Gujarat High Court
The Chief General Manager, State ... vs Hiteshkumar Balkrishnabhai ... on 28 July, 2021
Bench: A.S. Supehia
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10607 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA
Versus
HITESHKUMAR BALKRISHNABHAI JOSHI
================================================================
Appearance:
MR RITURAJ M MEENA(3224) for the Petitioner(s) No. 1
HARSH K RAVAL(9068) for the Respondent(s) No. 1
MR AMRESH N PATEL(2277) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/07/2021
ORAL JUDGMENT
[1] The present writ petition has been filed
seeking quashing and setting aside the order
dated 24.06.2019 passed by the Presiding Officer,
Central Government Industrial Tribunal-cum-Labour
Court, Ahmedabad (CGIT).
[2] Learned advocate Mr.Meena appearing for the
petitioner has submitted that the impugned order
passed by the CGIT, is erroneous since it was
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
found that the respondent no.1 was illegally
granted the benefits of regularization by the
State Bank of Saurashtra. It is submitted that
the appointment of the petitioner was made de
hors the norms of the subordinate category
eligibility, past experience etc. Hence, the
services of the petitioner was terminated by the
order dated 17.06.2010 in compliance with the
provision of Section 25F(b) of the Industrial
Disputes Act, 1947. Learned advocate Mr.Meena has
submitted that the School Leaving Certificate of
respondent no.1 produced at Annexure 'C', shows
his date of birth as 04.09.1976. He has referred
to the representation made by the respondent no.1
on 20.08.2007 requesting the General Manager,
State Bank of Saurashtra to appoint him in 1/3
part time pay fixation. It is submitted that thus
a statement has been made by the respondent no.1
in the communication dated 20.08.2007 that he was
working in the year 1989 at Valsad Branch of
State Bank of Saurashtra and looking to the Birth
Certificate, which shows as 04.09.1976, then he
would be 13 years of the age at the time of
appointment. While Pointing out the policy of the
State Bank of Saurashtra, Mr.Meena has submitted
that in fact as per the provision of the policy,
the candidate has to be between 18 to 24 years of
age for getting eligible for regularization of
pay fixation and in case of the Schedule Tribe
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
and Scheduled Caste, the candidate may be 29
years of age. However, since the present
respondent no.1 was 30 years of age, he could not
have been granted benefits as demanded by him. It
is further submitted that such pay fixation was
illegally offered / granted to the respondent
no.1 by the then General Branch Manager and
hence, memorandum of charges is issued against
the Branch Manager on 15.06.2020. He has
Submitted that there is illegality committed by
the erstwhile Bank of Saurashtra. While referring
to the impugned judgment and order, he has
submitted that the observation made by the Labour
Court is erroneous since no opportunity of
hearing was required to be offered to the
respondent no.1 since his appointment was
illegal, void ab initio. It is submitted that the
Labour Court has fallen in error while granting
the back wages since there was no need of such
directions looking to the illegal appointment of
respondent no.1 and no averment was made in the
application claiming the back wages. It is
submitted by Mr.Meena that the the Labour Court
could have asked the petitioner to lead evidence
before it and conduct departmental proceedings.
However, no such exercise is undertaken and
straightway termination order was set aside.
[3] In response to the aforesaid submissions,
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
learned advocate Mr.Amresh Patel appearing for
the respondent no.1 has submitted that the
respondent no.1 before the Labour Court had filed
an affidavit dated 09.03.2016 categorically
stating that he was appointed as peon in the
month of June, 1997. He has submitted that due to
inadvertence, an error was made in the
communication dated 20.08.2007 while referring
his appointment as 1989-1990 but in fact the
respondent no.1 was appointed in the year 1997.
In support of his submission, he has also
referred to the Provident Fund Slip, in which
joining time is also referred to as year 1997. It
is submitted that though a specific contention
was raised by the respondent no.1 before the
Labour Court, the petitioner did not lead
evidence to the contrary. It is submitted by him
that the documents, which are produced before
this Court with regard to the policy was not
produced before the Labour Court. It is
submitted that in fact no evidence was led with
regard to the misconduct alleged against the
respondent no.1 by the petitioner. Further, it is
submitted that while referring to the statement
of claim, it is submitted by him that there was
no cross-examination of respondent no.1 with
regard to his specific contention of having
joined the service in the year 1997. It is
submitted by him that in fact there was no prayer
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
or any request made by the petitioner to hold the
departmental inquiry or to lead evidence with
regard to the misconduct before the Labour Court
and hence, it is not open for them to contend
that the Labour Court should have on his on held
the departmental inquiry.
[3.1] In support of his submission, learned
advocate Mr.Patel has placed reliance on the
judgment of the Supreme Court rendered in the
case of Food Corporation of India vs. General
Secretary, Food Corporation Employees Union &
Ors., 2018 (9) S.C.C. 464.
[3.2] Learned advocate for respondent No.1 has
submitted that thus, the petitioner failed to
adduce evidence and the Labour Court was
justified in setting aside the impugned order of
termination. Thus, the learned advocate has
submitted that the respondent no.1 was a regular
employee and his services were terminated without
giving any opportunity of hearing. Mr.Patel has
submitted that in fact in 1984 the policy, on
which reliance has been placed, has been produced
at the fag end in the written submissions.
[4] Heard learned Advocates for the respective
parties.
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
[5] It appears that the respondent no.1 was
initially appointed in the State Bank of
Saurashtra, which is subsequently acquired by the
State Bank of India. The documents which are on
record reveal that the respondent no.1 was
appointed in the year 1997. It appears that prior
to such acquisition, the respondent no.1 had
submitted an application dated 20.08.2007 before
the Branch Manager, State Bank of Saurashtra for
placing him in 1/3 fix pay of part time
subordinate employees. Thereafter, pursuant to
the said representation, his pay fixation was
done, he was regularized in service in November
2007. Vide order dated 24.09.2007, the Competent
Authority has also approved 1/3 pay scale of the
subordinate staff. It appears that after
acquisition of State Bank of Saurashtra, the
petitioner - State Bank of India vide order dated
17.06.2010, terminated the services of the
respondent no.1. However, perusal of the order
dated 17.06.2010, reveals that the service of the
respondent no.1 is terminated for the reason that
he did not fulfill the eligibility norms, past
experience etc. at the time of his initial
appointment.
[6] It is also alleged that though respondent
no.1 was not eligible, he has been continued in
the bank. Thus, the erstwhile State Bank of
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
Saurashtra, after examining the case of the
respondent no.1 had placed him in minimum wages
of subordinate staff and also regularized his
service and after acquisition the petitioner-Bank
has terminated service of the respondent no.1,
without affording any opportunity of hearing. The
entire case of the petitioner-Bank is premised on
a single communication dated 20.08.2007 written
by the respondent no.1 to the Branch Manager,
Bank of Saurashtra requesting him to place in the
1/3 pay-scale of subordinate staff. The
petitioner-bank has stressed on such
communication of the respondent no.1 to that
effect he has stated that he was working in
Valsad since 1989-1990. The petitioner-bank has
alleged that respondent no.1 has incorrectly
stated about his initial year of appointment and
looking to the Birth Certificate, he would be 13
years of the age at the time of appointment since
he mentioned his joining year as 1989-1990 in the
said letter. It is pertinent to note that the
respondent no.1, in his affidavit before the
Labour Court, has categorically stated that he
was appointed in the month of June-July 1997 in
the erstwhile State Bank of Saurashtra. Such
contention was not cross-examined by the
petitioner-bank. In support of his submission the
petitioner-bank did not care to cross-examine or
lead any evidence to the contrary before the
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
Labour Court. Thus, it appears that through
inadvertence, in the communication dated
20.08.2007, he has incorrectly stated his
appointment year as 1989-1990.
[7] At this stage, it would be apposite to refer
the judgment of the Supreme Court rendered in the
case of Food Corporation of India vs. General
Secretary Food Corporation Employees Union &
Ors., 2018 (9) SCC 464, thus:
"19. In our opinion, the very fact that the appellant
FCI failed to adduce any evidence to prove their case,
the Industrial Tribunal was justified in drawing adverse
inference against them. Indeed, nothing prevented the
appellant from adducing evidence to prove the real state
of affairs prevailing in their set up relating to these
workers. It was, however, not done by FCI for the
reasons best known to them. It was not the case of the
appellant FCI that they were not afforded any
opportunity to adduce evidence and nor any attempt was
made by the appellant to adduce any evidence in the
writ petitions or in the intra-court appeals and lastly
even in these appeals to prove their case."
[8] Thus, in light of the above observations of
the Apex Court, the petitioner was required to
adduce evidence that the respondent no.1 was not
appointed in 1997 but in 1989. The respondent
no.1 has filed an affidavit before the Tribunal/
CGIT stating that he has remained unemployed
after his termination which has not been denied
by the petitioner-bank and no evidence to the
contrary has been led. An affidavit of the
petitioner-bank before the Tribunal/CGIT also
C/SCA/10607/2020 JUDGMENT DATED: 28/07/2021
reveals that in fact no request was made before
the Tribunal to hold the departmental inquiry and
also to allow them to lead evidence pointing out
the illegal appointment of the respondent no.1.
[9] The Tribunal, after examining the documentary
and oral evidence, has set aside the termination
of the respondent no.1 on the ground that the
same was passed without any opportunity of
hearing. It is not denied that the respondent
no.1 was the regular employee of the petitioner-
Bank. Neither any departmental proceedings were
held nor the Labour Court was requested to hold
the same. The respondent no.1 could not have been
terminated without holding departmental
proceedings, since the termination is stigmatic
based on the allegations that he was illegally
appointed and thereafter granted the pay fixation
de hors the rules and regulation.
[10] In the considered opinion of this Court,
this Court does not find any illegality or
perversity in the judgment and order of the
Tribunal/CGIT.
[11] The writ petition fails. Notice is
discharged.
(A. S. SUPEHIA, J)
NABILA
