CW 4143/05 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.4143/2005 Punjab National Bank Versus Anil Kumar Jain Date of Order : 19/01/10 Hon'ble Mr. Justice Ajay Rastogi Mr. Rajendra Arora, for petitioner-Bank Mr. RM Jain, for respondent-workman Instant petition is directed against Award dt.08/02/2005 (Ann.1) whereby Central Govt. Industrial Tribunal Jaipur answered Reference No.L-12012/88/2003 (IR(B-II) in affirmative in favour of respondent-1 holding action of Punjab National Bank (“petitioner- Bank”) terminating services of the workman as illegal & unjustified; accordingly directed petitioner-Bank to reinstate the workman with continuity of service without back wages. As alleged in statement of claim, the respondent-workman was engaged as Mini Deposit Collector under Mini Deposit Scheme of the petitioner Bank vide order dt.09/05/1977 – as per para (a) whereof he was asked to work as publicity cum-collection representative of the Bank on a commission of 2½% on the deposits collected by him – pursuant to which an agreement was executed between petitioner-Bank & the workman on 13/05/1977. Respondent workman CW 4143/05 //2// continuously worked with petitioner Bank under Mini Deposit Scheme till 03/07/89; and vide letter dt.03/07/89 (Ann.3) respondent workman was informed conveying communication of Sr. Regional Manager of Branch Jaipur vide letter dt.28/06/89 advising him not to open further fresh mini deposit account with immediate effect. However, it has come on record that respondent-workman was permitted to collect funds in old mini deposit accounts under the Scheme till 23/07/92 despite there being communication dt.03/07/89 (Ann.3) advising not to open new fresh accounts under mini deposit scheme – reference whereof has been made in para 29 of the Award impugned. At this stage when the workman was declined to open new accounts vide order dt. 03/07/89 (Ann.3), though practically he was prohibited to perform his duties and obviously, was excluded from opening new accounts & enhancement of collection under the Scheme and which practically amounted to termination; the workman challenged the same before civil court where he lost his case vide judgment dt. 20/11/1989; and thereafter he continuously made his representations (EX.W-39, W-40 & W-41) as referred to in para 29 of the Award; and CW 4143/05 //3// finally raised industrial dispute by way of filing application before Conciliation Officer in the year 2002. Ultimately appropriate Government made Reference for adjudication of the dispute ad infra: “Whether action of the management of Punjab National Bank in terminating services of Shri Anil Kumar Jain s/o Shri Ratan Lal Jain, Deposit Collector w.e.f. 03/07/1989 is legal & justified: if not, what relief is the disputant is entitled for ?” Petitioner Bank filed written statement raising objection that Reference having been made after an inordinate delay of 13 years itself dis- entitles the workman in seeking any relief apart from it on merits, it was submitted that the respondent is not a workman and since mini deposit scheme was not found to be viable in the year 1989; thus opening of new accounts there under was prohibited – pursuant to which workman was communicated vide letter dt. 03/07/89 advising him not to open new accounts; and that apart, mini deposit scheme stood closed w.e.f. 23/07/92, raising industrial dispute after inordinate delay of 13 years is abuse of process of law. On the pleadings of parties on record, learned Tribunal framed three issues ad infra: CW 4143/05 //4// I. Whether the workman was appointed as Mini Deposit Representative by the non- applicant Bank on 09/05/77, whose duties were of perennial nature and who continuously worked upto 03/07/89 ? BOA II. Whether the service of the workman was terminated w.e.f. 03/07/89 in violation of the provision contained under section 25-F of the Act and Rule 77 of the Central Industrial Rules, 1957 ? BOA III. Whether on account of raising the dispute belatedly the claim of the workman is liable to be rejected ? BONA As regards issue Nos.I & II, learned Tribunal finally held that the workman had worked from 09/05/77 till 03/07/89 as Mini Deposit Collector and in fact was permitted to collect funds of old accounts under mini deposit scheme till 03/07/1992 which showed that the workman was practically working with the petitioner Bank upto 03/07/1992 and it was finally held that Anil Kumar Jain was workman within the meaning of S.2(s) of the Act and his disengagement while advising him not to open new accounts w.e.f. 03/07/89 and thereafter complete disengagement w.e.f. 23/07/92 till which date, he was practically allowed to collect funds for old accounts under mini deposit scheme, it being retrenchment as having worked for more than 240 days in preceding 12 months from the date of alleged CW 4143/05 //5// termination & disengagement, petitioner-Bank has contravened provisions of S.25-F of the Act. As regards preliminary objection raised by petitioner Bank in regard to dispute having been raised belatedly, learned tribunal observed that initially workman challenged his termination/disengagement before Civil Court wherein he lost his case and at the same time, submitted various representations one after the other (Ex.W.37, W.39 to W.41) not only to the Ministry of Finance but also to the petitioner- Bank authority right from 12/01/93 till 30/03/1999 – reference whereof in details have been made in his affidavit appended to the statement of claim, to which there was no denial on behalf of the Bank, as taken note of in para 29 of the Award. Accordingly, learned Tribunal observed that the workman has endeavored to render an explanation of the delay caused in raising industrial dispute and it was not a case where lapse of time had caused fading or even eclipse of the dispute, and the dispute had remained alive during long interval, but the delay as such will not be fatal to adjudicate reference made and relief could always be moulded in the facts of each case. At the same time, there was no material CW 4143/05 //6// on record that the workman was out of employment pending adjudication of dispute under Reference after being disengaged from service, therefore, while answering Reference in affirmative in favour of workman holding action of petitioner-Bank in terminating his services, to be illegal being in violation of S.25-F of the Act, learned Labour Court further held that the workman is entitled to reinstatement with continuity of service but without back wages. It will be relevant to mention that after notices were served, at one stage on 11/05/06 after seeking instructions from petitioner Bank, Counsel submitted that the Bank is prepared to pay a lump sum compensation of Rs.One lac in lieu of reinstatement, but it appears that aforesaid offer was not acceptable to the workman; as such on next date on 29/05/06, this Court stayed the operation of impugned Award till disposal of the petition. Counsel for petitioner-Bank submits that services of the workman were terminated on 03/07/89 as is evident from letter (Ann.3) directing him not to open new accounts under Mini deposit Scheme and even if he had practically worked upto 23/07/92 to collect funds from old accounts holders under mini CW 4143/05 //7// deposit scheme; but since the Scheme, itself was finally closed, thereafter the workman had raised industrial dispute after almost 10 years while efflux of time had caused fading or even eclipse of the dispute; rather the dispute, itself having not remained alive had ceased to exist; therefore, interference having made by the Tribunal in an industrial dispute after 13 years is contrary to law laid down by Apex Court. In support, Counsel placed reliance upon decision of Apex Court in Steel Authority of India Ltd Vs. State of West Bengal (2009(2) SCC (L & S) 159) and of this Court in Divisional Forest Officer Vs. Raghuvar (2002(1) WLC 501). Counsel further submits that once mini deposit scheme being not viable, itself stood finally closed, even if this Court finally concludes that the Bank has violated provisions of S.25-F of the Act, there could not be reinstatement and a lump sum of Rs.One lac was offered by the Bank as compensation in lieu of reinstatement but was declined by the workman as is evident from order sheet dt.29/05/06. In the facts of the case, finding recorded by learned Tribunal while directing reinstatement of workman with continuity of service is totally perverse and deserves to be set aside. Counsel further submits that earlier in CW 4143/05 //8// Indian Banks Assoc. Vs. Workmen of Syndicate Bank (2001(3) SCC 36), the Apex Court held that Commission Agents/Deposit Collectors of Banks are workmen within the meaning of S.2(s) of the Act, which provides protection of ID Act; however, in subsequent judgment rendered on 28/02/2008 in A.P.Bank Deposit Collectors Assoc. Vs. State Bank of India (Transferred Case(C)Nos.79/2005, Apex Court finally observed that even if Bank deposit Collectors are held to be workmen but they are not entitled for regular absorption and if deposit scheme itself has been abandoned by way of policy decision, there cannot be said to be any infraction of S.25F of the Act. Counsel submits that in instant case, mini deposit scheme has come to an end and abandoned as is evident from communication dt.03/07/89 while he was advised not to open new accounts under the scheme; in such circumstances, once the Scheme, itself, was abandoned by petitioner Bank, even if respondent-workman is held to be workman U/s 2 (s), there cannot be said to be any infraction of S.25-F of the Act; and the findings recorded under Award impugned while holding impugned action of petitioner-Bank to be in violation S.25-F of the Act is totally perverse and CW 4143/05 //9// deserves to be set aside. Per contra, Counsel for respondent- workman while supporting the findings recorded by learned Tribunal under Award impugned, submits that there is no such limitation provided under the Act for raising industrial dispute and if there is any delay, certainly it has to be satisfactorily explained; while in instant case, respondent workman has placed material on record to justify the alleged delay in raising industrial dispute and taking note whereof, learned Tribunal being finally satisfied therewith about delay having caused in approaching the Tribunal; in such circumstances, in the absence of findings recorded while condoning the alleged delay and examining the dispute on merits, being perverse or not supported by any material on record, it does not call for interference by this Court. In support, Counsel placed reliance upon decisions of this Court in Satish Sharma Vs. Union of India (2002(2) RLR 336 (DB)), Ram, Bharos Khawad Vs. State (2006(1) wLC (Raj) 317 (DB) and also of Apex Court in State of Punjab Vs. Anil Kumar (2007(9) SCC 663). Taking assistance whereof, Counsel submits that while the dispute having remained alive during long CW 4143/05 //10// interval though not galvanized by the workman or the Union due to other justified reasons, it does not cause the dispute to wan into total eclipse; as such no error has been committed by the Tribunal in rejecting preliminary objections raised by petitioner Bank about delay in raising dispute. Counsel further submits that those having been appointed by the Bank as Commission Agent/Deposits Collector, although were not held to be regular employees but in Indian Banks Assoc. Vs. Workmen of Syndicate Bank (2001(3) SCC 36) were held by Apex Court as workmen within the meaning of S.2(s) of the ID Act; as such are entitled to seek protection of ID Act. Counsel further submits that once the workman has worked for more than 240 days in preceding 12 months of his termination, action of the petitioner Bank in terminating his services is held to be in violation of S.25-F of the Act, as a consequence whereof, no error has been committed by learned Tribunal in awarding reinstatement of workman with continuity in service. Counsel for workman vociferously submits that both, present workman & one Krishna Kr. Taneja, while working as Deposits Collector under mini deposit scheme under CW 4143/05 //11// petitioner-Bank’s Branch at Alwar & Bharatpur respectively, were terminated from service and while KK Taneja raised industrial dispute against petitioner Bank and Reference was answered in affirmative holding his termination to be bad in law being violative of S.25-F of the Act, he was held to be entitled for reinstatement with continuity in service with full back wages vide Award dt.21/11/1996 passed by Tribunal, in CIT-18/1992 – against which petitioner Bank filed CWP-2384/99 which was dismissed vide order dt.21/09/2001 in the light of in Indian Banks Assoc. Vs. Workmen of Syndicate Bank (2001(3) SCC 36) and in compliance whereof, KK Taneja was reinstated in service in terms of the Award as Deposit Collector under mini deposit scheme as is evident from letter (Ann.R/1/3) produced alongwith reply; and pursuant to which he was allowed to perform duties of Deposit Collector under aforesaid scheme as is evident from letter dt.01/04/2002 (Ann.R/1/4) and since then he is presently working as Deposit Collector under mini deposit scheme at Bharatpur and this fact has not been disputed by Counsel for petitioner Bank; in such circumstances different standards can not be adopted by petitioner Bank; more-so when both are CW 4143/05 //12// similarly situated; and denial of reinstatement in case of respondent workman herein is certainly in violation of Art.14 of the Constitution. In support, Counsel for workman placed reliance on the decision of Apex Court in Birla Corpn. Ltd Vs. Commissioner of Central Excise (2005(6) SCC 95) and of this Court in Radha Krishna Sharma Vs. Raj. Fin. Corpn (1986 RLR 518) and in Bhagirath Singh Vs. Sikar Kendriya Sahakari Bank Ltd (2008 WLC(UC) 216 (DB). This Court has considered rival contentions of both the parties and with their assistance, examined material on record. As regards preliminary objections raised by petitioner Bank in their written statement about alleged delay in raising industrial dispute, suffice it to say that there is no limitation provided under Section 10 of the ID Act and the words, “at any time” used in S.10 prima facie indicates about a period without boundary. It has been examined by Apex Court in Sapan Kumar Pandit Vs. UP State Electricity Board (2001 LLR 900) which has been taken note of by this Court (DB) in Ram Bharos Kharwad Vs. State (2006(1) WLC (UC) 316) & Satish Sharma Vs. Union of India (2002(2) RLR 36) and in CW 4143/05 //13// which Apex Court had occasion to interpreted S.10 and finally observed that Reference should not have been quashed merely on the ground of delay and long delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief and it was a case of industrial dispute for adjudication raised after 15 years, which was not considered to be sufficient to deprive claim of workman and in para 12 of the decision observed ad infra: “There are cases in which lapse of time had caused fading or even eclipse of the dispute, if no body had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wan into total eclipse.” Taking note whereof, the Apex Court further examined industrial dispute raised after 13 years in State of Punjab Vs. Anil Kumar (2007 (9) SCC 663) and in view of factual position brought on record, though did not find any infirmity in the Award of Labour Court duly affirmed by High Court as regards entitlement CW 4143/05 //14// of workman for reinstatement but at the same time, observed that the fact of belated approach cannot be lost sight of in regard to payment of back wages if the dispute remains alive and has not faded with passage of time and certainly the relief can be moulded by adjudicatory authority while answering the Reference. In the instant case, the workman came with reasonable explanation of having earlier approached civil court and thereafter having made several representations duly taken note of by learned Tribunal in para 29 of Award impugned and the delay being satisfactorily explained of belatedly raising industrial dispute after 10 years, learned Tribunal has finally observed that the workman has endeavoured to render explanation of the delay in question and finally moulded relief curtailing back wages of workman while answering the Reference. This Court does not find any manifest perversity in the findings recorded by learned Tribunal while examining the preliminary objection about alleged delay in question, which does not require any interference by this Court. As regards submission made by Counsel for petitioner Bank that mini deposit scheme CW 4143/05 //15// itself has come to an end from 03/07/89, suffice it to say that there is no material placed on record either before learned Tribunal or this Court to substantiate closure of the scheme. However, letter dt.03/07/89 referred to by petitioner-Bank having been communicated to workman only discloses that the workman was advised not to open new accounts under mini deposit scheme but indisputably, he was allowed to collect funds for depositing in old accounts opened under mini deposit scheme till 23/07/92. That apart, in case of similarly situated workman namely Krishna Kumar Taneja who too was terminated from service while working as Deposit Collector under mini deposit scheme of petitioner Bank at its Branch Bharatpur, indisputably was reinstated in service in terms of Award dt.21/11/1996 (Ann.R.1/2) passed in CIT-18/1992 wherein the Tribunal finally answered the Reference in affirmative ad infra: “20.उÈ त आंकलन के आधार पर इस ǒववाद का अिधिनण[य इस ूकार Ǒकया जाता है Ǒक ूाथȸ ौिमक औƭोिगक ǒववाद अिधिनयम, 1947 कȧ धारा 2 (एस) के अनुसार पǐरभाǒषत ौिमक है तथा ǒवप¢ी बɇक Ʈारा पऽ ूदश[ डबã यु-1 Ǒदनांक 23- 11-89 के आधार पर उसकȧ सेवाए समाÜ त करना Û यायोिचत नहȣं है अत: उÈ त आदेश को अपाः त Ǒकया जाता है ूाथȸ ौिमक कं ण कुमार तनेजा िनयोजक कȧ सेवा मɅ पुन[िनयोजन का अिधकारȣ है तथा बकाया वेतन के Ǿप मɅ Ǒदनांक 23:11:89 से पुन[िनयोजन कȧ Ǒदनांक तक 100/- Ǿपये ूितमाह कȧ दर से CW 4143/05 //16// रािश ूाÜ त करने का भी वह पाऽ है " Against which, petitioner Bank filed CWP- 2384/99 which was dismissed by this Court vide order dt.21/09/2001 as having rendered infructuous in view of statement of Counsel for petitioner-Bank that the Bank has decided to give benefits of the Award as per the guidelines given by Apex Court in case of Indian Banks Association therefore, he did not press the writ petition any further. In compliance whereof, Krishna Kr. Taneja was reinstated vide order (Ann.R.1/3) and was allowed and authorized to collect deposits under mini deposit scheme as is evident from letter dt.01/04/2002 (Ann.R/1/4) and since then he is working as Deposit Collector under mini deposit scheme. Thus submission made by Counsel for petitioner Bank that the scheme has come to an end, in the facts of the case is not supported by material on record and deserves to be rejected. In the opinion of this Court, once two persons similarly situated like respondent- workman & Krishna Kumar Taneja who were working as Deposits Collector with petitioner Bank though at its two different Branch one at Alwar and another at Bharatpur and on termination, one being reinstated in service in terms of the CW 4143/05 //17// Award and is presently working under mini deposit scheme, and another is not being treated at par despite the Award is in his favour for reinstatement with continuity of service, the petitioner Bank cannot be held to be justified in adopting different standards and taking contrary stand in case of similarly situated respondent workman and that certainly denied the legitimate claim of the respondent workman. As regards submission made by Counsel for petitioner Bank in view of latter judgment of Apex Court in A.P.Bank Deposit Collectors Assocn. Vs. State Bank of India (Transferred case (C) Nos.79/2005 decided on 28/08/2008), it is of no substance for the reason that it was a case where State Bank of India took a policy decision vide its circular dt.04/06/2001 to discontinuing with Janata Deposit Scheme and taking note whereof, the Apex Court observed that if the Bank has taken pending decision to discontinue or abandon the scheme, there could not be any reinstatement even if there was any infraction of S.25F of the Act but they are entitled for compensation. However, in instant case, no such policy decision has been placed on record to discontinue the mini deposit scheme at the same time, person similarly CW 4143/05 //18// situated namely Krishna Kr. Taneja has been reinstated in service on his termination being held in violation of S.25-F of the Act in terms of the Award under the same mini deposit scheme as is evident from letter dt.01/04/2002 (Ann. R/1/4); as such no inference can be drawn from letter dt.03/07/89 (Ann.3) that mini deposit scheme has come to an end or it has been abandoned by the petitioner Bank, while it only discloses that as per letter dt.28/06/89 of Sr. Regional Manager, Jaipur Branch, workman respondent herein was advised not to open new accounts under mini deposit scheme inasmuch he was allowed to collect funds for deposits in old accounts under the scheme. In such circumstances, once respondent has been held to be workman within the meaning of S.2(s) of ID Act, as observed in Indian Banks Assoc. Vs. Workmen of Syndicate Bank (2001(3) SCC 36) as having worked for more than 240 days in preceding 12 months on the alleged date of termination, certainly there was infraction of S.25-F of the Act and if similarly situated person (Krishna Kr. Taneja) has been reinstated in service as Deposit Collector and is continuing under mini deposit scheme, this Court does not find any perversity in the finding recorded by learned Tribunal in CW 4143/05 //19// answering Reference affirmatively in favour of workman for his reinstatement with continuity of service under the Award impugned and there is no manifest error being committed which may call for interference of this Court U/Art.226 & 227 of the Constitution. Consequently, writ petition fails and is hereby dismissed. Since respondent workman is out of employment for sufficient long time, petitioner Bank is directed to implement the Award impugned within three months. No costs. (Ajay Rastogi), J. K.Khatri/p.19/ 4143CW05Jn19Rsr.doc