Judgment:
V.C. Misra, J.
1. Ms. Rohma Hammed, Advocate, holding brief of Sri Yashwant Verma, learned Counsel for the petitioner and Sri Ashwani Misra, learned Counsel for the respondents are present.
2. This writ petition has been filed challenging the impugned award dated 11.8.1986, made in favour of respondent No. 1 (Annexure 5 to the writ petition) passed by respondent No. 2-the Presiding Officer of Central Government Industrial Tribunal-cum-Labour Court, Kanpur (hereinafter referred to as the Tribunal) by which the termination of service of the workman-respondent No. 1 dated 13.11.1978 was declared as an illegal and not justified, reinstating the workman with full back wages.
3. The undisputed facts of the case in brief are that the petitioner-bank at its Chata Branch, Agra has engaged respondent No. 1-Madan Singh from time to time as a Badli Guard w.e.f. 1968, and he had worked continuously till 1978, for the specific total 886 days in 10 years, as mentioned in paragraph 3 of the writ petition (Annexure 3 to the writ petition). The services of respondent No. 1 were dispensed with w.e.f. 18.12.1978. He was not engaged any further, since his services were not required anymore, because instead of the private guards the police guards were being posted in the Bank Branch. Respondent No. 1 was appointed in the year 1986 along with one Gulab Singh after one Karan Singh, who had retired in the year, 1986. On 13.11.1978, the services of Gulab Singh were permanently absorbed in the bank. Being aggrieved, respondent No. 1 raised an Industrial dispute, which was referred to respondent No. 2.
4. Respondent No. 2 after hearing the learned Counsel for the parties to the dispute, found that since the management had failed to show by any document that the workman was engaged in leave vacancy and under any eventuality having worked for such a long time and specially during the last 3 years' service worked for more than total 100 days or so, the workman had acquired the status of a temporary employee and his services could not be terminated. The workman had acquired a temporary status and he had been working as a messenger, if the work of guard had been taken over by the police guard, against one permanent vacancy of Karan Singh, Gulab Singh, had been absorbed temporarily w.e.f. 13.11.1978. In absence of any seniority list of temporary employees, the employer-bank had committed violation of Rule 77 and Section 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and, therefore, on this count, the termination of the workman would be illegal. It also found that the termination letter of 14 days' notice in compliance of the provisions of paragraph 522 (4) and (5) of the Shastry Award had not been made, and the termination order of the workman passed was illegally. It has further held that the practice of engaging the temporary employee by rotation to fill up the unfair labour practice was allowed to continue to work for number of years and, therefore, it could not be said that the workman was only a casual employee or as a Badli guard, and did not acquire the status of a temporary workman. Respondent No. 2 on the basis of the said findings, held the termination of the services of respondent No. 1 w.e.f. 13.11.1978 to be illegal and unjustified and directed his reinstatement with full back wages.
5. Learned Counsel for the petitioner has relied upon the decision in the case of Firestone Tyre Rubber Co. of India Pvt. Ltd. v. Workman, 1981 (II) LLJ 218 (SC) in the case of Management of State Bank of India, Agra v. Presiding Officer Central Government Industrial Tribunal, Kanpur and Ors., 1999 (4) AWC 3160, in the case of Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya, (2002) 6 SCC 41; in the case of Management of State Bank of Bikaner and Jaipur v. Santosh Kumar Mishra and Ors., 2003 (96) FLR 885; in the case of M.P. State Electricity Board v. Smt. Jarina Bee, J.T 2003 (5) SC 542; in the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar, JT 2003 (2) SC 295, and in the case of Etawah Kshetriya Gramin Bank v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Kanpur and Anr., 2004 (1) Bank CLR 282 (All).
6. Learned Counsel for the respondents has relied the decisions in the case of Anoop Jaiswal v. Government of India and Anr., (1984) 2 SCC 369; in the case of Sooters India Ltd., Lucknow v. Labour Court, Lucknow and Ors.. 1989 SCC (L & S) 180; in the case of Ram Bilas v. State of U.P. and Ors., 1990 (60) FLR 567 (All) and in the case of Chief Conservator of Forests v. Jagannath M. Kondhare, 1996 Lab IC 967.
7. I have looked into the record and heard learned Counsel for the parties at length and find that respondent No. 2 has wrongly arrived at a conclusion that respondent No. 1 should be treated as a temporary employee of the Allahabad Bank, merely on the basis that he had been engaged for few days in each month as a Badli guard. No other valid and cogent reasons, whatsoever, have been assigned, as to how and why respondent No. 1 is being treated as a temporary employee inspite of fact that the appointment of a temporary employee in the State Bank of India is to be made as per State Bank of India Staff Matters Volume II Award Staff and in terms of Shastri Award. The services of subordinate staff of the bank including the post of guard/messengers are governed in terms of the Shastri award which is being inforced and is in operation, except to the extent it was modified by the Desai award. The Shastri award in its paragraph 505 has specified the category of the employee and is not applicable to the class of casual worker/Badli guard, which is conspicuous by Its non-inclusion. The prescribed procedure and method of appointment and termination of paragraph 495 of the Shastri award, clearly speaks that the appointment of an employee is to be made only through an appointment letter, issued in writing specifying the kind of appointment and the pay and allowances to which he would be entitled. It is an admitted case that no appointment letter had ever been issued to respondent No. 1 nor the appointment had been made for any fixed or a specified period, but he was engaged on day to day basis. The finding of temporary appointment of the workman by the Tribunal is based on surmises and conjectures.
8. The Tribunal did not apply its mind while deciding the question of back wages. I also find that the reference made to respondent No. 2 was only to the extent that whether respondent No. 2 had acted in excess of scope of reference made to it, which was in respect with the termination of the service of respondent No. 1 w.e.f. 13.11.1978. It was in excess of the scope of reference, by holding that the petitioner-bank had failed to comply with the provision of Section 25H of the Act, as held by Hon'ble Supreme Court in the case of Firestone Tyre and Rubbers Co. of India Pvt. Ltd. (supra). Respondent No. 2 erred in applying provisions of Section 25-FtoH of the Act, and Rules 77 to 78 of the Rules framed under the Act, which applied only on the condition of termination of surplus staff in the permanent role of an establishment and not to a casual workman, moreso, when no specific names had been disclosed regarding fresh hands to be taken in, on the same post or category, and that one temporary employee had been relieved by another. It was not justified in making the same, as basis of the award, as there was no question of respondent No. 1 being absorbed or retained in the employment of bank against the Rules. In the case of Himansu Kumar Viddhyarthi v. State of Bihar, 1997 FLR 2045, the Hon'ble Supreme Court has held that the daily wage employee, engaged for the post of common work his termination of services cannot be construed as retrenchment under the provisions of Section 25F. Respondent No. 1 was only engaged as a Badli guard/daily worker in the exigency of work by the bank and he was not working, having been appointed on any post. The tribunal-respondent No. 2 has committed an error of law in awarding the reinstatement with full back wages instead of compensation and such finding of respondent No. 2 being perverse it cannot be sustained. It is a settled law that reinstatement with full back wages, is not the natural consequence in setting aside the dismissal order by the Labour Court and no straight-Jacket formula could be evolved. In the present case, respondent No. 1 could not have been awarded full back wages merely on the basis of setting aside of the discharge of respondent No. 1 and a direction of his reinstatement had been held by the Apex Court in the case of M.P. Electricity Board and in the case of Hindustan Motors Ltd. (supra). The impugned award dated 11.8.1986 (Annexure 5 to the writ petition) is liable to be quashed. However, in view of the long drawn litigation and the delay it would serve the ends of justice, if the amount which has already been paid as wages to respondent No. 1 and wages paid till date after filing of the writ petition and the amount so deposited by the petitioner in terms of the interim stay order darted 23.2.1987 by the petitioner to be paid to respondent No. 1 shall not be recovered or withdrawn by the bank.
With these observations, the impugned award dated 11.8.1986 (Annexure 5 to the writ petition) is hereby quashed. The writ petition is allowed. No order as to costs.