-health. Similarly, Section 25F of the Act specifically provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice (b) the workman has been paid at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous Service or any part thereof in excess of six months. This is a case in which the petitioner was in continuous service for more https://hcservices.ecourts.gov.in/hcservices/ than one year under the bank irrespective of the fact whether the appointment made by the bank was valid one or not. It is not in dispute that the petitioner was temporarily appointed by the Board of the Bank on August 1, 1980 as it is specifically stated in the counter filed by the bank before the Labour Court, Madurai which reads thus: "The Board of respondent bank decided on July 25, 1980 to appoint the petitioner temporarily with effect from August 1, 1980 on wages at Rs. 5/- per day and to request the Deputy Registrar of Co-operative Societies to exempt the case of appointment of the petitioner from the circular of the Registrar dated September 17, 1977 as the appointment would be against that circular". It is also further stated in paragraph 13 of the center that the petitioner was to be confirmed on the date of termination of the employment, but the bank could not help terminating his employment instead of confirming him. 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 Section 25F of the Act in as much as the said section does not make any difference whether the appointment has beer 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 not less than one year under an employer', therefore the factum of employment is relevant and not the legality or otherwise of it. 14.4. In an unreported judgment, made in W.P.No.16768 of 2000, dated 27.12.2009, this Court had held as follows: "18. The contention raised by the petitioners before the Labour Court was rejected mainly on the ground that their appointment was not as per the service regulations framed by the Corporation and it was nothing but a back door entry. It is true that such back door entry assumes significance when a plea for regularization was made. However, the question of retrenchment stands in a totally different position. The principles which have to be followed in the case of regularization cannot be applied mechanically with respect to a case of retrenchment. The entire award of the learned Judge proceeds on the basis that the request was for regularization and the same cannot be entertained in view of the method adopted by the https://hcservices.ecourts.gov.in/hcservices/ petitioners for entry into service. Therefore, the learned Judge proceeded on a wrong footing which resulted in non- considering the issue regarding retrenchment. In such circumstances, necessarily the matter requires reconsideration by the learned Judge." 15. In the counter affidavits filed on behalf of the second respondent Bank, it has been stated that the petitioners had never been appointed by the Bank of Thanjavur. Only those employees, who had been appointed and who were holding various posts in the Bank of Thanjavur and who were on the rolls, as on the date of its amalgamation, had been absorbed into the services of the second respondent Indian Bank. Since, B.Neelakantan, and R.Ramesh had never been appointed in the Bank of Thanjavur Limited, the question of absorbing them into the services of the respondent bank did not arise. 16. It had also been stated that the second respondent Bank was maintaining a panel of temporary sub-staff, who were engaged in the leave vacancies, when the permanent sub-staff in the branches, under the control of the Zonal office, go on leave. They had been engaged, only as ‘casual employees’, occasionally, on a day-to-day basis, depending upon the availability of work. Both, B.Neelakantan and R.Ramesh, were never in the panel of temporary sub-staff, which was in existence. 17. It had also been stated that, on 30.9.1978, the Finance Ministry, Department of Economic Affairs, had issued certain directives to all the Public Sector Banks and financial institutions stating that all vacancies arising, irrespective of the nature and duration of the vacancies, are to be notified and filled up only by calling for names from the employment exchanges. In terms of the Government Guidelines, the respondent Bank, by its circular, dated 4.3.1983, had set out the norms for the engagement of the persons, during the leave vacancies of sub-staff, by putting them in the panel of temporary sub-staff. Only the persons, who had been sponsored through the employment exchanges and conforming to the age, educational and other qualifications, prescribed as per the Government Guidelines, could be selected to be included in the panel of temporary sub-staff, after getting the necessary approval from the zonal manager concerned. The petitioners had never been included in the panel of temporary sub-staff, as they did not fulfill the norms and the procedures prescribed for the selection of candidates to be included in the panel of temporary sub-staff, after the amalgamation had taken place, on 20.2.1990. https://hcservices.ecourts.gov.in/hcservices/ 18. The engagement of both, B.Neelakantan and R.Ramesh, had been done, unauthorisedly, at the branch level, without the knowledge and the permission of the higher authorities. When their unauthorised engagement had been found out, by the zonal office, they were disengaged from the position of casual workers. Their unauthorised engagement was on a day-to-day, casual basis and it was only for a limited number of days, when the permanent sub-staff attached to the branch office were on leave. They had never worked for a period of 240 days, as falsely alleged by them. Therefore, the question of their non- employment, contrary to the procedures prescribed under Section 25-F of the Industrial Disputes Act, 1947, would not arise. 19. The learned counsel appearing on behalf of the respondents had relied on the following decisions in support of his contentions: 19.1. In Ravichandran N.S. Vs. Management of Thanthai Periyar Periyar Transport Corporation and others (2003(I) LLJ 1015), it had been held as follows: "7. In this case, the workman is clearly a person who had been given casual employment by a branch manager who had no power to appoint him on regular service, but could appoint persons during emergency. There is no order appointing the petitioner to any permanent post, nor is there any record to show that he had worked continuously for 240 days. 8. When an employee claims protection under Section 25-F of the Act by pleading that he had worked for 240 days, the burden is clearly on the workman, and unless he discharged the burden, he cannot expect to have his case for protection under Section 25-F of the Act accepted......." 19.2. In Union of India and others Vs. Ilango (2005-I-LLJ 343), it had been held as follows: "40. When it is the case of the appellant, namely, the Government of Pondicherry that the writ petitioners' initial entry was unauthorised and they were not given the job as against the sanctioned post, which cannot be disputed by the counsel for the respondents, then, this Court cannot give such a direction for regularisation, promotion etc., even under sympathy. 41. Once we hold that the posts are non-existing or not subsisting, the question of termination without notice and without enquiry or the principle 'Last come, First go' would not arise, as they may not be the legal grounds to decide that the termination order is legal or not, especially, when the appointment order, as indicated above,