S.J. Mukhopadhaya, J.
1. The appellant has preferred this appeal against judgment passed by the learned Single Judge dated September 16, 1985 in C.W.J.C No. 422 of 1983.
2. The Respondent No. 4 was a causal employee of the appellants State Bank of India (in short 'Bank'). His services were terminated (retrenched). Such retrenchment was held to be illegal by an award detect July 23, 1983, pronounced published on
August 11, 1983 by the Presiding Officer, Central
Government Industrial Tribunal, Dhanbad. It is
against the said Award dated July 23, 1983, the Bank
moved this Court by filing the aforementioned writ
application, which was confirmed by the learned
single Judge of this Court by impugned judgment
dated September 11, 1985 after some modification
relating to arrears of salary. The Bank has preferred
this appeal against the same.
3. The facts of the case lie in a narrow compass, which are as follows.
4. The Respondent No. 4, Satrughan Mishra was appointed on temporary basis to perform the duties of Class-Ill post. According to the Bank, he was so appointed temporarily from time to time for fixed period.
Details of such appointment of Respondent No. 4, from time to time have been given by the Bank in pages 4-5 of this appeal. It has been shown therein that the Respondent No. 4 performed duties since November, 1962 to September, 1965 on various dates with break in service. Further it has been shown therein that Respondent No. 4 was also paid bonus in certain years.
5. Admittedly, the Respondent No. 4 was thrown out of service on September 7, 1965. He filed several representations before the Management of the Bank against such termination, and ultimately a reference for Industrial Dispute was made by the Central Government on October 29, 1982. It has been stated by the appellant-Bank that earlier the Central Government refused to make a reference under Section 10 of the Industrial Disputes Act, vide their order dated July 21, 1982 on the ground of delay. It was only thereafter on persuasion by the General Secretary of the Staff Association, again the reference has been made by the Central Government on October 29, 1982.
6. The reference was so made with following terms:-
The Schedule : 'whether the action of the management of the State Bank of India in relation to their Deoghar Branch in terminating the services of Shri Satrughan Mishra, Cashier, with effect from September 7, 1965 is justified If not, to what relief is the workman concerned entitled'?
7. The reference was ultimately decided by the presiding officer, Central Government Industrial Tribunal (No. 2) Dhanbad, vide Reference Case No. 131/32. The award was given in favour of the workman (respondent No. 4), holding the action of the Management of the State Bank of India in terminating the services of respondent No. 4 with effect from September 7, 1965 is not justified. It was further ordered that consequent to such declaration the concerned workman Respondent No. 4 should be deemed to be continuing in the Bank with effect from September 7, 1965 with all back wages and other emoluments. Further it has been ordered that the Respondent No. 4 is entitled to all increments, consequential promotions etc. by virtue of his continuity in service. The award was, accordingly, pronounced, published on August 11, 1983.
8. The award dated July 23, 1983 was published on August 11, 1983, The appellant-Bank challenged the same by filling writ petition bearing C.W.J.C. No. 4244 of 1983.
9. The learned Single Judge vide me impugned judgment dated September 16, 1985 did not choose to set aside the whole award, but modified the same to some extent. The order of reinstatement of Respondent No. 4 to his original post as awarded in his favour was not interfered by the learned Single Judge. The only modification of award that was made was with respect to payment of back wages to the Respondent No. 4. On reinstatement of Respondent No. 4, his arrears of salary for the period from September 8, 1965 to October 28, 1982 was disallowed by the learned Single Judge.
10. The appellant-Bank has raised the following points grounds for assailing the award of the Tribunal as well as impugned judgment passed by the learned Single Judge. They are as follows:-
(i) the appointment of Respondent No. 4 was
purely temporary, for fixed term, liable to be
terminated on expiry of tenure, thereby provision of
Industrial Disputes Act, as was existed in the year
1965, was not applicable; ;
(ii) there is a delay of 16 to 17 years in making reference, thereby the reference should have been rejected on the ground of delay, as was earlier rejected by the Central Government by their order dated July 21, 1982.
11. Counsel for the, appellant submitted that in
each and every separate orders of appointment of
Respondent No. 4, it was stipulated that the
appointment will be deemed to have come to an end
at the expiry of the period as mentioned in the
appointment letter. Thereby service of Respondent No. 4 automatically came to an end on completion
of the tenure.
12. According to the appellant, the proviso to Section 25NI(a) of the Industrial Disputes Act as was existing stipulated that the benefit of the said section is not available to persons whose services have been terminated, being fixed term appointment.
13. At this stage when it was brought to the notice of the counsel for the appellant the Section 24N is only applicable with respect to such 'Industrial Establishment' as has been defined under Section 25L; the counsel of the appellant accepted that the State Bank of India does not fall within the meaning of 'Industrial Establishment' as defined in Section 25L of the Industrial Disputes Act.
14. In such circumstances when Section 25N of the Industrial Disputes Act does not apply in the cases of workman employed under the State Bank of India, it is needless to consider whether there is any violation of Section 25N of the Industrial Disputes Act or not.
15. Counsel for the appellant then submitted that even if the old Section 25F is taken into note as was existing in the year 1965 (when the termination order was issued) in terms of the proviso to Section 25F(i)(a), the Respondent No. 4 having been appointed on fixed term basis, such Section 25F is not applicable in the case of Respondent No. 4
16. For proper appreciation of the matter, Section 25F as was existing in the year 1965 is extracted below:-
25-F: Conditions Precedent to retrenchment of workmen.-
(i) No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service:
(b) the workman has been paid, at the time of : retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months, and
(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in official Gazette.
17. Counsel for the appellant submitted that in terms with proviso to Section 25F(1)(a), the said provision of Section 12F of the Industrial. Disputes Act was not applicable, so far as it relates to Respondent No. 4 and thereby the finding given in the Award, as well as, the finding of the Hon'ble Single Judge is erroneous.
18. The other contention that has been raised by the appellant, as mentioned above, is that the reference, in question, was made after delay of about 16 years which is itself was bad and for that the award should not have been allowed in favour of Respondent No. 4. He submitted that the Hon'ble Single Judge should have allowed the writ petition in favour of the appellant setting aside the award on the ground of delay alone. In this connection, he has relied on several decisions of the Supreme Court as well as the High Court, including:
(1) Shalimar Works Ltd. v. Its workmen (1959-II-LLJ-26)(SC).
(2) Bombay Steel Rolling Mills Ltd and Ors. v. Khemchandra Rajkumar Steel Mills and Paharpur Wards Labour Union, Calcutta (1964-II-LLJ-120) (Bom).
(3) Vazir Sultan Tobacco Ltd, Hyderabad v. State of Andhra Pradesh and Ors., (1964-I-LLJ-622) (AP).
(4) G.L.K Shastri v. State of Bihar and Ors.
(1987 BLJR 122).
(5)Abhimanyu Upadhaya v. The Union of India and Anr., 1990 (2) PLJR 44.
(6) P.S. Sadasivaswmy v. State of Tamil Nadu, AIR 1974 (2) SC 2271.
18. Counsel for Respondent No. 4 made his submissions with respect to both aforesaid points. Counsel submitted that the provisions of Section 25F(1)(b) and or 25F(1)(b) are independent to that of Section 25F(1)(a). It is for the said reason, it is contended that even violation of provisions of Section 25F(1)(b) will hit the legality of order. It was stated that prior to issue of order of termination, provision of Section 25F(1)(b) was not followed in the present case.
19. So far as the delay is concerned, counsel for Respondent No. 4 submitted that the same has been taken into note by the Tribunal while giving award and further the Hon'ble Single judge of this Court has also taken the same into consideration. Therein, both of them discussed the matter relating to delay and on the basis of different evidences gave concurrent finding that the matter was still under consideration of the Management of the Bank and thereby it has been rightly held that there was no delay in making reference with respect to the case of Respondent No. 4.
20. It will be evident from the provisions of Section 25F(1), the Sub-section (a) therein is completely independent to that of Sub-section (b) and (c). It has been categorically held by different decisions of this Court as well as the Supreme Court that even violation of one of the sub-sections of the provisions of Section 25F will render an order of termination as illegal. Admittedly, in the case of Respondent No. 4 none of the provisions of Section 25(1) have been followed i.e. Sub-section (a) and or (b). Even if it is accepted that the provisions of Section 25F(1)(b) of the Act will apply in this case, the provision of Section 25F(1) (b) and (c) being independent to provision of Section' 25F(1)(a), it is not in dispute that Respondent No. 4 has worked for much more than 240 days in each and every calendar years in between the years 1962 and 1965. Thereby the order of termination with respect to Respondent No. 4 having been passed in complete violation of Section 25P(1)(b) of the Act. The said termination order cannot be; held to be legal and thereby the award, in question and the decision of the Hon'ble Single Judge cannot be held to be, illegal.
21. So far as the other point relating to delay is concerned, the Presiding officer of the Tribunal has discussed the matter in detail and has come to the conclusion that there is no delay, on the part of Respondent No, 4. The Hon'ble Single Judge has also discussed the same in detail and has also come to the similar conclusion. This will be evident from Paragraphs 2, 3 and 4 of the impugned judgment of the Hon'ble Single Judge.
22. At this stage, it is to be taken into note that on representation of Respondent No. 4 for his reinstatement, the appellant-Bank itself reopened the matter vide their letter dated July 17, 1980 which is Anexure-D to the Counter affidavit filed by the Appellant in Court. The said letter dated July 17, 1980 reads, as follows;
ABSORPTION OF TEMPORARY EMPLOYEES;
With reference to your representation dated November 28, 1978 please furnish the following particular at an early date for our doing the needful:--
(a) what was your academic qualification at the time of initial temporary appointment as cashier at Deoghar Branch.
(b) what was your age at the time of your initial appointment as temporary cashier at Deoghar Branch.
(c) whether you are persuading your case for reinstatement since termination from Bank's service. If so, please submit necessary evidence for doing so.
(d) whether you are still unemployed and have not got any employment since the date of termination from Bank's service.
2. Further please submit a fresh representation incorporating therein that your request for reinstatement in the Bank's service is not merely to take advantage of the judgment of the Supreme Court in Sundar Money case and duly supported by the Certificate from two persons known to the Bank certifying that you were not employed any where since the date of termination from Bank service. If me position is otherwise please furnish full details of salary and allowances drawn by you during the period of termination.
Yours faithfully. Sd/- Illegible
Branch Manager.'
23. The aforesaid facts go to show that the matter relating to termination of service of Respondent No. 4 and representation against the same was still under consideration of the Management and it is the appellant-Bank, who had not closed the chapter. Thereby, it was rightly held by the Tribunal as well as the Hon'ble Single Judge that there is no delay in the matter of making reference. It is the appellant-
Bank who was going ahead with the negotiation with
ttie Respondent No. 4 with respect to his termination/
reinstatement and thereby the conciliation proceeding
was going on.
24. It is true that this Court as well as the Supreme Court generally do not interfere in a matter after a great delay. That is not a rule rather a general procedure followed by Courts of law. Refusal of relief on the ground of delay depends on facts of each and every case.
The Apex court in the case of R.S. Deodhar v. State of Maharashtra AIR 1974 SC 259, has held as follows:-
'We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilokchand Motichand v. H.B. Munshi AIR 1970 SC 898.
'is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit..........It will all be and on what the breach of the Fundamental Right and remedy claimed are and how the delay arose.'
Moreover, it may be noticed the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and the Court which has been assigned the role of mentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the genuine ground of laches, delay or the like.'
25. Therefore, the argument of the appellant Bank that on account of such delay, reference should not have been made, cannot be accepted. In this case, it is to be taken into that by virtue of the reinstatement of Respondent No. 4, the right of no third party is going to be affected. No such pleading has been made by the appellant in this aspect. Further the Hon'ble Single Judge has taken into note that because of delay in making reference, the appellant-Bank should not suffer and it is for the same reason, the Hon'ble Single Judge has modified the award itself by holding that the Respondent No. 4 will not be eligible for arrears of salary for the intervening period i.e. between the date of retrenchment and date of reference (1965 to 1982). So, I find no illegality in the order and judgment of the Hon'ble Single Judge.
26. The letters patent appeal is, accordingly, dismissed with cost of Rs. 1000/ (Rupees one Thousand).
K. Venkataswami, C.J.
27. I agree.