IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6232 of 2003 Sudha Ratna Singh son of Sri Umapati Narayan Singh, resident of P.R.D.A. No. B4/304 near A.N.College, Sri Krishnapuri, Police Station Sri Krishnapuri, District- Patna --- Petitioner. Versus 1. The Union of India, through the Secretary, Ministry of Labour Shramsakti Bhawan, Parliament Street, New Delhi. 2. Presiding Officer, Central Govt. Industrial Tribunal- cum-Labour Court No.1, Dhanbad (Jharkhand) 3. Assistant Labour Commissioner (Central) Mauryalok Complex, New Dakbunglow Road, Patna – 800001. 4. State Bank of Bikaner & Jaipur (A subsidiary of State Bank of India) Head Office, Tilak Marg, C-Scheme Jaipur, Rajasthan. 5. The Branch Manager, State Bank of Bikaner and Jaipur, R-Block Branch, Patna. – Respondents. ********* For the Petitioner: Mr. Abhay Kumar Singh, Sr. Advocate. For Union of India : Mr. Binay Kumar Pandey, CGC. For the Bank : Mrs. Nilu Agrawal with Mr. Manoj Kumar, Advocates. ******* O R D E R 12/ B.P.Verma,J: The petitioner has approached this Court under Article 226 of the Constitution of India by filing the present writ petition challenging the validity of the Award dated 01.03.2002 (Annexure-14) passed in Reference No. 92 of 1993 by the learned Presiding Officer, Central Government Industrial Tribunal No.1, Dhanbad, whereby the claim of the workman, petitioner herein, has been negatived and his disengagement or termination from service of the respondent- Bank has been held to be justified. The petitioner also prays for a direction for his reinstatement in the service of respondent-Bank with all back wages. 2 Learned counsel appearing on behalf of the petitioner has made an alternative prayer that if the claim of the petitioner for his reinstatement with back wages is not accepted by this Court in the given facts of the case, then in that event, the respondent-Bank may be directed to suitably compensate the petitioner by giving him adequate compensation. 2. It is admitted case of the parties that petitioner was appointed/ engaged on the post of Clerk- cum- Cashier on 17.12.1984 of the respondent-Bank at its R- Block Branch, Patna. He was allowed to work on the said post till 06.03.1985 and was removed/terminated/ retrenched w.e.f. 07.03.1985 without any notice. Only controversy regarding his employment is that according to the petitioner, he was appointed on the permanent post on permanent basis by following the procedure prescribed under law by the competent authority, whereas according to respondent no. 4 and 5, the petitioner was appointed on a purely temporary post on temporary basis by the respondent- Branch Manager, who was not legally authorized to make such appointment. 3. Mr. Abhay Kumar Singh, learned Senior counsel appearing on behalf of the petitioner has assailed the validity and legality of the impugned Award dated 01.03.2002 (Annexure-14) primarily on the ground that 3 the petitioner was engaged/ appointed on the post of Clerk-cum- cashier and he was allowed to work for 80 days under the respondent-Bank and his removal/ termination from service, without notice or any valid justification, would come under the meaning of section 2 (oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” only). It is also argued that in view of the admitted position that the petitioner was allowed to work on the post of Clerk-cum-cashier for 80 days under the respondent-Bank, his retrenchment without any notice and consequential actions of the respondent Bank (Management) are in complete violation of sections 25G and 25H of the Act. According to him, Rule 77 and 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as “the Rules” in short) have also been violated by the respondent-Bank. In the same vein, it is submitted that retrenchment of the petitioner from service will be deemed to be unfair labour practice adopted by the respondent- Bank. Therefore, it is submitted that the impugned award is not sustainable in the eye of law and petitioner is entitled to be reinstated on the post with all back wages. 4. Mrs. Nilu Agrawal as also Mr. S.D. Sanjay, learned Advocates, appearing on behalf of respondents no. 4 and 5, in their elaborate submissions, have supported 4 the impugned award dated 01.03.2002 as also the impugned actions of the Respondent No. 4 and 5 and have submitted that the present petition is fit to be dismissed, as the petitioner is not entitled to get any relief from this Court in the given facts and circumstances of this case. It is also submitted by learned counsel appearing on behalf of respondent no. 4 and 5 that as a matter of fact, the petitioner was appointed on a purely temporary post for a fixed period and after completion of 80 days, his contract of service was not renewed by the respondent- Bank, therefore, it is not a case of retrenchment and the case of the petitioner is squarely covered by the exception enumerated in Sub-Clause- (bb) of Section 2 (oo) of the Act. It is further argued that since the petitioner has not completed the service of one year in one calender year prior to his termination, there is no question of violation of Section 25F of the Act and as such he cannot claim for his reinstatement with back wages. 5. Before considering the rival points urged on behalf of the parties, it would be relevant to give some undisputed relevant facts occurring in the present case. It appears that after removal of the petitioner from service, he represented before the Assistant Labour Commissioner (Central), Patna for conciliation of dispute on 06.04.1987 (Annexure-2). Where-after the conciliation proceeding was 5 started on 15.04.1987 in terms of section 12 of the Act. Both parties were directed to appear on 27.04.1987 by the Assistant Labour Commissioner (Central), Patna by letter dated 15.04.1987(Annexure-3). The matter was adjourned on certain dates, but finally conciliation proceeding failed and it was communicated by letter dated 28.12.1987 (Annexure-4) to the Secretary, Government of India, Ministry of Labour, New Delhi. 6. It further appears that the petitioner as also few other removed/retrenched workmen of the respondent- Bank raised industrial dispute before the Central Government and prayed for reference of the same to the Industrial Tribunal/ Labour court in terms of section 10 of the Act. However, by communication dated 3rd March, 1988 (Annexure-5) the Desk Officer of the Ministry of Labour, Government of India refused to refer the industrial dispute to an Industrial Tribunal. Aggrieved by the aforesaid communication of the Central Government, C.W.J.C. No. 3025 of 1998 was filed by one Giridhar Gopal Tiwari and 14 others before this Court. After hearing the parties the aforesaid writ petition was allowed by a Division Bench of this Court by judgment and order dated 13th September, 1991 (Annexure-6) directing the Union of India in the ministry of Labour to refer the industrial dispute raised by the workmen to an appropriate 6 Industrial Tribunal in terms of section 10(1) of the Act within a period of one month. Admittedly, the petitioner was not a party in that proceeding. However, in the light of aforesaid judgment and order dated 13th September, 1991, industrial dispute raised by the removed employee of the Respondent Bank was referred to an Industrial Tribunal, at Dhanbad, which was finally answered in favour of the workmen by an Award dated 26th May, 1995 (Annexure-7). In the meantime, petitioner also approached this Court by filing C.W.J.C. No. 1376 of 1993 against the order dated 3rd March, 1988 (Annexure-5) of the Central Government refusing to refer the industrial dispute to an Industrial Tribunal. That writ petition was allowed by a Division Bench of this Court by order dated 13.08.1993 (Annexure- 13) with a direction to the Union of India, Ministry of Labour to make reference under section 10(1) of the Act to any Industrial Tribunal. In compliance of the order and direction of this Court, by a notification dated 26.08.1993, the Central Government, Ministry of Labour, in exercise of powers under sections 10(1) (d) and section 10(2A) of the Act, referred the industrial dispute raised by the petitioner to the Central Government Industrial Tribunal No.1, Dhanbad for adjudication. Where-after Reference no. 92 of 1993 was registered and finally has been answered by the impugned award dated Ist March, 2002(Annexure-14), 7 negating the claim of the petitioner and justifying the action of the respondent- Bank. Being aggrieved by the aforesaid award, the petitioner has approached this Court in the present proceeding. 7. Learned Industrial Tribunal in its exhaustive Award has come to a finding that the workman/petitioner worked under the respondent-Bank for 80 days. However, before the learned Tribunal neither the petitioner nor the management produced the letter of appointment. According to the petitioner a letter of appointment was issued to him, but before removing him from service that letter of appointment was taken back by the respondent- Branch Manager of the Bank for the purpose of its examination and thereafter it was never handed over to him. The respondent- Bank though did not dispute the factum of employment of the workman for 80 days, but it was pleaded that originally the workman was engaged for 30 days and that period was extended and continued upto 80 days. According to the respondent-Bank, the letter of appointment of the workman was not traceable in the records of Bank; therefore, it could not be produced before the learned Industrial Tribunal. 8. Before the Industrial Tribunal also, on behalf of the workman plea of violation of sections 25G, 25 H of the Act and Rules 77 and 78 of the Rules as also the 8 violation of the mandate of para- 522(4) of the Shastri Award were raised and on these pleas, it was sought to be established that it was a case of retrenchment under the meaning of section 2(oo) of the Act. It was also pleaded that action of management amounts to unfair labour practice as defined under the provision of the Act and detailed in 5th schedule of the Act. 9. On the basis of pleadings, the respondent- Management tried to establish that the case of the petitioner is squarely covered by the exception contemplated under Sub-Clause (bb) of section 2(oo) of the Act, which came into force w.e.f. 18.08.1984. Evidences were also led by the parties in support of their respective cases. Learned Industrial Tribunal, after considering the evidence adduced by the parties and materials available on record, came to a finding that the workman (petitioner) worked under the respondent-Bank on the post of Clerk- cum-cashier w.e.f. 17.12.1984 till 06.03.1985, but in absence of the production of the letter of appointment by the parties, it came to conclusion that the case of the petitioner/ workman is covered by the exception contemplated under Sub-Clause-(bb) of section 2 (oo) of the Act and consequently answered the Award in favour of the management. 10. In order to appreciate the points urged on 9 behalf of the parties and in order to test the validity and legality of the impugned award, the provisions, contained in sections 2(oo), 2 (s), 2A, 25G, 25H of the Act would be relevant and are reproduced herein below for ready references: “2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- 2(oo)- “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (a) voluntary retirement of the workman; or (b) 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; or [(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or ( c ) termination of the service of a workman on the ground of continued ill-health;] 2[(s)- “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether 10 the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]” “[2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute:- [ (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or 11 difference between that workman and his employer connected with , or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.] [(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty- five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.] [(3) The application referred to in sub- section(2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).]” “25G. Procedure for retrenchment.- 12 Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.” “25H.Re-employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity [ to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen] who offer themselves for re-employment shall have preference over other persons.” 11. Section 2 (oo) of the Act defines retrenchment. Termination of an employee by the employer from the service for any reason, excepting 5 exceptions given therein has to be treated as retrenchment. Section 2 (s) of the Act defines the workman and certain services have been excluded from the application of section 2(s) of the Act. Obviously the respondent-Bank is not in the category of excluded service. The question raised on behalf of the petitioner that he was appointed on the post of 13 clerk-cum-cashier by the competent authority on permanent basis could have been easily rebutted by the respondent-Bank by producing the relevant records and the letter of appointment. In the supplementary counter affidavit filed on behalf of respondent no. 4 and 5, the deposition of Branch Manager of the respondent-Bank has been brought on record as Annexure-A and policy decision of the respondent-Bank dated 19th July, 1984 has been brought on record as Annexure-C to the aforesaid supplementary counter affidavit. According to deposition of the Branch Manager also the petitioner was in the service of the Bank on the post of Clerk-cum-cashier for 80 days. From the policy decision/ letter dated 19th November, 1984 also it appears that practice of making appointment by the Branch Manager at the relevant time was prevalent under the Respondent Bank. Therefore, it was incumbent upon the management to produce the relevant records to show that as a matter of fact, the appointment of workman/petitioner was on contract basis and for a limited period. The Apex Court in the case of S.M.Nilajkar and others v. Telecom District Manager, Karnataka reported in (2003) 4 SCC 27, while discussing the ambit of section 2 (oo) of the Act in relation to certain exceptions has been pleased to hold in paragraph-14 of the judgment that even in the case of engagement of a workman as daily 14 wager and to bring it within the ambit of Sub-clause 2(bb) of section 2(oo) of the Act onus lies upon the employer to prove its case that it was not a case of retrenchment. Paragraph-14 of the aforesaid judgment is relevant in the context of the present case and is reproduced herein below : “14. “The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of the employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of sub-clause (bb) abovesaid. In the case at hand, the respondent employer has failed in 15 alleging and proving the ingredients of sub- clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment.” 12. In the present case despite admission of the fact by the management that the petitioner worked for 80 days, but apparently no documents/materials were produced by the respondent-Bank either before the Tribunal or before this Court to show that employment of the petitioner was purely contractual and for a limited period. Obviously the management has failed to discharge its duty and has failed to prove its case. Consequently, the termination of the petitioner has to be held as a retrenchment under section 2(oo) of the Act in the light of the judicial pronouncement of the Apex Court, referred to above. 13. In the present case, no plea can be taken even on behalf of the workman that there has been infraction of section 25F of the Act in view of the admitted position that the workman had worked only for 80 days under the respondent-Bank. However, in the case of retrenchment, the mandate of section 25G and 25H are required to be complied with by the employer/ 16 management. It has been pleaded in the writ petition and not specifically denied by the respondents that even after termination of the petitioner from service, some persons, junior to him, were engaged by the respondent-Bank. It also appears that principle of „last come first go‟ has not been followed in the present case. In that background it has to be held that though there has been no violation of section 25F of the Act, but there has been violation of section 25G and 25H of the Act. 14. Recently the Apex Court in the case of Harjinder Singh Vs. Punjab State Ware-Housing Corporation, reported in (2010)3 SCC 192, while considering the scheme and scope of section 25F and 25G of the Act, has been pleased to hold in paragraph 16 of the judgment that for attracting the applicability of section 25G of the Act, the workman is not required to have worked for 240 days preceding his termination. In that case termination of service of a workman in contravention of section 25G of the Act was held to be illegal by the learned Tribunal and the workman was directed to be reinstated with 50% back wages. However, on the petition filed by employer before the High Court, though the order of retrenchment of a workman was not approved by a learned Single Judge of the High Court, but instead of reinstatement, employer was directed to pay a 17 compensation of Rs. 87,582/- to the emplyee. The Apex Court, after taking into consideration all the relevant judgments on this issue, restored the order of the Tribunal with a cost of Rs. 25,000/- awarded against the employer. 15. Learned counsel appearing on behalf of respondent-Bank by referring to certain judgments of this Court as also the Apex Court, has submitted that even if there has been infraction of section 25G and 25H of the Act, since the petitioner has not completed the requisite days of work of 240 days and there has been no violation of section 25F of the Act, the petitioner cannot claim reinstatement in service with back wages. Specific reliance has been placed on a judgment of the Apex Court in the case of Haryana State Agriculture Marketing Board vs. Subhash Chand,reported in 2006(2) P.L.J.R.(SC)189. 16. Identical issues, as involved in the present case, came up for consideration before the Apex Court in large number of cases in the recent times and now it is a consistent view of the Apex Court that even if there has been infraction of sections 25F, 25G and 25H and other related provisions of the Act and rules made there-under, in that case also, there cannot be automatic reinstatement of the workman in service with back wages. It has now consistently been held that in lieu of reinstatement of a 18 workman and in lieu of his back wages, appropriate amount of compensation be awarded to the workman and for coming to that conclusion different factors are required to be taken into consideration by the Tribunal/ Court. Recently the Apex Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and another, reported in (2009)15 SCC 327 delineated different judgments of the Apex Court and has laid down the law in this field in paragraph 7,14 and 17, which are being reproduced herein below: “7. It is true that the 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 a long line of cases, this Court has consistently taken the view that relief by way