Assistant General Secretary vs Assistant General Manager
2024 Latest Caselaw 13582 MP

Madhya Pradesh High Court

Assistant General Secretary vs Assistant General Manager on 10 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                         1          W.P.No.1578/2017 & W.P.No.17721/2018



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 10th OF MAY, 2024
               WRIT PETITION No. 1578 of 2017

BETWEEN:-

ASSISTANT GENERAL SECRETARY AKHIL
BHARTIYA ADHINASTH BANK KARMCHARI
SANGH P.B. NO. 62, LASHKAR GWALIOR
(MADHYA PRADESH)
                                                       .....PETITIONER
(BY Ms. ANSHIKA YADAV - ADVOCATE)

AND

1.    ASSISTANT GENERAL MANAGER STATE
      BANK OF INDORE NOW STATE BANK OF
      INDIA REGIONAL OFFICE, MODI HOUSE
      JHANSI ROAD,   GWALIOR (MADHYA
      PRADESH)

2.    / NOW STATE BANK OF INDIA REGIONAL
      OFFICE MODI HOUSE JHANSI ROAD
      (MADHYA PRADESH)
                                                   .....RESPONDENTS
(RESPONDENT NO.1 BY SHRI PRAVEEN YADAV- ADVOCATE)

              WRIT PETITION No. 17721 of 2018

BETWEEN:-

ASSISTANT GENERAL MANAGER STATE
BANK OF INDIA REGIONAL OFFICE MODI
HOUSE JHANSI ROAD, GWALIOR M.P.
(MADHYA PRADESH)

                                                       .....PETITIONER
                              2           W.P.No.1578/2017 & W.P.No.17721/2018



(BY SHRI PRAVEEN YADAV - ADVOCATE)

     AND

ASSISTANT GENERAL SECRETARY AKHIL
BHARTIYA ADHINASTH BANK KARMCHARI
SANGH R/O P.B. NO. 62 LESKAR GWALIOR
M.P. (MADHYA PRADESH)

                                                        .....RESPONDENTS
(BY MS. ANSHIKA YADAV ADVOCATE)

      This petition coming on for admission this day, the court passed
the following:
                                 ORDER

By this common order W.P.No.17721/2018 shall also be decided.

2. Both these petitions arise out of the single award dated 30.08.2016 passed by CGIT, Jabalpur in Case No.CGIT/LC/R/89/2002.

3. W.P.No.1578/2017 has been filed by the Union on behalf of the workmen whereas W.P.No.17721/2018 has been filed by the employer.

4. The workman was working on the post of Peon. Since, his services were terminated w.e.f. 15.12.1999, therefore the Government of India, Ministry of Labour made a reference by letter dated 31.05.2002 by referring a question as to "whether the action of the management of Assistant General Manager, State Bank of Indore, Central Office, Gwalior in terminating the services of Shri Vijay

Khurana w.e.f. 15.12.1999 is justified? If not what relief the workman is entitled".

5. After considering the claim and counterclaim of the parties, the Tribunal passed an award on 30.08.2016 by holding that the workman had worked for more than 240 days in each calendar year and his termination without payment of retrenchment compensation was bad however instead of directing for reinstatement, the Tribunal directed for payment of compensation of Rs.1,00,000/- to the workman by way of retrenchment compensation.

6. By filing W.P.No.1578/2017, the Union has challenged the grant of retrenchment compensation in place of reinstatement whereas by filing W.P.No.17721/2018, the employer has challenged the findings regarding the fact that the termination of workman was illegal being violative of provisions of Section 25 (f) of Industrial Disputes Act.

7. So far as the findings given by the Tribunal with regard to the fact as to whether the workman had worked for more than 240 days in each calendar year is concerned, the Tribunal has held that the management has failed to produce the documents to show that the workman had not worked from 1993-1999. The Tribunal has also held that since the material documents were withheld, therefore adverse inference has to be drawn against the management because it has to be presumed that if those documents would have been produced, it would have supported the claim of the workman, therefore it was held that there is sufficient evidence that the workman had worked more than 240 days.

8. Counsel for the management could not point out any illegality in such finding. Accordingly, finding of the Tribunal that workman had worked for 240 days preceding one year of his termination are hereby upheld.

9. Therefore, the petition filed by the Employer i.e. W.P.No.17721/2018 is hereby dismissed.

10. So far as the petition filed by the workman is concerned, the CGIT had awarded retrenchment compensation in lieu of reinstatement.

11. The Supreme Court in the case of Ram Manohar Lohia Joint Hospital Vs. Munna Prasad Saini reported in 2021 (iii) MPWN 29 has held as under:-

"10. In Deputy Executive Engineer v. Kuberbhai Kanjibhai, [(2019) 4 SCC 307] this Court had referred to several earlier judgments and had quoted with approval the ratio as expounded in Bharat Sanchar Nigam Limited v. Bhurumal [(2014) 7 SCC 177] to the following effect:

"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 a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way ofreinstatement unless there are some other weighty 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." victimisation, 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. Rationale 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 pay as mandatorily required under section 25F 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 regularisation [see State of Karnataka v. Umadevi (3)]. Thus when he cannot claim regularisation 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 unfai labour practice or in violation of the principle of last come first-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 regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty 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."

11. This dictum was again followed in State of Uttarakhand and Another v. Raj Kumar [(2019)14 SCC 353] and Ranbir Singh v. Executive Eng. P.W.D. [2021 SCC OnLine SC 670].

12. In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers: such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of section 25F of the Industrial Disputes Act, 1947. Therefore, in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and

would enhance the compensation by awarding a lump sum amount."

....................................

12. The Supreme Court in the case of Jayant Vasantrao Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC 244 has upheld the grant of compensation in lieu of reinstatement as the respondent had merely worked for a period of one year.

13. The Supreme Court in the case of Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC 190 has held as under:-

"19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case. SCC pp. 187-88. paras 29-30)

29. The learned counsel for the appellant referred to two judgments wherein this Court grantedMan Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.

30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various

judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4)

2. Should an order of reinstatement automatically follow in a case where the engagement of a daily- wager has been brought to an end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.

3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, delivering the judgment of this Court. one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Lid. v. Uday Narain Pandey. Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute. Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows: (Jagbir Singh case, SCC pp. 330 & 335, paras 7 & 14)

7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however. be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination. particularly. daily-wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily-wager who does not hold a post and a permanent employee.

"4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, wherein this Court stated: (SCC p. 777. para 11)

11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily- wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."

21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant I would not be entitled to reinstatement............."

12. Thus, it is clear that the award of retrenchment compensation in lieu of reinstatement is in accordance with law.

13. Since, no illegality was committed by the CGIT by awarding compensation in lieu of reinstatement; therefore, W.P.No.1578/2017 filed by employer is also hereby dismissed.

(G.S. AHLUWALIA) JUDGE

VB*