State Bank Of India vs Baijnath Prasad Patel
2022 Latest Caselaw 12866 MP

                                                    1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                   BEFORE
                                   HON'BLE SHRI JUSTICE MANINDER S BHATTI
                                         ON THE 26th OF SEPTEMBER, 2022

                                                 WP-00536-2017

                           BETWEEN:-
                           BAIJNATH PRASAD PATEL S/O PREMNARAYAN
                           PRASAD PATEL, AGED ABOUT 48 YEARS, OLD
                           CHERAI CANTONMENT COLONY (MADHYA
                           PRADESH)

                                                                               .....PETITIONER
                           (BY SHRI UTTAM MAHESHWARI, ADVOCATE )

                           AND
                           STATE BANK OF INDIA THROUGH ITS CHIEF
                           MANAGER CIVIL LINES BRANCH (MADHYA
                           PRADESH)

                                                                             .....RESPONDENT
                           (BY SHRI VIJAY KUMAR TRIPATHI, ADVOCATE )

                                       WRIT PETITION No. 536 of 2017

                           BETWEEN:-
                           STATE BANK OF INDIA THROUGH ITS CHIEF
                           MANAGER CIVIL LINES BRANCH SAGAR
                           (MADHYA PRADESH)

                                                                               .....PETITIONER
                           (BY SHRI VIJAY KUMAR TRIPATHI, ADVOCATE )

                           AND
                           BAIJNATH PRASAD PATEL S/O SHRI PREM
                           NATH PATEL, AGED ABOUT 48 YEARS, OLD
                           CHIERAI CANTONMENT COLONY SAGAR
                           (MADHYA PRADESH)

                                                                             .....RESPONDENT
                           (BY SHRI UTTAM MAHESHWARI, ADVOCATE )

                          This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 9/30/2022
4:08:02 PM
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                          following:
                                                              ORDER

This order shall govern the disposal of WP No. 536/17 as well. For the sake of convenience, facts as narrated in WP No. 7258/16 are taken note of.

In this petition, the petitioner is assailing the award dated 11-12-2015 at the behest of the workmen. As per the facts as incorporated in the petition, the petitioner/workmen was engaged by the respondent/bank and he worked with the respondent/bank for a period of 48 days during July to Sept. 1990 in Gopalganj Branch, 85 days during January to May, 1991, for 110 days in Civil Line Branch during July to October, 1992 and 129 days during January to July

1993. However, his services ultimately have been dispensed with which ensued in a Reference, which was proposed to be decided by the CGIT-cum- Labour Court in terms of Section 10 of Industrial Disputes Act, 1947 and therefore, the CGIT-cum-Labour Court while dealing with the Reference ultimately adjudicated the dispute and found the petitioner/workmen entitled for amount of compensation to the tune of Rs. 30,000/-. However, so far as reinstatement claim was concerned, the same was declined.

Counsel for the workmen contends that the order passed by the CGIT- cum-Labour Court deserves to be quashed inasmuch as, the workmen established that he had worked for 240 days in calendar months preceding to the date with reference to which, calculation is to be made, he was entitled to be reinstated and therefore, the finding so arrived at by the Court below in paragraph-11 of the impugned award deserves to be quashed.

The counsel also submits that the amount of compensation is inadequate inasmuch as, looking to the tenure of employment, compensation ought to have been assessed in terms of law laid down by the Apex Court in the case of Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM

Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh ( 2013) 5 SCC 136. The counsel submits that the petitioner ought to have been paid the compensation proportionate to the tenure with the respondent. The counsel also submits that the impugned award, so far as, it declines the benefit of reinstatement goes contrary to the law laid down by this Court in WP No. 14505/14 ( Mahesh Kumar Chouriya Vs. Union Bank of India) inasmuch as, once it was established that the workmen had worked for more than 240 days preceding the dispute, the benefits of reinstatement could not have been declined and secondly, in view of the law laid down by this court i n WP No. 5833/2013 ( Chief General Manager, Department of Telecommunication & Another Vs. Manish Dubey) , the petitioner is also entitled to compensation commensurating with services rendered by him with the respondent.

The same order is assailed by the employer/Management in connected WP No. 536/17. The counsel for the Management/employer while opposing the contentions of the workmen in WP No. 7258/16 submits that the award impugned deserves to be set aside inasmuch as, the workmen has failed to establish that he had worked for 240 days. The counsel for the respondent submits that even if the days of work as mentioned in the the statement of claim of the workmen are taken into consideration, the same would reveal that the

workmen did not work for 240 days in a calendar year. Thus, submits that the CGIT-cum-Labour Court committed an error while allowing the compensation of Rs. 30,000/- to the workmen. The counsel submits that the Labour Court did not commit any error in declining the relief of reinstatement to the workmen however, committed an error while passing an order of compensation to the tune of Rs. 30,000/- in favour of the workmen. Counsel for the employer Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM

submits that looking to the tenure of the workmen with the respondent, the amount of compensation is exorbitant and the same could not have been awarded to the workmen.

Learned counsel for the respondent while taking this court to the statutory provisions of Industrial Disputes Act, 1947 submits that the completion of 240 days in a calendar year was not established by the respondent and therefore, the respondent was not entitled for any relief and submits that in the light of decision of Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another(supra) and Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation (1985) 4 SCC 71, the impugned award deserves to be quashed.

Having heard the rival submissions of the parties, it would be appropriate to deal with the question as to whether the petitioner/workmen has completed 240 days in a calendar year or not? A perusal of paragraph-3 of the statement of claim ( Annexure P/2) reveals that the claimant asserted before the Court below that he had worked with the respondent/employer w.e.f 12-07-1992 to 26-07- 1993. This statement was further supported by the workmen in his cross- examination, which is also evident from perusal of Annexure- P/4. The workmen clearly stated that he worked from July, 1992 to October, 1992 for a period of 110 days and then from January, 1993 to July, 1993 for a period of 129 days. Thus, according to workmen in a last preceding year, in the present case commencing from July, 1992 to July 1993, the workmen worked for ( 110 +129 days= 239 days). It is also relevant to take into consideration the reply filed by the employer before the CGIT and a perusal of the same reflects that

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM

the contents of paragraph-3 of the statement of claim were not disputed by the respondent/employer. Section 25-B of Industrial Disputes Act, 1947 specifically provides that an employee shall be deemed to be in continuous service under an employer for a period of 1 year, if during a period of 12 calendar months preceding the date with respect to which calculation is to be made as actually worked under the employer for not less than 240 days. In the present case, the calculation of 240 days is to be carried out while taking into consideration the date on which, the employee services were dispensed with. In the present case, the workmen has contended that his services were dispensed with w.e.f 26-07- 1993 and this date has not been disputed by the employer by filing the reply to the statement of claim. Moreover, the witness of the employer, also admitted in his affidavit, that the holidays and Sundays have not been taken into consideration. Thus, the workmen has worked for 239 days is not at all disputed by the employer and in the light of the decision of the Apex Court in the case of Workmen of American Express (supra) and also in the light of the decision in the case of Ram Kishan Gurjar Vs. State of Rajasthan and another 2006 LAB I.C. 56 ( Relied upon by the court below), if the holidays as well as Sundays are added, the employees working days would be much more than 240 days during the last 12 months preceding his termination.

The Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another(supra) held in paragraphs- 27 and 29 as under:-

"27. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases o f wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM

the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.

29. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement o f the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum"

A perusal of the judgment of the Apex Court reflect that the Apex Court i n Assistant Engineer, Rajasthan Development Corporation and another(supra) while observing that the workmen therein had worked for a period commencing from 01-03-1991 to 31-10-1991 held that the award pertaining to reinstatement of the employee as well as grant of 25% of backwages was unsustainable and accordingly, quashed the same and awarded compensation to the tune of Rs. 50,000/- to the workmen. While placing reliance on the decision of the Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another(supra), this court in WP No. 5833/2013( Chief General Manager, Department of Telecommunication

Signature Not Verified & Another Vs. Manish Dubey), while taking into consideration that the Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM

workmen had worked for 6/7 years with the respondent, granted Rs. 2,50,000/- compensation. Paragraph-20 of the order passed by this court in WP No. 5833/13 is reproduced herein:-

"20. In (2013) 5 SCC 136 (Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh), the Apex Court considered the factors which needs to be taken into account while granting consequential relief. In the said case, it is held that in case of wrongful termination of a daily wager, who has worked for a short period, the award of reinstatement is not the proper relief rather award of compensation would be in consonance with the demand of justice. In the said case, the workman has worked for about eight months (from 1.3.1991 to 31.10.1991). The Apex Court modified the order of reinstatement with 25% back wages to the extent of grant of compensation of Rs.50000/-. In the present case, as noticed, the workmen have worked for much longer period. The Tribunal has granted them Rs.1,50,000/- as compensation. As noticed, in view of the services rendered by the workmen, they are entitled for more compensation than what has been ordered. The Tribunal has also granted the benefit of retrenchment compensation. Considering the fact that the duration of employment of present workmen was much longer than the employee in the case of Gitam Singh (supra), I deem it proper to enhance the amount of compensation to Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand) each in lieu of Rs.1,50,000/-, directed by the Tribunal. This amount shall be paid in addition to the retrenchment compensation, which has been directed to be given by the Tribunal. The said amount shall be paid to the workmen within ninety days from the date of production of copy of this order, failing which it will carry 9% interest up to the date of realisation."

If the award by the Central Government Industrial Tribunal is tested on the anvil of the law laid down by the Apex Court in Assistant Engineer, Rajasthan Development Corporation and another(supra), it would reveal that the workmen herein worked with the employer for 48 days between July to September 1990, 85 days between January to May 1991, 110 days during July Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM

to October, 1992 and 129 days during January to July 1993. Thus, in the considered view of this court, the CGIT did not commit any error while declining the relief of reinstatement taking into consideration the tenure of employment however, in the opinion of the court, the compensation awarded to the employee deserves to be modified as for much shorter tenure of approximately 7 months, the Apex Court awarded Rs. 50,000/- compensation to the employee in the case of Assistant Engineer, Rajasthan Development Corporation and another(supra).

Accordingly, the award dated 11-12-2015 is modified to the extent that the petitioner/workmen shall be entitled for a sum of Rs. 50,000/- as compensation instead of Rs. 30,000/-. The remaining award passed by the CGIT-cum-Labour Court, Jabalpur stands affirmed.

Thus, in view of the aforesaid, WP No. 7258/16 stands allowed to the extent indicated hereinabove and WP No. 536/17 stands dismissed.

(MANINDER S BHATTI) JUDGE PG

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/30/2022 4:08:02 PM