IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.7363 of 2000 The Management of Central Bank of India, rep. By its Regional Manager P.B.No.377, Raheja Complex, III Floor, 834, Anna Salai, Chennai-600 002. .. Petitioner Vs. 1.The Presiding Officer, Industrial Tribunal of Tamil Nadu, Chennai. 2.The Workman, rep. By the General Secretary, Central Bank of India Staff Union, 56, Canal Bank Road, C I T Nagar, Chennai-600 035. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in ID No.83 of 1998 and quash its award dated 21.10.1999. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. For Respondents : Mr.K.M.Ramesh for R2 ORDER The petitioner is the management of Central Bank of India represented by its Regional Manager. The petitioner has filed the present writ petition aggrieved by the Award passed by the first respondent Industrial Tribunal in I.D.No.83/98 and seeks for setting aside the Award, dated 21.10.1999. https://hcservices.ecourts.gov.in/hcservices/ 2.By the impugned Award, the first respondent Industrial Tribunal directed the appointment of one R.Kanagaswamy as a permanent sub staff from 30.3.1991, which is the date on which four other candidates were appointed by the Bank. The Bank was also directed to pay full wages with continuity of service and other attendant benefits. The writ petition was admitted on 12.6.2000. Pending the writ petition, this court granted an interim stay with a condition to the petitioner bank to deposit full backwages. Subsequently, a vacate stay petition was filed by the second respondent trade union in WMP Nos.18220 of 2000 along with WMP No.18221 of 2000 for a direction. This court by an order, dated 8.3.2001 noted that an amount of Rs.3,60,000/- was already deposited to the credit of the ID and the interim stay was made absolute with a condition that the management should comply with Section 17-B of the ID Act by paying last drawn wages to the workman Kanagaswamy. Out of the amount in deposit, the workman was permitted to withdraw Rs.60000/- and the balance amount of Rs.3,00,000/- was directed to be deposited in any one of the branches of the petitioner bank for a period of three years. The workman's monthly wages was quantified as Rs.1707/- and payment was to be made from April, 2001 and arrears of Rs.18,780/- on that account was directed to be paid to the workman. 3.Subsequently, the union filed a modification application in WMP No.28779 of 2004. When that application came up, this court by an order dated 1.11.2004 modified the order and allowed the workman to withdraw another Rs.50000/- and the rest of the amount was directed to be kept in fixed deposits. When the matter came up for hearing on 21.10.2009, it was informed to this court that both parties were attempting for an out of court settlement. Therefore, the matter was adjourned from time to time. While the workman was willing to forego 50% of backwages as ordered by the Tribunal, the management by a letter dated 12.10.2009 was willing for a compromise if the workman was willing to forego his full backwages. In view of difference of opinion between the parties, compromise could not be effected and the matter was argued. 4.Mr.S.Ravindran learned counsel for the petitioner bank contended that the impugned Award of the Tribunal suffered from manifest irregularity, inasmuch as what was referred for adjudication was not considered, but the impugned Award came to be passed. The reference order clearly stipulated that the Tribunal should decide whether the action of the management bank in not allowing the workman Kanagaswamy for written test even after issuing the hall ticket was legal and proper. Whereas the Tribunal by its impugned Award not only did not adhere to the terms of reference in terms of Section 10(4) of the ID Act, but straightaway directed his reinstatement with backwages. Any selection has to be made only by the bank that too after examination. But, in the present case, the direction given by the tribunal in the impugned Award is totally without jurisdiction https://hcservices.ecourts.gov.in/hcservices/ and the Tribunal cannot act as the appointing authority. First of all, there was no termination so as to enable the tribunal to reinstate the workman that too with full backwages. 5.However, it must be noted that it is not the case of any individual non employment, but a collective dispute raised by the second respondent union. When the examination held for recruitment of sub staff and when the workman was given hall ticket, but he was prevented from appearing for examination, it will be too late for the Tribunal to direct the bank to recruit the workman after he underwent another test. On the other hand, having regard to the nature of post and the lis between the parties, the tribunal can consider the true scope of the order of reference. Under Section 10(4) of the ID Act, the tribunal can decide matters incidental to the points of dispute for adjudication. The court has held that in Minimax Vs. Its Workers reported in 1968 (1) LLJ 369 that the industrial adjudicator must attempt to consider the reference not too technically or in a pedantic manner, bur fairly and reasonably. 6.A similar view was expressed in Express Newspapers Vs. Workmen and Staff reported in 1962 (2) LLJ 227. The Tribunal in a given case can look into the pleadings of the parties to find out the exact nature of dispute because in most cases the order of reference is so cryptic i.e. impossible to cull out the issue about which parties are at variance leading to trouble as held by the Supreme Court in Delhi Cloth & General Mills Co. Ltd. v. Workmen reported in AIR 1967 SC 469. 7.Therefore, in the present case, the tribunal kept itself well within the ambit of reference and had approached the issue in a correct perspective. The Tribunal found in paragraph 11 of the Award that as per Ex.W.7 settlement and Ex.W.8/Ex.M.9 circulars, all temporary employees who worked for 60 days on temporary basis should have been called for test. They did not call the workman Kanagawamy to appear for test. The contention that they have received Ex.W.8/Ex.M.9 much after the recruitment was not accepted, since no proof was produced by the Bank. In fact, the tribunal indicated the terms of settlement in Ex.W.7 itself clearly indicated the course to be adopted and it does not require any further circular. Therefore, it held that the workmen not being called for test was not justified. The contention that persons who were selected were seniors to the petitioner was also rejected. It was found that it was a lame excuse. Even on the question of seniority, the tribunal held that Dellirani and Parimala who were far juniors to the non selected candidates, but were selected on the basis of test and interview and on the basis of merit. Therefore, the introduction of seniority principle was not accepted. The tribunal found that if the workman was given permission to write examination on 7.11.1990 or 26.3.1991, he would have got an opportunity to prove his ability and his chance of success was not ruled out. In the hall ticket issued to the workman on 14.2.1990, it https://hcservices.ecourts.gov.in/hcservices/ was indicated that the date and venue for the proposed test was to be intimated to him. But they failed to notify the date and venue of the examination. It is under these circumstances, the Tribunal after finding that the workman was already 39 years old and that he cannot seek employment elsewhere because of his age and recruitment norms, gave its Award. By the impugned Award, dated 21.10.1999, it had directed his reinstatement rather ordering for any further test and put the workman for a further agony. This court do not find any infirmity or illegality in the impugned Award. 8.As per the correspondence produced, the difference between the parties was only with regard to the quantum of backwages. While the bank was willing to consider his reinstatement provided he agreed to forego full backwages, but the workman was ready to forego 50% of backwages. Therefore, the question that arises for consideration is whether this court can modify the Award by exercise of power under Article 226 of the Constitution of India having regard to the difference of opinion of parties on the issue on hand. 9.While this court is not willing to modify the Award with reference to reinstatement, on the question of backwages, it calls for interference. The Supreme Court vide its judgment in RAJASTHAN LALIT KALA ACADEMY Vs. RADHEY SHYAM reported in 2008 (13) SCC 248 has held that even in case of illegal termination, the court can order reinstatement with full backwages, which is a normal rule. While doing so, several other factors such as nature of employment being adhoc, daily wage, temporary can also be taken into account. 10.Ultimately, as held by the Supreme Court in LAXMI RATTAN COTTON MILLS LIMITED Vs. STATE OF UTTAR PRADESH AND OTHERS reported in 2009 (1) SCC 695, the courts in the matter of backwages must attempt to strike balance. 11.In the light of the above, this court is of the view that the petitioner had already got Rs.1,10,000/- by virtue of interim order of this court and also is getting monthly wages in terms of Section 17B of the ID Act and therefore, he is not eligible for any further payment and that will be confined to the backwages payable pursuant to the Award. However, the workman Kanagaswamy shall be reinstated with continuity of service and will be given notional pay fixation from the date of the Award till this date and continued to be paid wages. But he shall be paid wages on par with the similar placed workmen and his entire services shall be counted for all practical purposes. The amount already paid as backwages will be sufficient to satisfy the claim of the workman. The balance amount lying in the deposit shall be withdrawn by the petitioner bank. The petitioner bank is directed to implement the Award within a period of eight weeks from the date of receipt of the copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 12.In the light of the above, the writ petition will stand partly allowed. However, there will be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk To The Presiding Officer, Industrial Tribunal of Tamil Nadu, Chennai. Copy to : The Section Officer, V.R.Section, High Court, Madras. + 1 CC to M/s.T.S.Gopalan & Co.,,Advocate,SR.40389 + 1 CC to Mr.K.M.Ramesh,Advocate,SR.40505 W.P.NO.7363 OF 2000 TAM(CO) EM/15.6.10 https://hcservices.ecourts.gov.in/hcservices/