T. Buchi Ramulu vs Nalgonda Dist.Coop.Central Bank ...
2022 Latest Caselaw 59 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


              WRIT PETITION NO.19616 OF 2003,
               WRIT PETITION NO.5561 OF 2003,

               WRIT PETITION NO.5562 OF 2003,
                                AND
               WRIT PETITION NO.5569 OF 2003


                        COMMON ORDER


      These Writ Petitions are filed by the petitioners under Article

226 of the Constitution of India seeking a Writ of Mandamus

declaring the award dt.30.01.2002 in I.D.No.178 of 1998, I.D.No.175

of 1998, I.D.No.177 of 1998 and I.D.No.171 of 1998 on the file of the

Labour Court-III, Hyderabad, as arbitrary, illegal and contrary to the

evidence on record and to pass such other order or orders as this Court

may deem fit and proper in the circumstances of the case.


2.    Brief facts are that the petitioner in each of the Writ Petitions

was an employee and was appointed as Casual Labour by the

respondent bank in the year 1991/1992. Their services were

terminated in the year 1995. Since they have completed more than 240

days of continuous service in all the calendar years, the petitioners

challenged the termination orders by filing Industrial Disputes before

the Labour Court. It was submitted that the termination orders were

illegal as the respondent has opened new branches at various other

places and was in need of employees to be posted in those branches W.P.Nos.19616, 5561, 2 5562 and 5569 of 2003

and since the petitioners were fully qualified, they should have been

considered on regular basis in clear vacancies instead of being

terminated as excess staff. Questioning the same, the petitioners had

filed W.P.No.10230 of 1995, in which this Court held that the

termination of the petitioners without following the rules and

procedure is not proper. In accordance therewith, the petitioners were

continued in service till 31st July, 1995 and thereafter, they were again

terminated with effect from 31.07.1995. Challenging the same, the

petitioners again filed W.P.No.22092 of 1995 and vide orders

dt.21.08.1997, this Court allowed the Writ Petition and directed the

respondents to continue the petitioners in service. However, the

respondent filed W.A.No.1212 of 1997 before this Court and vide

orders dt.07.12.1997, the order in W.P.No.22092 of 1995 was set

aside and liberty was given to the petitioners to avail alternative

remedy as available. Consequent thereto, the petitioners filed

Applications before the Labour Court and the Labour Court has

passed the orders holding that the petitioners, who were given notice

under Section 25(4) of the Industrial Disputes Act, 1947, were

terminated thereafter by paying salary in lieu of one month's notice.

Challenging the said awards, these Writ Petitions are filed.

3. Learned counsel for the petitioners, Sri M. Rama Rao,

submitted that if the petitioners were to be retrenched by the

respondent bank, the mandatory provisions of Section 25-F of the

Industrial Disputes Act were to be followed. He submitted that the W.P.Nos.19616, 5561, 3 5562 and 5569 of 2003

Labour Court has taken note of the fact that the petitioners were in

service till 31.07.1995, but however has held that the notices were

refused by the petitioners and also that cheque numbers were

mentioned in the notices. He submitted that when the respondent bank

was not able to service notice on the petitioners, the respondent ought

to have followed alternative mode of service of notice i.e., by sending

through registered post with acknowledgement due or by publishing

in newspapers. Instead, it was resorted to sending the notices by

Messengers. It is submitted by the learned counsel for the petitioners

that the Labour Court had erroneously relied upon the entries in the

Tapal Register to hold that the notices were sent by the respondent

bank, but the said Tapal Messenger was not examined by the Court.

Therefore, according to him, there is total non-application of mind by

the Tribunal and about non-following of the procedure by the

respondent bank before retrenching the petitioners. Therefore, he

prayed that the petitioners be treated as the employees of the

respondent bank and be awarded the wages for the period of removal

till the date of reinstatement. In support of his contentions that where

notice could not be served on the petitioners, alternative modes of

service have to be adopted, he placed reliance upon the following

decisions:

(1) S. Ramachandra Alse Vs. Dy. General Manager, Syndicate Bank, Hyderabad and another1.

    1999 (3) ALT 716 (S.B.)
                                                        W.P.Nos.19616, 5561,
                                   4                   5562 and 5569 of 2003

(2) The Cawnpore Tannery Ltd., Kanpur Vs. S. Guha and others2.

(3) Union of India and others Vs. Dinanath Shantaram Karekar and others3.

(4) Ramesh Kumar Vs. State of Haryana4.

4. Learned counsel for the respondent, Sri V. Brahmaiah

Chowdary, on the other hand, relied upon the contentions made by the

respondent bank before the Labour Court which have been mentioned

in the award. He submitted that while retrenching the petitioners,

sufficient notice along with pay for a period of one month was given

to the petitioners but they refused to accept the same and therefore,

the notices were sent by personal Messengers and since they refused

to take such notices and the cheques, it is to be presumed that the

notices were legally or properly served on the petitioners.

5. Having regard to the rival contentions and the material on

record, the question before this Court is whether the respondent bank

has followed due procedure while retrenching the petitioners from

service. It is not disputed that there was excess staff in the bank and

the petitioners were the extra staff and therefore, the respondent bank

had resorted to retrenchment of the excess staff. In such

circumstances, the respondent bank was required to follow the due

procedure under Section 25-F of the Industrial Disputes Act.

According to the respondents, they have issued notices/orders along

AIR 1967 Supreme Court 667

AIR 1998 Supreme Court 2722

AIR 2010 Supreme Court 683 W.P.Nos.19616, 5561, 5 5562 and 5569 of 2003

with one month salary in lieu of the period of notice, but the

petitioners have refused to acknowledge the same and therefore it was

constrained to post same in the Notice Board of the bank. The

contention of the petitioners that the petitioners have worked till

31.07.1995 and therefore the question of posting the notice in the

Note Board does not arise and therefore the respondent bank has not

followed the due procedure. However, it is seen that though the

petitioners were retrenched from service from 29.07.1995, it is only

by virtue of the interim order of this Court that they continued up to

31.07.1995 and since they were aggrieved by the termination orders, it

cannot be ruled out that they would have refused to receive the notices

of retrenchment under Section 25-F of the Industrial Disputes Act.

The Labour Court has brought out that the notices were duly issued

along with the cheques and therefore held that the respondent bank

has duly followed the procedure. Merely on the principle of

probability, this Court cannot disturb the finding of fact by the Labour

Court. The decisions relied upon by the learned counsel for the

petitioners are to the effect that where the mode of service of notice

prescribed under the Act fails, the respondent employer ought to have

resorted to alternative mode of service of notice. In this case, since the

petitioners and the respondent are the employer and employees and

the employees though were present physically refused to take notices,

the notices were put up in the Notice Board of the respondent bank.

Since the petitioners were working till 31.07.1995, the display of the W.P.Nos.19616, 5561, 6 5562 and 5569 of 2003

notices in the Notice Board of the bank is sufficient service of notice

on the petitioners. Therefore, the judgments relied upon by the learned

counsel for the petitioners do not come to the rescue of the petitioners

as there is no violation of any of the procedures by the respondent

bank. It is further submitted by the learned counsel for the respondent

that all the petitioners have subsequently been employed with the

respondent bank after they have applied to the respective posts

pursuant to the Notifications issued by the bank. Another question to

be answered is whether in the absence of clear vacancies, can the

respondent bank be directed to engage the petitioners? It has been

held in a number of cases that the employer cannot be compelled to

continue to employees without there being a clear vacancy or there

being expediency for work. Therefore, there is no merit in these Writ

Petitions.

6. The Writ Petitions are accordingly dismissed. No costs.

7. Pending miscellaneous petitions, if any, in these Writ Petitions

shall also stand dismissed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 05.01.2022 Svv