Gujarat High Court
Mansukhbhai Popatlal Vaghela vs General Manager - State Bank Of ... on 20 January, 2022
Bench: Hemant M. Prachchhak
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1557 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 5843 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MANSUKHBHAI POPATLAL VAGHELA
Versus
GENERAL MANAGER - STATE BANK OF INDIA & 2 other(s)
==========================================================
Appearance:
for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PV PATADIYA(5924) for the Appellant(s) No. 1
MR ANAND B GOGIA(5849) for the Respondent(s) No. 2
MR BB GOGIA(5851) for the Respondent(s) No. 2
MS MUSKAN A GOGIA(6624) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 20/01/2022
Page 1 of 12
Downloaded on : Thu Jan 27 20:12:27 IST 2022
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. ADMIT. Mr. Gogia, learned advocate waives
service of notice of admission on behalf of
the respondent no.2. With consent of the
learned advocates appearing for the respective
parties, the appeal is taken up for final
disposal forthwith.
2. Feeling aggrieved and being dissatisfied by
the common judgment and order dated 19.9.2017
passed by the learned Single Judge in Special
Civil Application no.5843/2014, whereby the
learned Single Judge was pleased to enhance
the compensation ordered by the Central
Government Industrial Tribunal-cum-Labour
Court from Rs.20,000/- to Rs.1,00,000/-.
3. It is the case of the employee - appellant
that he was working with the respondent - Bank
as a Watchman for a period of 3 years i.e.
from 11.3.1994 to 9.9.1997. Record indicates
that appropriate Government referred the
dispute raised by the appellant being
Reference (ITC) no.1999/99 which was
renumbered as Reference (CGIT) no.1104/2004,
wherein Paragraph 2 reads as under:-
"2. The case of the workman (the 2nd
party) as per the statement of claim
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
(Ext.2) is that he was working at
Surendranagar branch of SBI as a peon
w.e.f. 11.03.1994 and wages per day
was Rs.18/- and lastly he was getting
Rs.50/- per day at the time of
termination. He was doing manual
works of different types regularly
and his works was of permanent nature
and he was working from 8:30 a.m. to
6:30 p.m. But he was orally
terminated by the 1st party on
09.09.1997 and he was not given legal
dues or any retrenchment
compensation, where as he worked for
240 days in a year. He worked for 77
days in 1994, 260 days in 1995, 251
days in 1996 and 122 days in 1997.
The 1st party committed breach of
section 25F of the I.D. Act, 1947.
The 1st party employed new person
after his termination and thus
committed breach of section 25(H) of
the I.D. Act, 1947 The 1st party bank
have not taken into consideration of
his past record of service before
termination. He failed to get
employment elsewhere and he is
unemployed, facing financial crisis.
On these scores, prayer is that the
action of the 1st party in terminating
him is illegal and unjust, he be
reinstated with full back wages and
continuity of service w.e.f.
09.09.1997 and also for cost of the
litigation and to pass order to which
the workman is found entitled."
4. The allegation and demand by the appellant was
opposed by the Bank by filing a written
statement Exh.5, wherein it is averred thus:-
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
"3. As against this, the case of the
1st party (Bank) as per written
statement (Ext.5) is that the 2nd
party workman was a casual daily
rated worker and he himself left his
service and it is not a case of
dismissal, discharge or termination.
The 2nd party was called to perform
the casual work at Surendranagar
branch of the Bank. No permission of
Zonal office of S.B.I. was taken
before taking the service of the 2nd
party at Surendranagar branch. It has
been denied that the 1st party (Bank)
had terminated the service of the
workman on 09.09.1997 orally. The
workman himself has stopped coming to
Bank and so no question of payment of
retrenchment compensation and notice
pay to him. But if this court comes
to the conclusion that the 2nd party
workman was entitled to retrenchment
compensation and notice pay, the same
may be awarded to him but he is not
entitled for reinstatement. However,
the 1st party have denied the
averments of statement of claim para
wise. On these scores, prayer is that
the 2nd party is not entitled to
relief and the reference is fit to be
rejected with cost."
5. Mr. Patadiya, learned advocate for the
appellant contended that the learned Single
Judge instead of enhancing the compensation
should have ordered reinstatement in view of
the fact that the Tribunal has categorically
come to the conclusion that there is violation
of mandatory provisions of Section 25F of the
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
Industrial Disputes Act, 1947 and the learned
Single Judge ought to have awarded
reinstatement.
6. Per contra, Mr. Gogia, learned advocate for
the respondent - Bank has supported the view
of the learned Single Judge. Mr. Gogia
contended that in a similarly situated case,
which came to be disposed of by common
judgment and order by this Court, an appeal
was filed being Letters Patent Appeal
no.770/2018, wherein the Coordinate Bench of
this Court was pleased to dispose of the
appeal by enhancing the compensation from
Rs.1,75,000/- to Rs.2,50,000/-. Mr. Gogia
submitted that in the said case, the workman
had worked for six years, whereas in the case
on hand, the appellant has worked only for
three years and as such the learned Single
Judge has appropriately granted Rs.1,00,000/-
as compensation, which does not require any
interference.
7. Mr. Gogia, however, contended that the appeal
is not maintainable. In light of the fact that
in a similarly situated case from the same
Bank, as this Court has entertained the
Letters Patent Appeal, the contention as
regards maintainability does not require any
consideration and the same is rejected.
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
8. The Coordinate Bench in the case of Jayeshgiri
Natwargiri Goswami (Gosai) Vs. State Bank of
India, rendered in Letters Patent Appeal
no.770 of 2018 has observed thus:-
"5. Perusing the order of the learned
Single Judge reveals that the learned
Single Judge has categorically
affirmed the findings of the Labour
Court confirming the findings as far
as violation of provisions of
Sections 25F & 25G are concerned.
However, the learned Single Judge
noticed certain striking features and
factual aspects which led the learned
Single Judge to enhance the
compensation awarded. Such features
so enunciated by the learned Single
Judge read as under:
"46. The striking features and
factual aspects of the two cases on
hands which need to be taken into
account while deciding the issue
related to appropriate relief are
that:
(a) the claimants were engaged
without following procedure
prescribed by Rules. Differently put,
their engagement with the bank was
irregular;
(b) however, such irregular
appointment was continued for long
time and when dispute arose the bank
sought to take advantage of its own
irregularity;
(c) The fact that the bank engaged
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
persons and while engaging the
claimants it is the bank who ignored
its own rules and procedure and
engaged the service of the claimants
without following procedure (i.e. by
committing irregularity) and now it
is the bank who seeks to take
disadvantage for its own wrong and
irregularity;
(d) the claimants worked on daily
wage basis. Until their service came
to be terminated the services of the
claimants were not regularized and
they were not receiving salary under
the pay scales attached to the post
where the claimants were engaged;
(e) in light of observation in case
of L Ropert D'Souza, decided by Apex
Court, termination of a daily wages
who was engaged for 12 or more than
12 months and for 240 days or more
would amount to retrenchment and
therefore prescribed procedure under
Section 25-F must be followed; and
(f) total tenure of service of the
claimants, as daily wager, is 3 years
in case of Mr.Vaghela and 6 years in
case of Mr.Goswami;
(g) service of Mr.Goswami was
terminated in February 2000, whereas
service of Mr.Vaghela was terminated
in September 1997. Thus, more than 17
years have passed since the claimant
Mr.Goswami came to be terminated and
about 20 years have passed since the
service of claimant Mr.Vaghela came
to be terminated.
47. During such long span many events
would have substantially changed in
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
the establishment of the bank. Other
persons might have been engaged in
regular course and any vacancy may
not be available on the set up and
establishment of the bank. Besides
this, the bank, a public sector
undertaking, would be obliged to fill
up the posts in accordance with the
Rules by offering opportunity to
eligible persons. Further, during the
period of 17 to 20 years which have
passed since the services of the
claimants came to be terminated, the
claimants also must have secured
gainful employment / alternative
employment.
48. When above mentioned aspects are
taken into account, then it appears
that in light of peculiar facts and
circumstances of the case,
appropriate remedy would be to award
appropriate lump sum compensation to
the claimants instead of directing
the bank to reinstate the claimants
whose tenure with the bank was of 3
years and 6 years.
49. The cases on hand are not such
wherein the services of the claimants
came to be terminated after they
served with the employer for long
time, i.e. for 10 years or more."
6. What the learned Single Judge
therefore has considered is that due
to the fact that more than 17 years
had gone by since the services of the
appellant was terminated and that the
appointment was without following
regular procedure, balance would be
struck if the compensation was
enhanced and accordingly the learned
Single Judge enhanced the
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
compensation to Rs.1,75,000/- as
compared to Rs.45,000/- awarded by
the Labour Court.
7. What is not in dispute is that the
appellant had rendered six years of
continuous service. Reinstatement was
not possible in view of the
intervening circumstances. Mr.
Mishra's contention therefore that
rather than awarding compensation,
the learned Single Judge ought to
have awarded reinstatement cannot be
accepted in view of the fact that the
engagement of the employee was
irregular and though he had continued
in service for six years, since the
termination was in the year 2000, 20
years have gone by and therefore
reinstatement of a daily wager was
not plausible.
8. However, one cannot lose sight of
the fact that the appellant had
rendered six years of continuous
service and therefore the passage of
time that has occurred in the
interregnum from the date of his
termination should not affect the
relief that needs to be granted to
the appellant. Considering the
totality of the facts and
circumstances of the case therefore
we deem it fit to enhance the
compensation further by Rs.75,000/-
and in all therefore hold that the
appellant is entitled to compensation
of Rs.2,50,000/- instead of the
compensation of Rs.1,75,000 awarded
by the learned Single Judge."
9. In the case on hand also, the learned Single
Judge was pleased to enhance the compensation
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
from Rs.20,000/- to Rs.1,00,000/-. The
appellant herein also stands on the same
footing. The learned Single Judge has observed
thus in Paragraph 46 and 47:-
"46. The striking features and
factual aspects of the two cases
on hands which need to be taken
into account while deciding the issue
related to appropriate relief are
that:
(a) the claimants were engaged
without following procedure
prescribed by Rules. Differently
put, their engagement with the bank
was irregular;
(b) however, such irregular
appointment was continued for long
time and when dispute arose the
bank sought to take advantage of
its own irregularity;
(c) The fact that the bank engaged
persons and while engaging the
claimants it is the bank who ignored
its own rules and procedure and
engaged the service of the
claimants without following
procedure (i.e. by committing
irregularity) and now it is the bank
who seeks to take disadvantage for
its own wrong and irregularity;
(d) the claimants worked on daily
wage basis. Until their service
came to be terminated the services
of the claimants were not
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
regularized and they were not
receiving salary under the pay scales
attached to the post where the
claimants were engaged;
(e) in light of observation in case
of L Ropert D'Souza, decided by Apex
Court, termination of a daily wages
who was engaged for 12 or more than
12 months and for 240 days or more
would amount to retrenchment and
therefore prescribed procedure under
Section 25-F must be followed; and
(f) total tenure of service of the
claimants, as daily wager, is 3 years
in case of Mr.Vaghela and 6 years in
case of Mr.Goswami;
(g) service of Mr.Goswami was
terminated in February 2000, whereas
service of Mr.Vaghela was terminated
in September 1997. Thus, more than 17
years have passed since the claimant
Mr.Goswami came to be terminated
and about 20 years have passed
since the service of claimant
Mr.Vaghela came to be terminated.
47. During such long span many events
would have substantially changed in
the establishment of the bank. Other
persons might have been engaged in
regular course and any vacancy
may not be available on the set up
and establishment of the bank.
Besides this, the bank, a public
sector undertaking, would be
obliged to fill up the posts in
accordance with the Rules by
offering opportunity to eligible
C/LPA/1557/2019 JUDGMENT DATED: 20/01/2022
persons. Further, during the period
of 17 to 20 years which have passed
since the services of the claimants
came to be terminated, the claimants
also must have secured gainful
employment/alternative employment."
10. We are in total agreement with the view taken
by the learned Single Judge. However,
following the judgment of the Coordinate Bench
in the case of similarly situated person i.e.
Jayeshgiri Natwargiri Goswami (Gosai) Vs.
State Bank of India, rendered in Letters
Patent Appeal no.770 of 2018, we deem it fit
to enhance the compensation from Rs.1,00,000/-
to Rs.1,50,000/-. The respondent - Bank shall
pay the amount of compensation as determined
by this Court within a period of four weeks
from today as this order is passed in presence
of the learned advocate for the respondent -
Bank. The impugned judgment and order stands
modified to the aforesaid extent only. The
appeal is thus partly allowed However, there
shall be no order as to costs.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
Maulik
