Andhra Bank v. Dil Bahadur

1. The present writ petition filed by the management/Andhra Bank assails the Award 14.12.2015 passed by the Central Government Industrial Tribunal, Karkardooma Courts, Delhi in ID No.295/2011. Under the impugned Award, the Labour Court after holding that the services of the respondent had been illegally terminated, has directed the petitioner to reinstate him with 50% back wages.

2. The respondent/workman claiming to have been appointed as a part time sweeper at the Palam Vihar branch of the petitioner Bank on 01.01.2007, raised an industrial dispute with the grievance that his services had been illegally terminated w.e.f 02.04.2010 without any notice or enquiry, simply at the verbal order of the petitioner’s Branch Manager. The dispute raised by him was referred to the Labour Court, upon failure of conciliation proceedings, on 19.07.2011in the following terms:- “Whether the action of the management of Deputy General 2019:DHC:7110 Manager, Andhra Bank, Chandigarh in terminating the services of Shri Dil Bahadur, Ex-Part Time Sweeper at Palam Vihar, Gurgaon branch with effect from 02.04.2010 is just, fair and legal? What relief the workman is entitled to”

3. Before the Labour Court, the respondent filed his claim petition averring therein that he had been discharging his duties sincerely and to the utmost satisfaction of his superiors, when he was suddenly terminated on 02.04.2010, under the verbal orders of the Branch Manager and that too without any show cause notice or inquiry, which action was violative of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘ID Act’).

4. The petitioner filed its written statement denying that the respondent had ever been appointed by the Bank and claimed that his services were only being utilised for short periods by the Manager at its Palam Vihar branch as a casual labourer till regular appointments to the posts of sweeper were made in accordance with the Bank’s regulations. It was specifically denied that there was any employer-employee relationship between the parties. The respondent’s claim that he had worked continuously from 01.01.2007 till 02.04.2010 and that he had completed 240 days of service in each calendar year was also denied by the petitioner.

5. After both the parties led their respective evidence, the Labour Court vide its impugned award has allowed the respondent’s claim. The Court observed that once the respondent was subject to the discipline of the Bank which was regularly engaging part time employees as per the terms of the Shastri Award, he was a workman within the meaning of Section 2(s) of the ID Act, therefore, his termination without following the procedure prescribed under Section 25F of the ID Act, was illegal and consequently directed the petitioner to reinstate him with 50% back wages.

6. Assailing the Award, Mr. Jagat Arora, learned counsel for the petitioner submits that the very premise of the impugned Award that the petitioner Bank had admitted having engaged the respondent as a part time Sweeper, is contrary to record. He submits that the petitioner had categorically averred in its written statement that the respondent was never engaged as per the recruitment Rules of the Bank and it is only the Branch Manager, who had casually utilised his services from time to time by way of a stop gap arrangement. There was never any employer-employee relationship between the parties and therefore the respondent was not a workman within the meaning of Section 2(s) of the ID Act. He thus contends that there was no obligation on the petitioner to comply with Section 25F of the ID Act which aspect the Labour Court has failed to appreciate. He, therefore, submits that the impugned Award is liable to be set aside on this ground alone.

7. Without prejudice to his submission that the respondent was not a workman within the meaning of Section 2 (s) of the ID Act, Mr. Arora submits that in any event, keeping in view the admitted position that the respondent was a casual labourer who had served the petitioner’s Palam Vihar branch for only about 3 years and that too without being recruited as per the prescribed procedure, the direction to reinstate him with 50% back wages was wholly unwarranted. He submits that in holding the petitioner’s action to be in violation of Section 25Fof the ID Act resulting in the directions for reinstatement and back wages, the Labour Court has failed to appreciate that the respondent was only a casual workman and not a regular or permanent employee of the petitioner bank; therefore, as per the ratio of the recent decisions of the Supreme Court in State of Uttarakhand & Anr Vs. Raj Kumar [C.A.Nos.124-125/2019], Deputy Executive Engineer Vs. Kuberbhai Kanjibhai [(2019) 4 SCC 307], Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota Vs. Mohan Lal, [(2013) 14 SCC 543], Assistant Engineer Rajasthan Development Corporation Vs. Gitam Singh [2013 (5) SCC 136] and of this Court in Association of State Road Transport Undertaking Vs. Devender Singh [W.P.(C)No.2354/2012], the respondent could have, at the most, been awarded monetary compensation.

8. Mr. Arora, thus submits that in the light of the facts that the respondent was drawing monthly wages of only Rs.2,512/- at the time of his alleged termination and that he had already received compensation amounting to the tune of Rs.1,13,040/- by way of benefits under Section 17B of the ID Act, he is neither entitled to reinstatement nor to any further compensation. He, therefore, prays that the writ petition be allowed and the impugned Award be set aside.

9. On the other hand, learned counsel for the respondent, while supporting the impugned Award, submits that the petitioner Bank is maintaining a permanent cadre of part-time Sweepers and therefore its denial of having engaged the respondent or of him being a workman under Section 2 (s) of the I.D. Act is contrary to the record and was rightly rejected by the Labour Court. He submits that since the respondent was receiving regular salary and bonus in his bank account, his status was akin to that of a permanent employee and, therefore, once the Labour Court found that he had been illegally terminated in violation of Section 25F of the ID Act, the Court was justified in directing his reinstatement with back wages. By placing reliance on the decision in R.M. Yellatti Vs. Assistant Executive Engineer [(2006) 1 SCC 106], he submits that the Supreme Court has time and again noted the exploitation of daily wage workmen by employers who fail to provide them with the requisite service documents, further compounded by the practice of employers maintaining muster rolls on loose sheets of paper, so that these workmen can be terminated abruptly without following any procedure whatsoever. By placing reliance on the decisions of the Supreme Court in Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari [(2005) 10 SCC 792], the Madras High Court in Vijaya Bank Workers Vs. Central Government Industrial Tribunal [W.P.(C)4517/2002] and of this Court in Municipal Corporation of Delhi Vs. Krishan Kumar [W.P.(C)No.5513/2004], he contends that once the respondent’s termination was found to be illegal, he was entitled to be placed in the same position in which he would have been, had the petitioner not illegally terminated him. He further submits that denying reinstatement and back wages to the respondent would tantamount to putting a premium on the petitioner’s illegal action and, therefore, prays that the writ petition be dismissed.

10. Having considered the submissions of the learned counsel for the parties and with their assistance perused the record, I am unable to agree with the petitioner’s first contention. Once it was the petitioner’s own case that the respondent had been engaged at its Palam Vihar branch as a parttime Sweeper for intermittent periods between January, 2007 to March, 2010 coupled with the petitioner’s failure to produce the relevant attendance records despite directions by the Court, it cannot be said that the Labour Court’s finding that there was an admission by the petitioner that the respondent had been engaged as a part time Sweeper, is in anyway erroneous or that it suffers from any infirmity. Further in view of the respondent’s claim that his services were terminated under the verbal directions of the Branch Manager without any notice or enquiry which position is not being seriously disputed by the petitioner as also the admitted position that the respondent’s services were terminated without following the procedure prescribed in Section 25F of the ID Act, there is no infirmity in the Labour Court’s finding that the respondent was illegally terminated.

11. Now coming to the petitioner’s second contention that the Labour Court was not justified in directing the respondent’s reinstatement with 50% back wages merely because his termination was found to be violative of Section 25F of the ID Act. While the learned counsel for the petitioner has vehemently contended that in a case where the Court is dealing with a daily wager, even if his termination/retrenchment is found to be in violation of Section 25F of the ID Act, an Award of reinstatement ought not be passed, learned counsel for the respondent has contended otherwise. It is the respondent’s submission that, once the termination of a workman is found to be in violation of the provisions of the ID Act, the normal rule is that he should be granted reinstatement with continuity of services and full back wages.

12. In support of their respective stands both sides have sought to rely on various decisions of the Supreme Court and of various High Courts. Having considered these decisions, I find merit in the petitioner’s contention that in the last few years the Supreme Court has been consistently holding that a distinction has to be drawn between a daily wager and a permanent/regular employee. In a case where the Court finds that the services of a regular workman have been illegally terminated by resorting to any unfair labour practice, the direction to reinstate him with back wages would be justified. Even in such situations, full back wages cannot be granted automatically to the workman, the quantum of back wages has to be determined by taking into consideration his length of service as also the financial condition of the employer. On the other hand, where the termination of a daily wager or a casual employee is found to be illegal merely because of a procedural defect like non-compliance of Section 25F of the ID Act, a direction for reinstatement with back wages would not be justified. While holding so the Supreme Court has observed that a daily wager or casual employee, even if reinstated can be terminated, by paying him the retrenchment compensation and notice pay as per Section 25F of the ID Act and, therefore, the grant of the relief of reinstatement to such daily wagers would not be appropriate. Reference may also be made to Assistant Engineer Rajasthan Development Corporation and Anr. Vs. Gitam Singh [(2013) 5 SCC 136] wherein the Supreme Court after considering its earlier decision including the decision in Devinder Singh vs. Municipal Council, Sanaur [(2011) 6 SCC 584] and Harjinder Singh v. Punjab State Warehousing Corpn., [(2010) 3 SCC 192] has observed in paragraph Nos.22, 23 & 25 to 28 as under:-