Orissa High Court

Suresh Chandra Jena vs Presiding Officer on 23 February, 2023

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                           WP(C) No.12550 of 2018

   Suresh Chandra Jena                             ....                      Petitioner
                                        -versus-
   Presiding Officer, CGIT-cum-                    ....              Opposite Parties
   Labour Court, Bhubaneswar and
   others
   Advocates appeared in this case :

   For Petitioner             : Mr. S.N. Panda, Advocate

   For Opposite Parties : Mr. B.B. Swain, Advocate.
   CORAM:
   JUSTICE ARINDAM SINHA
   JUSTICE SANJAY KUMAR MISHRA

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    Date of hearing : 20.02.2023 and 22.02.2023
    Date of Judgment: 23.02.2023
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   ARINDAM SINHA, J.

1. Petitioner's contention is he was engaged as a daily wager in a

newly opened branch of the bank. He was made to do work of Peon

and worked continuously for 440 days, inclusive of Sundays and

public holidays. This period of work was without blemish on his

performance. Unfortunately for him, the bank removed him from

service and thereupon engaged another in his place.

2. Mr. Panda, learned advocate appeared on behalf of petitioner

and submitted, a bank cannot function without a Peon. That is the

purpose, for which his client was employed in the branch. As such, his

client was working against a sanctioned post. He relied on view taken

by a learned Single Judge of this Court in Jema Toppo v. State of

Orissa, reported in 2020 (I) OLR 283 for the proposition that one

daily wager cannot be replaced by another.

3. His client has challenged award dated 28th February, 2018

because it did not direct reinstatement with back wages. His client was

entitled to reinstatement with back wages and thereupon

regularization. On query from Court he submitted, his client is now 51

years of age.

4. Pursuant to leave granted by our earlier order dated 1st

February, 2023 his client filed affidavit dated 6th February, 2023. Mr.

Panda also filed memo dated 6th February, 2023 enclosing therewith

Settlement dated 19th October, 1966, on the industrial disputes

between certain banking companies and their workmen as issued by

the Indian Banks' Association, commonly known as the bipartite

settlement. He relied on clause 20.8 in the bipartite settlement,

providing for appointment of temporary workman to fill up a

permanent vacancy.

5. He cited judgment of the Supreme Court in Ramesh Kumar

v. State of Haryana, reported in AIR 2010 SC 683, paragraphs 12

and 13. He prayed for interference.

6. Mr. Swain, learned advocate appeared on behalf of the bank.

He first took us to order of reference dated 12th December, 2012. He

pointed out from the schedule that the issue was regarding termination

of petitioner with effect from 21st August, 2010, whether without

complying with provisions of Industrial Disputes Act, 1947. The

question of relief was consequential to the issue.

7. He then submitted on reliance of impugned award that on the

question of relief the Tribunal found, the term of reference was

specific and it was required to adjudicate whether the action of the

management, in terminating service of the workman without

complying with the provisions, was legal and justified. In that view of

the matter, the Tribunal correctly found, question does not arise to

consider the claim of regularization put forth by the workman. Further

finding was, the appointment/engagement was not against any

sanctioned post and his employment was not in accordance with the

recruitment rules. Only consideration in his favour was that he had not

been given any notice or notice pay as well as compensation before

refusal of employment/disengagement. There was, therefore, award

for payment of compensation at Rs.40,000/-, which the bank has paid.

On query from Court he submitted, the amount was directly credited

in the account of the workman.

8. On 22nd February, 2023 Mr. Swain filed memo of date. He

submitted, disclosed by the memo was Memorandum of Settlement

dated 2nd June, 2005 between the managements of fifty banks as

represented by the Indian Banks' Association and their workmen,

represented by All India Bank Employees' Association and others.

He drew attention to sub-clause (iii) under clause 2 in the Terms of

the Settlement (General) to submit, the bipartite settlement, as

subsequently modified and ultimately by this settlement, shall

continue to govern the service conditions of the workmen except to

the extent the same are modified by the settlement. On query from

Court he submitted, there had been no modification to clause 20.8 in

the bipartite settlement. He opposed interference.

9. We reproduce below statements made by the workman in his

affidavit dated 6th February, 2023.

"1. That I am the petitioner in the above mentioned writ petition.

2. That I had performed the duties of peon on daily wage basis at Jaleswar Branch of U.Co. Bank from 05.01.2009 till 20.03.2010 uninterruptedly up the satisfaction

of the officials of the Branch for 440 days inclusive of Sundays and Public holidays (detailed list is enclosed).

3. The Branch opened on 06.01.2009. With the posting of a Manager one Asst. Manager and myself as peon, one day prior to the opening of the Branch to work for opening work of the Branch.

4. That I was disengaged by the Branch Manager with effect from 21.03.2010 without any notice for the same.

5. That one, Sri Akshaya Patra has been working as daily wager at the branch as on date.

6. That I learnt that more than 100 persons have been working as daily wagers for years together at different branches of the Bank in the State of Odisha at present."

(emphasis supplied) We also reproduce below relied upon clause 20.8 from the bipartite

settlement dated 19th October, 1966.

"20.8. A temporary workman may also be appointed to fill a permanent vacancy provided that such temporary appointment shall not exceed a period of three months during which the bank shall make arrangements for filling up the vacancy permanently. If such a temporary workman is eventually selected for filling up the vacancy, the period of such temporary employment will be taken into account as part of his probationary period."

(emphasis supplied)

We think it fit to reproduce a passage from paragraph 3(ii) in the

written statement filed by the bank.

"xxx The disputant having some acquaintance of computer operations, he was perhaps given access personally by the Bank Manager to some computerized operations in the Branch Bank, which were initiated near about the same time. However, such engagement of the second party disputant was not only without the knowledge of the competent Authorities of the Bank, but also it was without following the due procedure of recruitment in the Bank. It is relevant to state that neither the Bank had advertised for any such post in the Jaleswar Branch nor the disputant was ever employed against any defined post whatsoever. xxx"

(emphasis supplied) It will appear from the affidavit that the workman by his allegations

has implied there was violation of provisions in section 25G and H.

After terminating his service he had clearly alleged, in the

adjudication before the Tribunal that another daily wager had been

appointed after him. We have ascertained from Mr. Swain that there

has not been regular appointment of a Peon in concerned branch.

10. The Supreme Court in Ramesh Kumar (supra) had said in

paragraph 13 as is reproduced below.

"13. We are conscious of the fact that an appointment on public post cannot be made in contravention of recruitment rules and constitutional scheme of

employment. However, in view of the materials placed before the Labour Court and in this Court, we are satisfied that the said principle would not apply in the case on hand. As rightly pointed out, the appellant has not prayed for regularization but only for reinstatement with continuity of service for which he is legally entitled to. It is to be noted in the case of termination of casual employee what is required to be seen is whether a workman has completed 240 days in the preceding 12 months or not. If sufficient materials are shown that workman has completed 240 days then his service cannot be terminated without giving notice or compensation in lieu of it in terms of Section 25F. The High Court failed to appreciate that in the present case appellant has completed 240 days in the preceding 12 months and no notice or compensation in lieu of it was given to him, in such circumstances his termination was illegal. All the decisions relied on by the High Court are not applicable to the case on hand more particularly, in view of the specific factual finding by the Labour Court."

(emphasis supplied)

11. The Tribunal upon having found that the workman had

continuously worked for 240 days and was entitled to compliance with

provisions in section 25F, thereafter completely omitted to consider

his entitlement to reinstatement with back wages. This claim was

overlooked in adjudication on the question of relief because the

Tribunal adverted to the workman's claim of regularization. The

Tribunal dealt with the claim in saying that it could not be allowed

since the appointment/ engagement was not against any sanctioned

post and his employment was not in accordance with the recruitment

rules of the bank.

12. Where there has been violation of section 25F, question of

relief regarding reinstatement with back wages does arise. This is

irrespective of whether the workman is a regular employee or

temporary worker. As aforesaid, the Supreme Court in Ramesh

Kumar (supra) noticed this entitlement in respect of, in that case,

temporary workman having claimed reinstatement with back wages.

13. We have no hesitation in relying on the bipartite settlement,

clause 20.8. We find that the bank violated said clause not only in not

considering petitioner for appointment to the permanent vacancy on

having continued with his service exceeding period of three months

but also, during the period not having made any arrangement to fill up

the vacancy permanently. They did not do so ever thereafter. Even if

the workman had not been able to produce and rely upon this bipartite

settlement in the adjudication, it was best evidence and the bank was

obliged to have produced it. For the proposition reference can be made

to judgment of the Supreme Court in Hiralal v. Badkulal, reported in

AIR 1953 SC 225, paragraph 4.

14. We have not been made aware of any dispute regarding that

upon petitioner having had been discharged from service of Peon,

another daily wager was appointed and we have no doubt in our mind

that a branch of a bank cannot run without such service rendered.

There is indication that in addition to violation of provisions in

sections 25G, H and F, the bank adopted unfair labour practice.

15. In facts and circumstances aforesaid, there has been finding on

relief not based on relevant material. As such, the finding and

direction to pay compensation at Rs.40,000/- is perverse. We set aside

that part of impugned award and restore adjudication on the question

to the Tribunal. Parties will produce this order in the Tribunal on 28th

February, 2023. The Tribunal is directed to adjudicate the question

expeditiously and within three months therefrom. The Tribunal will

afford opportunity to the parties to file supplementary pleadings and

adduce further evidence, if they so desire.

S.K. Mishra,J.

16. The Supreme Court in Deepali Gundu Surwase v. Kranti

Junior Adhyapak Mahavidyala, reported in (2013) 10 SCC 324

held that if the employer wants to deny back wages to the employee or

contest his entitlement to get consequential benefits, then it is for

him/her to specifically plead and prove that during the intervening

period the employee was gainfully employed and was getting the same

emoluments. Reproduced below is paragraph 22 from the judgment.

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer- employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving

him of the obligation to pay back wages including the emoluments."

Admittedly, neither there is any pleading to the said effect in the

written statement filed by the management before the Tribunal nor

evidence was laid to deny back wages to the petitioner, so also to

mould the relief by awarding lump sum compensation in lieu of

reinstatement and back wages. Hence, the CGIT-cum-Labour Court

was not justified to award Rs.40,000/- lump sum compensation in lieu

of reinstatement and back wages despite its finding of violation of

section 25F of the Industrial Disputes Act, 1947. We make it clear that

the amount of Rs.40,000/-, which has already been paid to the

workman, will be adjusted against further relief, if any, awarded in

favour of the workman on remand.