Punjab National Bank and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/474329
SubjectLabour and Industrial
CourtAllahabad High Court
Decided OnJul-15-2009
JudgeTarun Agarwala, J.
Reported in2009(4)AWC3574; (2010)ILLJ345All
AppellantPunjab National Bank and anr.
RespondentUnion of India (Uoi) and ors.
Cases ReferredNagar Mahapalika v. State of U.P. and Ors.
Excerpt:
- - the petitioners have challenged the validity and legality of the award, passed by the industrial tribunal, holding that the retrenchment of the workman from service was bad in law and that the petitioner was liable to reinstate the workman in service and pay the back wages at the rate at which the workman was lastly paid. the best evidence was retained by the petitioners and the tribunal was justified in drawing an adverse inference against the petitioners and was justified in holding that the workman had worked for more than 240 days in a calendar year.tarun agarwala, j.1. heard shri k.l. grover, the learned senior counsel, assisted by shri ramesh singh, the learned counsel for the petitioner and shri pradeep verma, the learned counsel for the respondent workman. the petitioners have challenged the validity and legality of the award, passed by the industrial tribunal, holding that the retrenchment of the workman from service was bad in law and that the petitioner was liable to reinstate the workman in service and pay the back wages at the rate at which the workman was lastly paid.2. the facts leading to filing of the present writ petition is, that the workman contended that he was appointed as a peon-cum-waterman which was of a permanent nature and that he had worked for a period of 308 days upto 31st may, 1985, and that, the management retrenched the workman without complying with the provisions of section 25-f of the industrial disputes act. the workman further contended that since the retrenchment compensation was not paid, the cessation of the services of the workman was ex facie illegal and, consequently, he was liable to be reinstated with continuity of service and with full back wages.3. on the other hand, the bank came up with the stand that the workman was engaged as a casual labour by the erstwhile bank known as hindustan commercial bank limited, and that he had worked intermittently. a specific plea was raised that the workman had worked only for 22 days initially and 13 days subsequently, and that, he had never worked for more than 240 days in a calendar year, and therefore, the question of compliance of the provision of section 25-f of the industrial disputes act did not arise.4. the tribunal, after considering the material evidence on record, came to the conclusion that the workman was engaged to do a permanent nature of work and that he had completed 240 days in a calendar year. the tribunal further found that the retrenchment compensation had not been paid to the workman at the time when his services was dispensed with and that the provision of section 25-f of the industrial disputes act was not complied with by the management. the tribunal, accordingly, directed reinstatement of the workman and further directed that the back wages would be paid at the rate which the workman concerned was lastly paid. the petitioner, being aggrieved by the said award, has filed the present writ petition.5. it is relevant to state here that the workman was an employee of the erstwhile bank, namely, hindustan commercial bank limited and that the said bank was amalgamated with the petitioner after the alleged termination of the workman and before the dispute was referred for adjudication.6. the finding of the tribunal that the workman was engaged to do a permanent nature of work was based on the strength that the name of the workman concerned was picked from a panel prepared by the bank, and that, the candidates from such panel were given employment in order to acquaint them of the regular course of the business of the bank. the tribunal further found that no witness of the management came forward to deny the factum that the workman was not engaged to do a permanent nature of work. consequently, the tribunal belied the stand of the management that the workman was engaged only to do casual work on account of exigencies of work.7. on the question of 240 days, the tribunal has relied upon a joint inspection note which indicated that the workman had worked for 92 days during 11th may, 1984 to 31st may, 1985 and that the vouchers for the remaining period was not produced by the management during the course of the joint inspection, and consequently, the tribunal drew an adverse inference holding that the workman had worked continuously for more than 240 days in a year, and since no retrenchment compensation or pay in lieu of notice was given to the concerned workman, his retrenchment was found to be illegal on account of non-compliance of the provisions of 25-f of the industrial disputes act. the tribunal, consequently, directed reinstatement and for payment of the back wages.8. having heard the learned counsel for the petitioners and the learned counsel for the workman, the court finds that a specific plea has been raised by the petitioners in the writ petition that the joint inspection was made only for the period up to 31.05.1985 and that the inspection for the remaining period could not be made on account of paucity of time, and that, the authorised representative of the workman did not appear thereafter before the bank for inspection of the remaining documents. in this regard, the petitioner has further contended that an application was moved by the bank before the tribunal praying that the authorised representative of the workman may be directed to file the joint inspection report, and further submitted that the vouchers for the remaining period were available for inspection. it was also alleged in the writ petition that no order was passed by the tribunal on the application filed by the petitioner.9. no counter affidavit has been filed by the workman to deny these allegations. consequently, the court finds that the averments made in the writ petition remains unrebutted. however, these averments will not make much of difference inasmuch as the court finds on a reading of the award that the tribunal had based its finding on the basis of a joint inspection report. the petitioner has nowhere alleged in the writ petition that the joint inspection report was not filed before the tribunal nor has alleged that the tribunal's finding on the joint inspection report is perverse and that it was not based on any material evidence on record.10. this court finds that a joint inspection report was filed and the tribunal has relied upon the said inspection report and has given a categorical finding that the petitioners did not allow the inspection of the vouchers for the remaining period. the best evidence was retained by the petitioners and the tribunal was justified in drawing an adverse inference against the petitioners and was justified in holding that the workman had worked for more than 240 days in a calendar year.11. in the light of the aforesaid, this court is of the opinion that the findings given by the tribunal does not suffer from any manifest error of law. the workman was employed on a permanent nature of work. the alleged dispensation of the service was in the year 1985. there is no evidence or averment made in the petition which indicates that the liabilities of the erstwhile bank was not taken over by the present management.12. in the light of the aforesaid, this court is of the opinion that the present management cannot escape the liability arising out of the award. however, the direction of reinstatement on account of a technical breach or non-compliance of the provision of retrenchment compensation, as contemplated under section 25-f of the industrial disputes act appears to be harsh. the rule of reinstatement should not be followed as a matter of course. something more was required to be held before granting reinstatement. the tribunal was required to give a finding as to whether there was a requirement of work or not. the tribunal has not given any finding as to whether the post was existing or not, nor any effort was made to find out as to whether the engagement was made in accordance with the rules or regulations of the bank.13. consequently, on the mere ground that there has been a violation of the provisions of section 25-f, this court is of the opinion that the reinstatement of the services of the workman could not have been ordered. recently, the supreme court in nagar mahapalika v. state of u.p. and ors. : 2006 (5) scc 127 has held that reinstatement should not be granted as a matter of course and that where the termination was found to be illegal on account of non-compliance of the provisions of section 25-f of the industrial disputes act, compensation could have been ordered. the said judgment is squarely applicable with the facts and circumstances of the case.14. there is another aspect of the matter. the workman is not working in the bank at the moment. the reference was raised in the year 1988 and the award was given on 05.02.1997, and thereafter, an interim order was passed directing the petitioners to pay wages to the workman during the pendency of the writ petition. it has been stated that last drawn wages was being paid to the workman.15. in the light of the aforesaid, this court is of the opinion that the workman should be given retrenchment compensation and damages/cost for this long litigation. at this stage, the court is not inclined to remit this case to the tribunal on the question of the payment of wages and damages. the court is of the opinion that the litigation must come to an end, and finds that substantial justice would be done if rs. one lac is paid to the workman in full and final settlement towards retrenchment compensation and damages. consequently, the impugned award is set aside. the aforesaid amount of rs. one lac shall be paid by the petitioner within six weeks from today. the writ petition is allowed.
Judgment:

Tarun Agarwala, J.

1. Heard Shri K.L. Grover, the learned Senior Counsel, assisted by Shri Ramesh Singh, the learned Counsel for the petitioner and Shri Pradeep Verma, the learned Counsel for the respondent workman. The petitioners have challenged the validity and legality of the award, passed by the Industrial Tribunal, holding that the retrenchment of the workman from service was bad in law and that the petitioner was liable to reinstate the workman in service and pay the back wages at the rate at which the workman was lastly paid.

2. The facts leading to filing of the present writ petition is, that the workman contended that he was appointed as a Peon-cum-Waterman which was of a permanent nature and that he had worked for a period of 308 days upto 31st May, 1985, and that, the management retrenched the workman without complying with the provisions of Section 25-F of the Industrial Disputes Act. The workman further contended that since the retrenchment compensation was not paid, the cessation of the services of the workman was ex facie illegal and, consequently, he was liable to be reinstated with continuity of service and with full back wages.

3. On the other hand, the Bank came up with the stand that the workman was engaged as a casual labour by the erstwhile Bank known as Hindustan Commercial Bank Limited, and that he had worked intermittently. A specific plea was raised that the workman had worked only for 22 days initially and 13 days subsequently, and that, he had never worked for more than 240 days in a calendar year, and therefore, the question of compliance of the provision of Section 25-F of the Industrial Disputes Act did not arise.

4. The Tribunal, after considering the material evidence on record, came to the conclusion that the workman was engaged to do a permanent nature of work and that he had completed 240 days in a calendar year. The Tribunal further found that the retrenchment compensation had not been paid to the workman at the time when his services was dispensed with and that the provision of Section 25-F of the Industrial Disputes Act was not complied with by the management. The Tribunal, accordingly, directed reinstatement of the workman and further directed that the back wages would be paid at the rate which the workman concerned was lastly paid. The petitioner, being aggrieved by the said award, has filed the present writ petition.

5. It is relevant to state here that the workman was an employee of the erstwhile Bank, namely, Hindustan Commercial Bank Limited and that the said Bank was amalgamated with the petitioner after the alleged termination of the workman and before the dispute was referred for adjudication.

6. The finding of the Tribunal that the workman was engaged to do a permanent nature of work was based on the strength that the name of the workman concerned was picked from a panel prepared by the Bank, and that, the candidates from such panel were given employment in order to acquaint them of the regular course of the business of the Bank. The Tribunal further found that no witness of the management came forward to deny the factum that the workman was not engaged to do a permanent nature of work. Consequently, the Tribunal belied the stand of the management that the workman was engaged only to do casual work on account of exigencies of work.

7. On the question of 240 days, the Tribunal has relied upon a joint inspection note which indicated that the workman had worked for 92 days during 11th May, 1984 to 31st May, 1985 and that the vouchers for the remaining period was not produced by the management during the course of the joint inspection, and consequently, the Tribunal drew an adverse inference holding that the workman had worked continuously for more than 240 days in a year, and since no retrenchment compensation or pay in lieu of notice was given to the concerned workman, his retrenchment was found to be illegal on account of non-compliance of the provisions of 25-F of the Industrial Disputes Act. The Tribunal, consequently, directed reinstatement and for payment of the back wages.

8. Having heard the learned Counsel for the petitioners and the learned Counsel for the workman, the Court finds that a specific plea has been raised by the petitioners in the writ petition that the joint inspection was made only for the period up to 31.05.1985 and that the inspection for the remaining period could not be made on account of paucity of time, and that, the authorised representative of the workman did not appear thereafter before the Bank for inspection of the remaining documents. In this regard, the petitioner has further contended that an application was moved by the Bank before the Tribunal praying that the authorised representative of the workman may be directed to file the joint inspection report, and further submitted that the vouchers for the remaining period were available for inspection. It was also alleged in the writ petition that no order was passed by the Tribunal on the application filed by the petitioner.

9. No counter affidavit has been filed by the workman to deny these allegations. Consequently, the Court finds that the averments made in the writ petition remains unrebutted. However, these averments will not make much of difference inasmuch as the Court finds on a reading of the award that the Tribunal had based its finding on the basis of a joint inspection report. The petitioner has nowhere alleged in the writ petition that the joint inspection report was not filed before the Tribunal nor has alleged that the Tribunal's finding on the joint inspection report is perverse and that it was not based on any material evidence on record.

10. This Court finds that a joint inspection report was filed and the Tribunal has relied upon the said inspection report and has given a categorical finding that the petitioners did not allow the inspection of the vouchers for the remaining period. The best evidence was retained by the petitioners and the Tribunal was justified in drawing an adverse inference against the petitioners and was justified in holding that the workman had worked for more than 240 days in a calendar year.

11. In the light of the aforesaid, this Court is of the opinion that the findings given by the Tribunal does not suffer from any manifest error of law. The workman was employed on a permanent nature of work. The alleged dispensation of the service was in the year 1985. There is no evidence or averment made in the petition which indicates that the liabilities of the erstwhile Bank was not taken over by the present management.

12. In the light of the aforesaid, this Court is of the opinion that the present management cannot escape the liability arising out of the award. However, the direction of reinstatement on account of a technical breach or non-compliance of the provision of retrenchment compensation, as contemplated under Section 25-F of the Industrial Disputes Act appears to be harsh. The rule of reinstatement should not be followed as a matter of course. Something more was required to be held before granting reinstatement. The Tribunal was required to give a finding as to whether there was a requirement of work or not. The Tribunal has not given any finding as to whether the post was existing or not, nor any effort was made to find out as to whether the engagement was made in accordance with the Rules or Regulations of the Bank.

13. Consequently, on the mere ground that there has been a violation of the provisions of Section 25-F, this Court is of the opinion that the reinstatement of the services of the workman could not have been ordered. Recently, the Supreme Court in Nagar Mahapalika v. State of U.P. and Ors. : 2006 (5) SCC 127 has held that reinstatement should not be granted as a matter of course and that where the termination was found to be illegal on account of non-compliance of the provisions of Section 25-F of the Industrial Disputes Act, compensation could have been ordered. The said judgment is squarely applicable with the facts and circumstances of the case.

14. There is another aspect of the matter. The workman is not working in the Bank at the moment. The reference was raised in the year 1988 and the award was given on 05.02.1997, and thereafter, an interim order was passed directing the petitioners to pay wages to the workman during the pendency of the writ petition. It has been stated that last drawn wages was being paid to the workman.

15. In the light of the aforesaid, this Court is of the opinion that the workman should be given retrenchment compensation and damages/cost for this long litigation. At this stage, the Court is not inclined to remit this case to the Tribunal on the question of the payment of wages and damages. The Court is of the opinion that the litigation must come to an end, and finds that substantial justice would be done if Rs. one lac is paid to the workman in full and final settlement towards retrenchment compensation and damages. Consequently, the impugned award is set aside. The aforesaid amount of Rs. one lac shall be paid by the petitioner within six weeks from today. The writ petition is allowed.