Allahabad High Court
Baijnath vs Central Bank Of India And Others on 27 July, 2021
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Case :- WRIT - A No. - 20791 of 2010
Petitioner :- Baijnath
Respondent :- Central Bank Of India And Others
Counsel for Petitioner :- Juned Alam,J.B.Singh
Counsel for Respondent :- Himanshu Tewari,Rahul Sahai,S.C.,Vishnu Pratap
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Rajul Sahai for the contesting respondents.
The principal relief which is claimed on this petition reads thus:-
"To issue a Writ, order or direction in the nature of Mandamus directing the respondent No. 1 to regularise the Petitioner on the suitable post w.e.f. date the Petitioner is entitled to be regularised and to pay the entire arrear of salary and other allowances payable to the post within the period stipulated by this Hon'ble Court."
Admittedly the petitioner was engaged as a Clerk on daily wage basis in the respondent Bank. His services came to be dispensed with on 30 January 1993. The aforesaid action led to the reference of a dispute to the Industrial Tribunal under the provisions of the Industrial Disputes Act 1947. That reference came to be answered in favour of the petitioner with the Tribunal holding that the petitioner had worked for more than 240 days in a calendar year and retrenchment came be affected without complying with the provisions of Section 25F of the Act. It accordingly proceeded to hold the petitioner entitled to reinstatement with back wages. The aforesaid award of the Tribunal was challenged by the respondent Bank before the Lucknow Bench of the Court by way of Writ Petition No. 3408 of 2001 (SS). The award rendered by the Tribunal was upheld subject to certain modifications which are evident from the extract of the decision rendered on that petition which are reproduced hereinbelow:-
"In view of the above, there appears no substantial illegality and impropriety committed by the labour court by recording the finding that the order of termination was bad in law on account of non-compliance of the procedure provided under Section 25-F of the Act.
However, learned counsel for the petitioner submits that since the private respondent No.1 the workman, has not discharged duty after 30.1.1994, he is not entitled for payment of salary.
Keeping in view the fact that the private respondent No. 1 has not discharged duty after 30.1.1994 and in view of catena of judgments of Hon'ble Supreme Court, the payment of back-wages is confined to 50% payable to the private respondent No. 1 workman in accordance with law. The amount which has already been paid to the private respondent No.1 in view of Section 17-B of the Industrial Dispute Act, may be adjusted while calculating 50% of back wages but no recovery shall be made for excess payment.
The private respondent No.1 shall be entitled to continue in service with full wages in accordance with law with effect from the delivery of impugned award by the labour court.
Subject to above, modification, no interference is called for in exercise of writ jurisdiction. The writ petition is dismissed with no order as to costs."
It is not disputed that the petitioner has since been reinstated and consequent to the aforesaid award attaining finality all benefits flowing therefrom have also been released.
Learned counsel for the petitioner however contends that in light of the direction for reinstatement, he was entitled to be regularised and placed in the regular cadre of Clerk in the respondent bank. That submission in the considered view of the Court is made without bearing in mind the impact of a direction for reinstatement as made by the Industrial Tribunal.
It becomes pertinent to note that an order of reinstatement does not result in the elevation of the status or nature of employment of the workman. It only results in the retrenched workman being placed in the same position which he held at the time to termination. The above view stands fortified from the decision of the Supreme Court in RBI Vs. S. Mani [(2005) 5 SCC 100] where the Court held:-
53. Furthermore, a direction for reinstatement for non-compliance with the provisions of Section 25-F of the Industrial Disputes Act would restore to the workman the same status which he held when terminated. The respondents would, thus, continue to be ticca mazdoors, meaning thereby their names would continue in the second list. They had worked only from April 1980 to December 1982. They did not have any right to get work. The direction of continuity of service per se would not bring them within the purview of the terms of settlement. Even in the case of a statutory corporation in S.G. Kotturappa [(2005) 3 SCC 409 : 2005 SCC (L&S) 484] this Court observed:
"18. It is not a case where the respondent has completed 240 days of service during the period of 12 months preceding such termination as contemplated under Section 25-F read with Section 25-B of the Industrial Disputes Act, 1947. The Badli workers, thus, did not acquire any legal right to continue in service. They were not even entitled to the protection under the Industrial Disputes Act nor were the mandatory requirements of Section 25-F of the Industrial Disputes Act required to be complied with before terminating his services, unless they complete 240 days' service within a period of twelve months preceding the date of termination."
It was further held:
"20. The terms and conditions of employment of a Badli worker may have a statutory flavour but the same would not mean that it is not otherwise contractual. So long as a worker remains a Badli worker, he does not enjoy a status. His services are not protected by reason of any provisions of the statute. He does not hold a civil post. A dispute as regards purported wrongful termination of services can be raised only if such termination takes place in violation of the mandatory provisions of the statute governing the services. Services of a temporary employee or a badli worker can be terminated upon compliance with the contractual or statutory requirements."
The aforesaid view was reiterated by the Supreme Court in Gangadhar Pillai v. Siemens Ltd., (2007) 1 SCC 533 with the Court observing as under:-
28. It is not the law that on completion of 240 days of continuous service in a year, the employee concerned becomes entitled to for regularisation of his services and/or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularised. Direction to reinstate the workman would mean that he gets back the same status."
In view of the aforesaid, the Court finds no merit in the submission that the award of the Tribunal entitles the petitioner to claim regularisation.
Notwithstanding the above, the right of the petitioner to claim regularisation under any separate or independent scheme that may prevail in the respondent Bank has not been dealt with by this Court while deciding the instant writ petition. His rights in respect to the above shall stand preserved.
Subject to the aforesaid observation, this writ petition is dismissed.
Order Date :- 27.7.2021
faraz
(Yashwant Varma, J.)
