Case: Regional Manager, S.B.I Vs. Rakesh Kumar Tewari

2. The respondent was employed as a messenger on a daily wage in a branch of the appellant Bank. No appointment letter was issued to him but he worked for 87 days in that capacity. The question in this appeal is whether the Labour Court had correctly found that the termination of the respondents service in 1982 was violative of Section 25G of the Industrial Disputes Act, 1947 (referred to as the Act)3. After the respondent ceased to serve with the appellant on 5th October, 1982, the respondent raised a demand under Section 33-C (2) of the Act before the Labour Court praying for an amount of Rs. 148.74 towards his wages for 8 days holidays (including Sundays) which occurred during the period of his employment. The appellant accepted the demand and paid an amount of Rs.155.23 to the respondent which was accepted by the respondent in full and final satisfaction of his claim. About one year later, in 1984, the respondent raised an industrial dispute claiming that his services had been wrongfully terminated by the appellant. The Central Government referred the following disputes to the Industrial Tribunal:"Whether the action of the management of State Bank of India, Region-III, Lucknow, in relation to their Gonda Main Branch in terminating the services of Shri Rakesh Kumar Tewari, subordinate staff with effect from 6.10.1982 and not considering him for further employment under Section 25H of the Industrial Disputes Act is justified? If not, to what relief is the concerned workman entitled?"4. The respondent filed a statement before the Tribunal in which he claimed that he had been appointed by the appellant as a whole time employee against a vacancy in a permanent post. He said that after his discharge other employees were taken in service against the same post, but he was not given a chance to continue. He challenged the non-issue of appointment and termination letters as being in violation of "service conditions provided in different bank awards as well as bipartite settlement". It was alleged that the bank had violated the provisions of Section 25H of the Act and also paragraph 497 of the Shastri Award which was applicable to the Bank5. The appellant filed a written statement opposing the claim of the respondent. A preliminary objection raised was that after recording of full satisfaction of his claim against the appellant, the respondent was barred by the principles of res judicata from raising an industrial dispute. On the merits of the case it was contended that the services of the respondent had been validly terminated upon the payment of all his dues. It was denied that the respondent had been appointed against any vacancy. It was stated that he was engaged against a purely "temporary/ad hoc requirement of the said branch of the bank"6. The Labour Court found that two employees, namely, Shri Pawan Kumar and Rakesh Kumar Tewari had been appointed as temporary workmen, the first between August, 1982 to December, 1982 and the second from January, 1983 to April, 1983. It was held that therefore the service of Pawan Kumar should have been dispensed with and not the respondents. Furthermore, according to the Tribunal, there was a clear violation of Sections 25G and 25H of the Act. It was also held that the respondent was not a casual but a temporary workman in terms of paragraph 207 of the bipartite settlement. It was held that in terms of the settlement, the bank should have maintained a register of all temporary employees and a service book and should have issued an appointment and termination letter to the respondent. According to the Tribunal 14 days notice of retrenchment was also required to be given which had not been complied with. Section 25G of the Act and Rule 78 of the Industrial Disputes Act Central Rules was held to have been violated. Circulars issued by the Management being circulars Nos. 168/76 and 69/81 which prohibited the employment of temporary employees beyond 90 days and the termination of service of temporary employees after 89 or 90 days was held to be unfair labor practice. In conclusion it was held that the termination of the services of the respondent was illegal and inoperative and that the respondent was entitled to be reinstated with full back wages7. The appellant challenged the award under Article 226 of the Constitution before the High Court. The High Court upheld the view expressed by the Labour Court and said that the Labour Court was right and that the appellants appointment amounted to unfair labour practice and was against the mandate of Section 25H of the Act8. The appellant challenged the decision of the High Court by way of a Special Leave Petition under Article 136 of the Constitution. While issuing notice on 17th November, 2003, this Court stayed the operation of the High Courts order. In the meantime and during the pendency of the proceedings before the High Court the appellant has paid the respondent a sum of approximately Rs.3.80 lakhs under Section 17-B of the Act.

Reasoning: 23. The conclusion of the Tribunal in both appeals that the circulars endorsed an unfair labour practice being followed by the appellant or that the appellant had indulged in unfair labour practice was also incorrect. Unfair labour practice has been defined in Clause (ra) of Section 2 of the Act as a meaning any of the practices specified in the Fifth Schedule. The Fifth Schedule to the Act contains several items of unfair labour practices on the part of the employer on the one hand and on the part of workmen on the other24. We have already dealt with this issue in Raja Rams case (supra) where we had said:"before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years, as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. Besides, it needs to be emphasized that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondents case and the Labour Court erred in coming to the conclusion that the respondent was in the circumstances, likely to acquire the status of a permanent employee"25. We see no reason to take a contrary view particularly when the facts in Raja Ramas case are materially indistinguishable from those in the appeals now before us26. In directing reinstatement, neither the High Court nor the Tribunal had considered that the order might affect the interest of those others who were employed after the respondentAs was said in Central Bank of India vs. S. Satyam (supra):"The other persons employed in the industry during the intervening period of several years have not been impleaded. Third party interest have arisen during the interregnum. These third parties are also workmen employed in the industry during the intervening period of several years. Grant of relief to the writ petitioners (respondent herein) may result in displacement of those other workmen who have not been impleaded in these proceedings, if the respondents have any claim for re-employment"27. Besides in the second appeal admittedly several persons had been appointed prior to the respondent on a temporary basis. They would have prior rights to reemployment over the respondent on the basis of the principles contained in Sections 25G or 25H