Anz Grindlays Bank Vs. General Secretary, Grindlays Bank Employees Union and ors. - Court Judgment

Excerpt:
labour and industrial - retrenchment - section 25-f and rule 81 of industrial disputes act, 1947 and article 226 of constitution of india - petitioners aggrieved by order of tribunal directing reinstatement of retrenched employee - workman being in category of sub-staff or peon continued in employment without any break under an impression that he was in regular employment - petitioner-bank failed to prove how and under what circumstances initially additional hand was necessary and how requirement had ceased - bank complied with provision of section 25-f by offering retrenchment compensation although term 'retrenchment' was avoided to be used tactfully - omission to use such term was made willfully so as to avoid from provisions of section 25-f and rule 81 of rules - award of tribunal based on facts with no miscarriage of justice to warrant interference under article 226. - practice & procedure --review; [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] power of review held, power of review is not inherent in the court and such power has to be vested in the court or quasi judicial authority by express provision or by necessary implication. - the union must represent a case of workmen or employees like a representative union under the bombay industrial relations act, 1946, whether they are members or not. the workman being in the category of the sub staff or a peon continued in employment without any break under an impression that he was in regular employment and felt safe. a period of more than four years is enough to make a workman to think that he would be safe in employment and that he was not a temporary workman in the sense that he understood the term temporary i.orderr.j. kochar, j.1. the petitioners are aggrieved by the impugned award and order dated september 15, 1999 in reference no. cgit-2/135 of 1998 in industrial dispute referred by the government of india for adjudication of legality and justifiability of the order of termination of one shri deepak mungekar, a peon, from their employment.2. the facts are very simple. the petitioners, a giant multinational, had appointed on march 19, 1990 a workman in the sub-staff (peon) category. he continued till july 30, 1994 continuously without any break. by an order dated july 30, 1994 his employment was discontinued on the ground that he was no longer required as additional workman. alongwith the said order of termination he was given a pay order for a sum of rs. 92,966.20 which included rs. 75,049.67, difference in wages payable to him and rs. 21,722.99 as bonus. the amount of rs. 10,725.54 was the amount of compensation payable under section 25-f of the industrial disputes act. the concerned workman appears to have approached the respondent union and the respondent union questioned the legality and propriety of the termination order and espoused his cause and raised an industrial dispute to get him reinstated in service with full back wages and continuity of service. both the parties filed their pleadings and adduced oral and documentary evidence. the learned member of the industrial tribunal by his award dated september 15, 1999 held that the action of the petitioners management in terminating the service of shri mungekar was not legal and not justified. the tribunal directed the petitioners to reinstate him with continuity of service and full back wages.3. ms. mhatre, the learned counsel for the petitioners' bank, has submitted that the workman was appointed wholly as a temporary sub-staff to brief the requirement of increase in work at that time and he was continued till july 30, 1994 when his services were terminated as the additional work was not available.according to the learned counsel, though the order of termination mentions section 25-f of the industrial disputes act it was not the case of retrenchment. according to her, by way of abundant precaution the workman was offered retrenchment compensation along with his other legal dues which he had accepted. ms. mhatre contended that it was a simple case of employment of a sub-staff to meet the exigency of increasing work and his termination from employment after such exigency was over. she has further contended that as it was not a case of retrenchment there was no question of following section 25-g read with rule 81 of the industrial disputes act and rules. it was a simple case of 'work not available'. she further contended that though the workman was not a member of the respondent union and though the industrial dispute was referred under section 2-a of the industrial disputes act, 1947 as 'an individual dispute' the respondent union had filed the statement of claim and its secretary had signed the same. according to her, the respondent union could not file the statement of claim as it was a reference under section 2-a as an individual dispute. she further pointed out that the concerned workman was not a member of the union and therefore the union could not have espoused his cause and could not have filed the statement of claim on behalf of the concerned workman. i have recorded this submission of the learned counsel only to be rejected instantaneously being totally opposed to the letters of the act and the spirit of the industrial jurisprudence. the union is a complete shelter and home for retreat for every workman as and when he finds himself in difficulty. very often the employees or workmen do not become members of any union for their own reasons selfish or otherwise. it is possible that the present workman being only a temporary workman preferred to remain away from the union but when he found himself in difficulty he knocked the doors of the union which rightly gave shelter to him and responded to his call for help. the union did not, rightly, adopt a narrow and sectarian attitude of not helping him on the ground that he was not the union member, the union has rightly extended its help and has espoused his cause for justice. there is no bar or prohibition, for the respondent union functioning in the petitioners company, or for that matter for any union functioning in any undertaking to espouse cause of any workman who might not have been enrolled as member in the past. the membership of a union is not a condition precedent to espouse an industrial dispute of a workman. the union can espouse cause of even a non member, who approaches them for help. the union must represent a case of workmen or employees like a representative union under the bombay industrial relations act, 1946, whether they are members or not. it is always in the interest of industrial relations that even an individual workman or an employee is represented by a union and that the cause is espoused by the union and if the union acts in the interest of the workmen. section 2-a was introduced by the legislature when it was found that some of the unions did not espouse the cause of individuals and therefore such individuals were left in lurch as their cause was not espoused by the union, and therefore grave prejudice and injustice was done to individual workman. this amendment became necessary to meet the tyranny of some trade unions, which discarded the individual workman. in such circumstances a case of an individual workman was treated as an industrial dispute by section 2-a. it therefore does not mean that it was not capable of being espoused by the respondent union and that the respondent union could not espouse an industrial dispute being an individual dispute under section 2-a of the act. there was nothing wrong if the respondent union had espoused the industrial dispute under section 2-a of the act and that the secretary of the union had filed a statement of claim on behalf of such individual workman. ms. mhatre could not point out any decision or authority to show that a union cannot espouse or appear in a cause of individual workman, whose dispute has been referred under section 2-a of the act as an individual dispute which is deemed to be an industrial dispute and that the union can espouse the cause of its members only and that it cannot espouse the cause of a non-member.4. according to the learned counsel, since it was not the case of retrenchment, there was no obligation on the part of the petitioners bank to comply with section 25-g of the act and rule 81. i am not able to agree with the said contention of the learned counsel. even though the petitioners' bank has omitted to use the term retrenchment, it is clear from the termination order that it was a case of retrenchment as the concerned workman-peon was found surplus as there was no work for him. the definition of retrenchment is very wide to include the present specie of termination. by omitting to use the term retrenchment the petitioners' bank cannot run away from the provision relating to retrenchment and its very wide definition. even though the bank has felt shy of using the term retrenchment it has in effect tried to comply with section 25-f of the act by offering retrenchment compensation. the bank has tried to play hide and seek by omitting to use the term retrenchment at the same time by treating the termination of the workman as retrenchment while complying with section 25-f of the act to be able to say that it has not committed breach of the mandatory provision of section 25-f of the act. it appears that the omission to use the term retrenchment is to be able to escape from section 25-f of the act and rule 81 of the rules to be able to employ anyone and to avoid the question of the rule of seniority i.e. last come first go. this rule is made obligatory and in the interest of justice that in case of fresh appointments the workmen who were already in employment but were retrenched should be given an opportunity of employment under the same employer. in order to avoid all these obligations the bank has cleverly omitted to use the term retrenchment. unfortunately, there is neither any emergency exit or any back door in chapter v of the act.5. shri c.u. singh, for the union, has rightly pointed out that there was absolutely no evidence adduced before the tribunal to show that there was temporary increase in the work and work was not available and therefore the concerned peon was terminated from employment. he was in continuous employment for more than four years and it was therefore obligatory for the bank to have adduced some evidence to the effect how and under what circumstances initially the additional hand was necessary and how the requirement had ceased. there should be some material to meet the requirement of law. in the present case there was absolutely no material before the tribunal. the workman being in the category of the sub staff or a peon continued in employment without any break under an impression that he was in regular employment and felt safe. a period of more than four years is enough to make a workman to think that he would be safe in employment and that he was not a temporary workman in the sense that he understood the term temporary i.e. for a few days. shri singh has further rightly pointed out that the petitioner bank had employed a fresh hand in the category of sweeper-cum-peon after the concerned workman was terminated from the employment. ms. mhatre however, has pointed out that he was called for interview and was offered the work of sweeper-cum-peon but he refused to accept the same. the witness shri shetty had admitted that he was not in the interview committee and that he could not produce any material or noting of the interview committee to prove that the concerned workman had refused the offer of employment in the post of sweeper-cum-peon. the witness also expressed his inability to produce the report of the evaluation committee. in fact this witness has expressed his utter disability to produce any material as he expected that his statement should be accepted as truth without any basis. it would have been enough if the witness had produced some material to show that the workman had refused to accept the offer of the post of sweeper-cum-peon. even a member of the interview committee could have been examined to say so. according to me, such statement would perhaps have been enough material. shri singh has pointed out that the marketing department was started in the year 1989 and the workman was employed soon thereafter on march 19, 1990. he has also pointed out that the business and profits of the bank have steeply increased in multiples it therefore cannot be said that there was no necessity or requirement of a peon in its organisation. secondly shri singh has pointed out and according to me rightly that the bank had appointed a new person as sub-staff or in the post of sweeper-cum-peon in violation of section 25-h of the act.6. ms. mhatre for the bank has also submitted that section 25-f(1)(c) is not a mandatory condition though the other two clauses (a) (b) are. according to me, the entire section 25-f is a mandatory section, which must be complied with. it is only that section 25-f(a) is a condition precedent while (c) is not. sub-section 25-f(1)(c) has also to be complied with but not as a condition precedent.7. in the aforesaid circumstances in my opinion the award of the tribunal is based on facts and there is no miscarriage of justice to warrant interference under the extraordinary jurisdiction of article 226 of the constitution of india. the industrial tribunal has rightly considered and decided the dispute and there is no error of law or any error of fact requiring interference by this court. i cannot lose sight of the fact that a small sub-staff peon is pitted against the mighty and giant multinational and the tribunal has done justice to him in accordance with law.8. there is no merit in the petition and the same therefore deserves to be dismissed and the same is dismissed. rule is discharged. no order as to costs.

Judgment:
ORDER

R.J. Kochar, J.

1. The Petitioners are aggrieved by the impugned Award and Order dated September 15, 1999 in Reference No. CGIT-2/135 of 1998 in Industrial Dispute referred by the Government of India for adjudication of legality and justifiability of the Order of termination of one Shri Deepak Mungekar, a Peon, from their employment.

2. The facts are very simple. The Petitioners, a giant multinational, had appointed on March 19, 1990 a workman in the sub-staff (Peon) category. He continued till July 30, 1994 continuously without any break. By an order dated July 30, 1994 his employment was discontinued on the ground that he was no longer required as additional workman. Alongwith the said order of termination he was given a Pay order for a sum of Rs. 92,966.20 which included Rs. 75,049.67, difference in wages payable to him and Rs. 21,722.99 as Bonus. The amount of Rs. 10,725.54 was the amount of compensation payable under Section 25-F of the Industrial Disputes Act. The concerned workman appears to have approached the Respondent union and the Respondent union questioned the legality and propriety of the termination order and espoused his cause and raised an industrial dispute to get him reinstated in service with full back wages and continuity of service. Both the parties filed their pleadings and adduced oral and documentary evidence. The learned Member of the Industrial Tribunal by his Award dated September 15, 1999 held that the action of the Petitioners management in terminating the service of Shri Mungekar was not legal and not justified. The Tribunal directed the Petitioners to reinstate him with continuity of service and full back wages.

3. Ms. Mhatre, the learned counsel for the Petitioners' bank, has submitted that the workman was appointed wholly as a temporary sub-staff to brief the requirement of increase in work at that time and he was continued till July 30, 1994 when his services were terminated as the additional work was not available.

According to the learned counsel, though the order of termination mentions Section 25-F of the Industrial Disputes Act it was not the case of retrenchment. According to her, by way of abundant precaution the workman was offered retrenchment compensation along with his other legal dues which he had accepted. Ms. Mhatre contended that it was a simple case of employment of a sub-staff to meet the exigency of increasing work and his termination from employment after such exigency was over. She has further contended that as it was not a case of retrenchment there was no question of following Section 25-G read with Rule 81 of the Industrial Disputes Act and Rules. It was a simple case of 'work not available'. She further contended that though the workman was not a member of the Respondent union and though the industrial dispute was referred under Section 2-A of the Industrial Disputes Act, 1947 as 'an individual dispute' the Respondent union had filed the statement of claim and its Secretary had signed the same. According to her, the Respondent union could not file the statement of claim as it was a reference under Section 2-A as an individual dispute. She further pointed out that the concerned workman was not a member of the Union and therefore the Union could not have espoused his cause and could not have filed the statement of claim on behalf of the concerned workman. I have recorded this submission of the learned counsel only to be rejected instantaneously being totally opposed to the letters of the Act and the spirit of the industrial jurisprudence. The Union is a complete shelter and home for retreat for every workman as and when he finds himself in difficulty. Very often the employees or workmen do not become members of any union for their own reasons selfish or otherwise. It is possible that the present workman being only a temporary workman preferred to remain away from the Union but when he found himself in difficulty he knocked the doors of the Union which rightly gave shelter to him and responded to his call for help. The Union did not, rightly, adopt a narrow and sectarian attitude of not helping him on the ground that he was not the Union member, The union has rightly extended its help and has espoused his cause for justice. There is no bar or prohibition, for the Respondent union functioning in the Petitioners company, or for that matter for any union functioning in any undertaking to espouse cause of any workman who might not have been enrolled as member in the past. The Membership of a union is not a condition precedent to espouse an industrial dispute of a workman. The union can espouse cause of even a non member, who approaches them for help. The union must represent a case of workmen or employees like a representative union under the Bombay Industrial Relations Act, 1946, whether they are members or not. It is always in the interest of industrial relations that even an individual workman or an employee is represented by a union and that the cause is espoused by the Union and if the Union acts in the interest of the workmen. Section 2-A was introduced by the Legislature when it was found that some of the Unions did not espouse the cause of individuals and therefore such individuals were left in lurch as their cause was not espoused by the Union, and therefore grave prejudice and injustice was done to individual workman. This amendment became necessary to meet the tyranny of some Trade Unions, which discarded the individual workman. In such circumstances a case of an individual workman was treated as an industrial dispute by Section 2-A. It therefore does not mean that it was not capable of being espoused by the Respondent Union and that the Respondent union could not espouse an industrial dispute being an individual dispute under Section 2-A of the Act. There was nothing wrong if the Respondent Union had espoused the industrial dispute under Section 2-A of the Act and that the Secretary of the Union had filed a statement of claim on behalf of such individual workman. Ms. Mhatre could not point out any decision or authority to show that a union cannot espouse or appear in a cause of individual workman, whose dispute has been referred under Section 2-A of the Act as an individual dispute which is deemed to be an industrial dispute and that the union can espouse the cause of its members only and that it cannot espouse the cause of a non-member.

4. According to the learned counsel, since it was not the case of retrenchment, there was no obligation on the part of the Petitioners Bank to comply with Section 25-G of the Act and Rule 81. I am not able to agree with the said contention of the learned counsel. Even though the Petitioners' Bank has omitted to use the term retrenchment, it is clear from the termination order that it was a case of retrenchment as the concerned workman-Peon was found surplus as there was no work for him. The definition of retrenchment is very wide to include the present specie of termination. By omitting to use the term retrenchment the petitioners' Bank cannot run away from the provision relating to retrenchment and its very wide definition. Even though the Bank has felt shy of using the term retrenchment it has in effect tried to comply with Section 25-F of the Act by offering retrenchment compensation. The Bank has tried to play hide and seek by omitting to use the term retrenchment at the same time by treating the termination of the workman as retrenchment while complying with Section 25-F of the Act to be able to say that it has not committed breach of the mandatory provision of Section 25-F of the Act. It appears that the omission to use the term retrenchment is to be able to escape from Section 25-F of the Act and Rule 81 of the Rules to be able to employ anyone and to avoid the question of the rule of seniority i.e. last come first go. This rule is made obligatory and in the interest of justice that in case of fresh appointments the workmen who were already in employment but were retrenched should be given an opportunity of employment under the same employer. In order to avoid all these obligations the Bank has cleverly omitted to use the term retrenchment. Unfortunately, there is neither any emergency exit or any back door in Chapter V of the Act.

5. Shri C.U. Singh, for the Union, has rightly pointed out that there was absolutely no evidence adduced before the Tribunal to show that there was temporary increase in the work and work was not available and therefore the concerned Peon was terminated from employment. He was in continuous employment for more than four years and it was therefore obligatory for the Bank to have adduced some evidence to the effect how and under what circumstances initially the additional hand was necessary and how the requirement had ceased. There should be some material to meet the requirement of law. In the present case there was absolutely no material before the Tribunal. The workman being in the category of the sub staff or a Peon continued in employment without any break under an impression that he was in regular employment and felt safe. A period of more than four years is enough to make a workman to think that he would be safe in employment and that he was not a temporary workman in the sense that he understood the term temporary i.e. for a few days. Shri Singh has further rightly pointed out that the Petitioner Bank had employed a fresh hand in the category of Sweeper-cum-Peon after the concerned workman was terminated from the employment. Ms. Mhatre however, has pointed out that he was called for interview and was offered the work of Sweeper-cum-peon but he refused to accept the same. The witness Shri Shetty had admitted that he was not in the Interview Committee and that he could not produce any material or noting of the interview committee to prove that the concerned workman had refused the offer of employment in the post of sweeper-cum-peon. The witness also expressed his inability to produce the report of the evaluation committee. In fact this witness has expressed his utter disability to produce any material as he expected that his statement should be accepted as truth without any basis. It would have been enough if the witness had produced some material to show that the workman had refused to accept the offer of the post of Sweeper-cum-Peon. Even a member of the Interview Committee could have been examined to say so. According to me, such statement would perhaps have been enough material. Shri Singh has pointed out that the Marketing Department was started in the year 1989 and the workman was employed soon thereafter on March 19, 1990. He has also pointed out that the business and profits of the bank have steeply increased in multiples it therefore cannot be said that there was no necessity or requirement of a Peon in its organisation. Secondly Shri Singh has pointed out and according to me rightly that the Bank had appointed a new person as sub-staff or in the post of Sweeper-cum-Peon in violation of Section 25-H of the Act.

6. Ms. Mhatre for the Bank has also submitted that Section 25-F(1)(c) is not a mandatory condition though the other two Clauses (a) (b) are. According to me, the entire Section 25-F is a mandatory Section, which must be complied with. It is only that Section 25-F(a) is a condition precedent while (c) is not. Sub-section 25-F(1)(c) has also to be complied with but not as a condition precedent.

7. In the aforesaid circumstances in my opinion the Award of the Tribunal is based on facts and there is no miscarriage of justice to warrant interference under the extraordinary jurisdiction of Article 226 of the Constitution of India. The Industrial Tribunal has rightly considered and decided the dispute and there is no error of law or any error of fact requiring interference by this Court. I cannot lose sight of the fact that a small sub-staff peon is pitted against the mighty and giant multinational and the Tribunal has done justice to him in accordance with law.

8. There is no merit in the Petition and the same therefore deserves to be dismissed and the same is dismissed. Rule is discharged. No order as to costs.