Himachal Pradesh High Court
State Bank Of India vs Mahesh Chand on 26 February, 2022
Bench: Sabina, Satyen Vaidya
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Reportable/non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 26th DAY OF FEBRUARY, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
LETTERS PATENT APPEAL No. 258 OF 2012
Between:-
1. STATE BANK OF INDIA
HAVING ITS CENTRAL OFFICE
IN NEW ADMINISTRATIVE BUILDING
MADAM CAMA ROAD, BACK-WAY
RECLAMATION, PO BOX NO. 12,
MUMBAI-400021, AND ONE OF
THE BRANCHES AT NEW SHIMLA
H.P. THROUGH SHRI JAGDISH CHAND
CHIEF MANAGER.
2. ASSISTANT GENERAL MANAGER,
STATE BANK OF INDIA,
REGION-II, ZONAL OFFICE,
SHIMLA, H.P.
....APPELLANTS
(SH. K. D. SOOD, SR. ADVOCATE WITH SH. RAHUL
PATHANIA, ADVOCATE)
AND
1. PUJA WIFE OF SHRI MAKHAN SINGH,
RESIDENT OF BLOCK NO. A-17,
SECTOR 23, SDA COLONY,
VIKAS NAGAR, SHIMLA-9.
2. (DELETED VIDE ORDER DATED 12.6.2012)
....RESPONDENTS
(SH. SHASHI BHUSHAN, ADVOCATE, FOR R-1).
Reserved on: 22.2.2022
Date of decision: 26.2.2.2022
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This appeal coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya passed the following:
.
JUDGMENT
Heard.
By way of instant Letters Patent Appeal, challenge
has been laid to the judgment dated 29.3.2012 passed by the
learned Single Judge in CWP No. 663 of 2011, whereby the
Award dated 7.9.2010 passed by learned Presiding Officer,
Central Government-cum-Industrial Tribunal-I Chandigarh in
Case No. ID-3/2007( for short, "Tribunal") holding the
retrenchment of respondent herein to be bad in law and
directing the appellants herein to reinstate the workman with
all consequential benefits, has been affirmed.
2. Appellants and Respondent herein shall be referred
to as the Bank and workman respectively for the sake of
convenience.
3. A glance at the factual background of the case
reveals that the workman raised an Industrial Dispute under
the Industrial Disputes Act 1947 (for short 'the Act') against the
Bank. It was alleged that workman remained in continuous
employment with New Shimla Branch of the Bank w.e.f
9.6.2000 till 29.7.2005, on payment of Rs. 50/- as daily wage.
She was not allowed to work w.e.f. 29.7.2005 and her services
were terminated without any prior notice or salary in lieu
.
thereof, therefore, the workman alleged her retrenchment to be
in violation of Section 25-F of the Act.
4. On 22.1.2007, appropriate Government referred the
dispute, under Section 10 of the Act, to the Tribunal for
adjudication in following terms:-
"Whether the action of the management of State
Bank of India, Shimla in terminating the services of
Smt. Pooja, Part Time Sweeper w.e.f. 29.7.2005 is
illegal and unjustified? If so, to what relief the
concerned workman is entitled to and from which
date?"
5. The Bank did not specifically deny the averment
with respect to engagement of workman in the Bank since
9.6.2000. However, the relationship of employer and employee
with the workman was denied. It was stated that the workman
was, in fact, employed by a contractor, who was awarded a
contract to install, operate and maintain a generator set in the
concerned branch of the bank. The said contract was stated to
have commenced in August, 2002. It was further maintained
by the management that the contractor was to be paid Rs.
8200/- per month by the bank and on the asking of the said
contractor, a sum of Rs. 700/- per month was being paid to the
workman, who was employed to operate the generator set by
the contractor. On one hand, the management had taken a
.
specific stand, as noticed above, on the other, the management
simultaneously pleaded that the services of the workman were
availed by the branch of the bank as casual labour to perform
the work of sweeping and cleaning the branch on few occasions
only before commencement of the business hours and she was
as such.
r to
paid for the same on daily basis as and when, she was engaged
6. Learned Tribunal on the basis of material on record
including the evidence led by the parties found the defence
raised by the management as fallacious. The workman was
held to be in continuous employment of the bank from 9.6.2000
to 29.7.2005. The termination of workman was held to be in
violation of Section 25-F of the Act. The management was
directed to reinstate the workman with all consequential
benefits.
7. Learned Single Judge of this Court, while deciding
the challenge raised by the bank to the award passed by the
Tribunal, held findings and conclusions recorded by the learned
Tribunal to be in accordance with the material on record and
thus, affirmed the award impugned by way of CWP No. 663 of
2011.
8. Perusal of the grounds raised by the appellants in
the instant Appeal reveal that the judgment passed by the
.
learned Single Judge as well as Award passed by the learned
Tribunal have been assailed being not inconformity with the
material on record. The impugned judgment passed by the
learned Single Judge has been challenged broadly on the
ground that the relationship of employer and employee has
wrongly been held to exist between the bank and the workman,
whereas the workman was proved to be the employee of the
contractor. However, at the time of hearing, an argument has
been raised in alternative that in any case, the relief of
reinstatement in favour of the workman was not warranted.
Sh. K. D. Sood, learned Senior Advocate representing the bank
has placed reliance on judgments passed in G.M., B.S.N.L and
ors vs. Mahesh Chand, 2008 (3) Services Law Reporter,
105, Senior Superintendent Telegraph (Traffic), Bhopal vs.
Santosh Kumar Seal and others, 2010 (6) SCC 773,
District Development Officer & another vs. Satish Kantilal
Amrelia, (2018) 12 SCC 298 and Ranbir Singh vs.
Executive Engineer, PWD, Civil Appeal No. 4483 of 2010,
decided on 2.9.2021.
9. The specific case of workman, as pleaded, that she
was employed w.e.f. 9.6.2000 in the New Shimla Branch of the
bank was neither denied nor otherwise rebutted by the bank
hence, such fact was impliedly admitted. On the contrary, the
.
bank raised the plea that the workman was employee of the
contractor with whom the contract for installation of generator
set had come into being in August, 2002. The bank, however,
admitted that workman was occasionally assigned the sweeping
and cleaning work on need basis and was paid Rs. 50/- per day
for such job, which was being paid to her in addition to Rs.
700/- per month as Generator set attendant by deducting the
same from payable amount to the contractor as per contract.
Thus, there was a clear admission of the bank to the effect that
the workman was being paid Rs. 50/- as daily wage for
sweeping and other office works assigned to her from petty
cash. It was not the case of the bank that its concerned branch
had some other incumbent for the job of sweeping and
cleaning. It is hard to believe that a branch of State Bank of
India that too in a thickly populated area of town would remain
without sweeping and cleaning for days together. Viewed in
aforesaid perspective adverse inference is liable to be drawn
against the bank for not having produced best evidence to prove
from its records actual payments made to the workman. Even
otherwise, the stand of the bank regarding casual deployment
of workman to sweep and clean the branch has been belied by
the cross-examination of bank's witness before the learned
Tribunal. That being so, we do not find any reason to take a
.
view different from the one taken by the learned Tribunal and
by the learned Single Judge, as regards the nature and period
of employment of the workman with the bank.
10. The argument raised on behalf of the appellants to
the effect that the order of reinstatement with all consequential
benefits was not warranted in the facts of the present case, in
our considered view, is also liable to be rejected for the reasons
detailed hereinafter.
11. In G.M., B.S.N.L and ors vs. Mahesh Chand, 2008
(3) Services Law Reporter, 105, the question considered was
whether the workman had worked continuously for 240 days in
a calendar year and on whom the onus rested to prove such
fact? In addition, their Lordships had rejected the claim of the
workman by taking into consideration specific facts of the case
by observing as under:-
"Additionally, the specific stand of the appellants in
the proceedings before the Tribunal and the High
Court was that there is no sanctioned post of
Safaiwala. There is no finding recorded by the
Tribunal or the High Court that this stand is incorrect.
Further, the respondent is also not consistent as to
the period for which he worked. At one place he said
he was working for five hours each day and other
places he had stated that he was working for 8
hours. On the contrary, the appellant with reference
to the nature of work done categorically stated that
on a part time basis depending on the need and
requirement the respondent was engaged for 2 to 3
hours periodically. Interestingly, the work that was
being done by the respondent was also being done
.
by his wife and his mother. Sometimes, no order of
appointment was admittedly issued to the
respondent. This fact is mis-conceived. In view of the
aforesaid factual scenario, the award made by the
Tribunal as affirmed by learned Single Judge and the
Division bench cannot be sustained and is set aside.
The appeal is allowed with no order as to costs."
The facts and propositions discussed in the above
of the instant case.
r to
noted judgment are thus clearly distinguishable from the facts
12. In Senior Superintendent Telegraph (Traffic),
Bhopal vs. Santosh Kumar Seal and others, 2010 (6) SCC
773, Hon'ble Supreme Court declined the relief of
reinstatement to the workman in the peculiar facts of the case
by observing that the workmen were engaged as daily wagers
about 25 years back and had worked hardly for 2 or 3 years.
Noticing various past precedents, it was observed that the relief
by way of reinstatement with back wages was not automatic
even if termination of an employee was found to be illegal or in
contravention of the prescribed procedure and that monetary
compensation in lieu of reinstatement and back wages in case
of such nature may be appropriate.
13. In District Development Officer & another vs.
Satish Kantilal Amrelia, (2018) 12 SCC 298, the Hon'ble
Supreme Court placed reliance on paragraphs 33, 34 and 35 of
judgment passed in BSNL vs. Bhuru Mal, 2014 (7) SCC 177,
.
which read as under:-
"33. It is clear from the reading of the aforesaid
judgments that the ordinary principle of grant of
reinstatement with full back wages, when the
termination is found to be illegal is not applied
mechanically in all cases. While that may be position
where services of a regular/permanent workman are
terminated illegally and/or mala fide and/or by way
of victimization, unfair labour practice, etc. However,
when it comes to the case of termination of a daily-
wage worker and where the termination is found
illegal because of a procedural defect, namely, in
violation of Section 25-F of the Industrial Disputes
Act, this Court is consistent in taking the view that in
such cases reinstatement with back wages is not
automatic and instead the workman should be given
monetary compensation which will meet the ends of
justice. Rationable for shifting in this direction is
obvious.
34. The reasons for denying the relief of
reinstatement in such cases are obvious. It is trite
law that when the termination is found to be illegal
because of non-payment of retrenchment
compensation and notice may as mandatorily
required under Section 25-F of the Industrial Disputes
Act, even after reinstatement, it is always open to the
management to terminate the services of that
employee by paying him the retrenchment
compensation. Since such a workman was working
on daily-wage basis and even after he is reinstated,
he has no right to seek regularization [see State of
Karnataka v. Umadevi (3). Thus when he cannot
claim regularization and he has no right to continue
even as a daily-wage worker, no useful purpose is
going to be served in reinstating such a workman and
he can be given monetary compensation by the Court
itself inasmuch as if he is terminated again after
reinstatement, he would receive monetary
compensation only in the form of retrenchment
compensation and notice pay. In such a situation,
giving the relief of reinstatement, that too after a long
gap, would not serve any purpose.
35. We would, however, like to add a caveat here.
There may be cases where termination of a daily-
.
wage worker is found to be illegal on the ground that
it was resorted to as unfair labour practice or in
violation of the principle of last come, fist go viz. while
retrenching such a worker daily-wage juniors to him
were retained. There may also be a situation that
persons junior to him were regularized under some
policy but the workman concerned terminated. In
such circumstances, the terminated worker should
not be denied reinstatement unless there are some
other weightly reasons for adopting the course of
grant of compensation instead of reinstatement. In
such cases, reinstatement should be the rule and
only in exceptional cases for the reasons stated to be
in writing, such a relief can be denied."
The relief of compensation instead of reinstatement
was allowed by their Lordships again having considered the
specific facts of the case as under:-
"12. Having gone through the entire record of the
case and further keeping in view the nature of factual
controversy, the findings of the Labour Court, the
manner in which the respondent fought this litigation
on two fronts simultaneously, namely, one in the civil
court and the other in the Labour Court in challenging
his termination order and seeking regularization in
service, which resulted in passing the two conflicting
orders- one in the respondent's favour (Labour Court)
and the other against him (civil court) and lastly, it
being an admitted fact that the respondent was a
daily wager during his short tenure, which lasted
hardly two-and-half years approximately and
coupled with the fact that 25 years have since
passed from the date of his alleged termination, we
are of the considered opinion that the law laid down
by this Court in BSNL v. Bhurumal would aptly apply
to the facts of this case and we prefer to apply the
same for disposal of these appeals."
14. Lastly, in Ranbir Singh vs. Executive Engineer,
PWD, Civil Appeal No. 4483 of 2010, decided on 2.9.2021,
.
the judgment passed by the Hon'ble Supreme Court in State of
Uttrakhand & another vs. Raj Kumar 2019 (14) SCC 353,
was relied, which itself had relied on paragraphs 33 to 35 of the
judgment in Bhurumal (supra). Accordingly, their Lordships
have been pleased to hold as under:-
"6. In the light of the state of the law, which we
take note of, we notice certain facts which are not in
dispute. This is a case where it is found that, though
the appellant had worked for 240 days, appellant's
service was terminated, violating the mandatory
provisions of Section 25F of the Act. The authority
involved in this case, apparently, is a public
authority. At the same time, it is common case that
the appellant was a daily wager and the appellant
was not a permanent employee. It is relevant to note
that, in the award answering Issue No.1, which was,
whether the termination of the appellant's service
was justified and in order, and if not, what was the
amount of back wages he was entitled to, it was
found, inter alia, that the appellant would not adduce
convincing evidence to establish retention of junior
workers. There is no finding of unfair trade practice,
as such. In such circumstances, we think that the
principle, which is enunciated by this Court, in the
decision, which is referred to in Raj Kumar (supra),
which we have referred to, would be more
appropriate to follow. In other words, we find that
reinstatement cannot be automatic, and the
transgression of Section 25F being established,
suitable compensation would be the appropriate
remedy.
7. In such circumstances, noticing that, though the
appellant was reinstated after the award of the
Labour Court in 2006, the appellant has not been
working since 2009 following the impugned order,
and also taking note of the fact that the appellant
was, in all likelihood, employed otherwise, also the
interest of justice would be best subserved with
modifying the impugned order and directing that in
place of Rs. 25,000/- (Rupees Twenty Five
.
Thousand), as lumpsum compensation, appellant be
paid Rs. 3.25 lakhs (Rupees Three Lakhs and Twenty
Five Thousand), as compensation, taking into
consideration also the fact that the appellant had
already been paid Rs. 25,000/- (Rupees Twenty Five
Thousand) as compensation."
15. Analysing the facts of instant case, in light of the
exposition of law discussed hereinabove, it can safely be held to
be falling in the zone of exception.
r The bank being a public
sector undertaking, was expected to place on record true and
correct facts. The stand of the bank that workman was not its
employee and also having been deployed causally, as noticed
above, is belied by record and proved otherwise. Considering
the incorrect stand having been taken by the bank, there is no
hesitation to infer unfair labour practice having been applied by
the bank. The workman was proved to have worked
continuously on daily wage basis for more than five years. It is
not the case of the bank that its concerned branch had a
regular sweeper to sweep and clean the branch. It cannot be
visualized that the branch of a bank, that too none else than
State Bank of India, would not require service of a sweeper to
clean and sweep the business place regularly. It is also
unimaginable that the said branch of the bank would require
the service of workman for the purposes of sweeping and
cleaning occasionally. Thus, the conduct of the
.
bank/management clearly proves its intent to ostensibly
employ the workman on casual or temporary basis and to
continue her as such for years with the object of depriving her
of the status and privilege of permanent workman, which as per
Clause-10 of the 5th Schedule of the Act amounts to unfair
labour practice.
16. to
Further, the workman in the instant case was
initially employed on 9.6.2000 and worked continuously till
29.7.2005 i.e. for more than five years. We have been informed
at the time of hearing that the workman is still working in the
bank, after passing of the award by the learned Tribunal. A
perusal of order dated 23.2.2011, passed by a Division Bench
of this Court in CWP No. 663 of 2011 reveals that operation of
the impugned award was stayed on the condition that the bank
would continue to engage the workman for the works for which,
she was earlier engaged. While admitting the writ petition on
3.6.2011, the interim order dated 23.2.2011 was ordered to
continue. Thus, the service rendered by the workman to the
bank initially for five years and after passing of the award by
the learned Tribunal again for continuous period of more than
eleven years, is definitely a circumstance to uphold the order of
reinstatement in favour of the workman or otherwise, it will
really be harsh upon her to be left on road without any job after
.
a period of 21 years of her initial employment with the bank,
especially when she may be at such a stage of life where she
may not be able to secure another job and livelihood for her.
The relief in terms of monetary compensation may not be
appropriate in the given facts of the case.
17.
In light of the above discussion, we find no merit in
the instant appeal and the same is accordingly dismissed.
Pending applications, if any, also stand disposed of.
(Sabina)
Judge
(Satyen Vaidya)
26th February, 2022 Judge
(kck)
