The Hongkong & Shanghai Banking ... vs Uoi & Ors.
2012 Latest Caselaw 4458 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%              CM No. 8045/2012
                      in
               W.P.(C) 11344/2009

+                                 Date of Decision: 27th July, 2012

#     THE HONGKONG & SHANGHAI BANKING
      CORPORATION LTD.                    ....Petitioner
!            Through: Mr. Rajiv Nayyar & Mr. Sandeep
                      Sethi, Sr. Advocates with
                      Mr. Syed Naqvi & Mr. P.P.
                      Kanwar, Advocates.

                                  Versus

$     UOI & ORS.                      ...Respondents
                Through: Respondent no.2 in person.

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                             JUDGMENT

P.K.BHASIN, J:

This application has been filed by the petitioner bank seeking leave of this Court to amend its writ petition which had been filed by it for quashing the award dated 01.06.2009 passed by the Central Government Industrial Tribunal-cum- Labour Court(CGIT) whereby it was directed to reinstate the

respondent no.2 herein whose services were held to have been terminated by it illegally and unjustifiably.

2. This application was moved on behalf of the petitioner bank after its learned senior counsel had already made the submissions at great length while attacking the award of CGIT. It was contended by the learned senior counsel Mr. Rajiv Nayyar that by way of this application all that the petitioner was seeking to plead in the writ petition was to incorporate certain points which though had already been urged by him while arguing the writ petition but since those points had not been specifically pleaded and highlighted in the writ petition this application had to be moved to avoid any technical objection from the side of respondent no. 2 that those points could not be considered since the same had not been pleaded in the writ petition.

3. The learned senior counsel drew my attention to the following paras proposed to be incorporated in the writ petition:-

"It is submitted that during the course of the proceeding before the CGIT, Respondent No. 2 has admitted that she is not a workman.

In her cross-examination by the Counsel for the petitioner, Respondent No. 2 has admitted that the new

Terms of Service introduced by the Petitioner in October, 2004 were not applicable to the workman. A copy of the cross-examination of Respondent No. 2 by the Petitioner before the CGIT has already been annexed to the Petition in Vol. III at Page 413. It is submitted that the transfer to the new Terms of Service were offered to Respondent No. 2 vide Letter dated 01.09.2004. A copy of this Letter has already been annexed by the Petitioner to the Petition in Vol. IV at Page 609.

It is submitted that vide Letter dated 01.10.2004, Respondent No. 2 has accepted the transfer to the new Terms of Service. A copy of Letter dated 01.10.2004 has already been annexed to the Petition in Vol. I at Page 80.

It is therefore submitted that Respondent No. 2 herself has admitted that the new Terms of Service of October 2004 were not applicable to the workman and the fact that she has accepted the transfer of new Terms can only be construed and understood to mean that she was not a workman of the Petitioner. It is therefore submitted that the Ld. CGIT has grossly erred and failed to take note of this important and crucial fact and admission by respondent No. 2 and this along and by itself is sufficient to render the impugned Award dated 1.6.2009 passed by the CGIT as bad, perverse and illegal and is therefore liable to be set aside by the Hon'ble Court.

It is submitted that in an e-mail dated 28.09.2005 addressed by Respondent No. 2 to the Petitioner, which has already been annexed by the Petitioner in Vol. IV at Page 729, Respondent No. 2 has admitted that under the new Terms of Service effective from 1.10.2004, Respondent No. 2 was working as an officer with the petitioner. In this e-mail, Respondent no. 2 has admitted as under:-

"You have agreed that I am not doing any odd jobs in between particularly since May 05 but initiative taken

on the basis of sharing of best practices Pan India by reducing the workload of Branch Managers to inspect the OBAs in NCR Region through personal surprise visits-focusing and implementing the control weaknesses, RBI reporting on assessment of customer feedback at branches and some routine reports to INM. The same was appreciated by you verbally." It is submitted that from the above admission by respondent No. 2, there is no doubt that Respondent No. 2 was working as an officer of the Petitioner and not as a workman. It is, therefore, submitted that the Ld. CGIT has grossly erred and failed to take note of this important and crucial fact and admission by Respondent No. 2 and this alone and by itself is sufficient to render the impugned Award dated 1.6.2009 passed by the CGIT as bad, perverse and illegal and is therefore liable to be set aside by this Hon'ble Court. It is submitted that in an e-mail dated 28.09.2005 addressed by Respondent No. 2 to the petitioner, Respondent No. 2 has admitted that she was working as an officer of the Petitioner. This e-mail has already been annexed by the Petitioner to the Petition in Vol. IV at Page 728. In this e-mail, Respondent no. 2 has stated as under:-

"The journey was quite tough and not without its challenges, my MPIs were changed to a new role on 31 Jan 05 by SMNI & MPB NI which includes additional responsibilities of Monthly Branch Visits for Northern India including upcountry, Mystry shopping of competitor Banks, follow up and meeting deadlines on audit and compliance issues, regulatory requirements, OBA Visits in NCR region, coordination of major/minor/customer delight and CSR events, the same has been documented in the first interim by the Line Manager. Pls see my eTPM since you have been marked as one of the readers of HR team." This e-mail leaves no manner of doubt that Respondent No. 2 was working as an officer of the petitioner and not as a workman. It is therefore submitted that the Ld.

CGIT has grossly erred and failed to take note of this important and crucial fact and admission by respondent no. 2 and this alone and by itself is sufficient to render the impugned Award dated 1.6.2009 passed by the CGIT as bad, perverse and illegal and is therefore liable to be set aside by this Hon'ble Court. It is submitted that in an e-mail dated 29.09.2005 addressed by Respondent No. 2 to the Petitioner, Respondent No.2 has admitted that she working as an officer of the Petitioner. This e-mail has already been annexed by the Petition to the Petition in Vol. IV at Page 732. In the said e-mail, Respondent No. 2 has stated as under:-

"Sir, it was my endeavour to change the culture of the Bank during my tenure by mainly focusing on various improvement in customer services at branches in Northern India through regular Branch visits, Highlighting the control weaknesses and implementing them in management style, Mystery Shopping of Competitor Banks, OBA Surprise Visits so that our customers experienced similar services to what they are accustomed to in a Branch. I am sure you will agree that OBAs have great significance from a brand and business perspective. It was my aim to challenge the competitors with "Beat Citi in every Citi" in this competitive world. The same was very much appreciated till May 05 by the Regional Head, being the first initiative taken by a Secretary Pan-India, recognition was given through „thanks award‟ for improvement in customer services at NDH." From the above quoted e-mail addressed by Respondent No. 2 to the petitioner, it leaves no manner of doubt that Respondent No. 2 was working with the petitioner as an officer and not as a workman. It is therefore submitted that the Ld. CGIT has grossly erred and failed to take note of this important and crucial fact and admission by Respondent No. 2 and this alone and by itself is sufficient to render the impugned Award dated 1.6.2009 passed by the CGIT as bad, perverse

and illegal and is therefore liable to be set aside by this Hon'ble Court.

It is submitted that in an e-mail dated 16.05.2005 addressed by Respondent No. 2 to the Petitioner, Respondent No. 2 had herself requested the Petitioner to terminate her services w.e.f. 03.10.2005 by giving her three months notice period from July 2005 to September 2005. This e-mail has already been annexed by the Petitioner to the Petition in Vol. IV at Page 667. In this e-mail, Respondent No. 2 has stated as under:- "I once again request you to please consider the analysis, in the interest of the Bank and on a mutually beneficial relationship you may consider the three months‟ notice period from July-Sep and release date w.e.f. 03Oct05."

It is submitted that the above quoted e-mail leaves no manner of doubt that Respondent No. 2, who herself wanted to leave the Petitioner and therefore her allegation that her termination is illegal, is contrary to her own documents on record. In this view, the Order of the Ld. CGIT directing reinstatement of Respondent No. 2 was completely unwarranted and unjustified in as much as the prayer for reinstatement by Respondent No. 2 became redundant and was not available to her in view of her categorical e-mail aforesaid indicating her intention to voluntarily leave the services of the Petitioner. It is therefore submitted that the Ld. CGIT has grossly erred and failed to take note of this important and crucial fact and admission by Respondent No. 2 and this alone and by itself is sufficient to render the impugned Award dated 1.6.2009 passed by the CGIT as bad, perverse and illegal and is therefore liable to be set aside by this Hon'ble Court."

4. The respondent no.2, who had been held to be an industrial workman in the impugned award of CGIT and who has been fighting her legal battle in person, has opposed this

application on the ground that despite the fact that she had not objected to the learned senior counsel for the Bank urging the aforesaid points sought to be now pleaded in the writ petition for any reason and that this Court also had also not stopped him from making those submissions this application has been filed and that has been only to de-rail these proceedings and to delay the final disposal of the writ petition and that too after a lengthy hearing has already taken place. Therefore, the respondent contended, this application being highly frivolous should be rejected with heavy costs.

5. After giving my thoughtful consideration to the rival submissions I have come to the conclusion that the respondent was right in her submission that this application has been filed only with the intention of delaying the hearing and disposal of the main writ petition in which a lengthy hearing has already taken place and the learned senior counsel for the bank has made all the aforesaid submissions without any sort of objection from the respondent or even by the Court. All the necessary evidence adduced before CGIT has already been read out before me in support of the submissions that voluminous evidence adduced by the Bank had totally been ignored by CGIT while observing in the

impugned award that the Bank had not placed on record any evidence at all in support of its defence that the respondent herein was not an industrial workman as defined in the Industrial Disputes Act.

6. This application is, therefore, devoid of any merit and having been filed only to delay the disposal of the writ petition is dismissed with costs of Rs.25,000/-.

P.K. BHASIN, J JULY 27, 2012