Management of Andhra Bank vs Presiding Officer, Industrial Tribunal and Others

A.K. Ganguly, C.J.—This appeal has been filed by M/s. Andhra Bank against a High Court Order and has been registered as A.H.O. No. 81 of 2001.

The subject matter of challenge in this appeal is a judgment of the learned Single Judge dated 4.4.2001 whereby the learned Judge has been pleased to dismiss the writ petition (OJC No. 5837/99). The writ Petitioner was M/s. Andhra Bank, who challenged before the learned Single Judge the award passed by the Industrial Tribunal, Bhubaneswar dated 25th November, 1988.

The relevant facts of the case are that the Government of India, Ministry of Labour in exercise of power under Clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter called "the ID Act") referred a dispute for adjudication vide its order dated 8.4.1993. The reference which was sent for adjudication is as follows:

Whether the action of the management of Andhra Bank in terminating the service of Shri Ram Chandra Mallick and not offering him employment in the Bank is justified? If not, what relief is Shri Ram Chandra Mallick is entitled to?

Before the Industrial Tribunal, as also before the High Court both at the trial stage and before us at the appellate stage, the case of the workman, Respondent No. 2 in this appeal, is that he was called for an interview for selection in the post of Sub-staff in Andhra Bank on 12.1.1987 and his name was sponsored by the Employment Exchange. In the said interview, he was selected and appointed by the Bank in terms of its letter dated 3.8.1987. The express words in the appointment letter are as follows:

Further to our letter No. 742/3/563 dated 24.7.87, you are hereby appointed as temporary Sub-staff in our branch for a period of six days from 3.8.87 to 8.8.87. You are advised to join immediately.

Pursuant to such appointment, the workman was engaged intermittently in the branches of the Bank at Puri and Balugaon on 3.8.1987 and continued to work till his services were terminated on 19.11.1991.

The grievances of the workman are that while the appointment of other persons who were selected as Sub-staff continued, his services came to an end, even though the Bank''s guidelines are there for absorption of temporary employees in permanent posts. He also alleged that the Bank has regularized the services of other temporary employees who were similarly placed like the Petitioner after terminating his services. The case of the workman is that before alleged termination he has completed 418 days of service between 1987 to 1991. The workman-Respondent had also made representations for absorption in permanent post, but his representations for absorption were not accepted. Thereafter he raised a dispute and the conciliation over the dispute ended in a failure. That is why the Government made a reference for adjudication.

The only alleged justification given by the Bank for terminating the workman''s services appears to be that the educational qualification for the sub-staff had been stipulated to be Class VI or Class VII Pass. But the workman-Respondent passed Class VIII, which was allegedly found to be an over-qualification and accordingly his services were terminated. This appears from the communication made to the workman-Respondent by one Shri G. Pattanaik, Director for S.C. and S.T. Government of India, Bhubaneswar on his representation dated 23.3.1992.

The case of the workman-Respondent is that the appointment was given to him by the Bank after verifying his educational qualification and other certificates which were disclosed by him. Therefore, it is totally unfair on the part of the Bank to change their mind and terminate his services on the alleged ground mentioned above. It is also the case of the workman-Respondent that the Bank has engaged other temporary employees with higher educational qualification. Therefore, termination of services of the workman-Respondent and subsequent non-consideration of his case for re-employment is unjustified and amounts to unfair labour practice.

Before the writ Court and also before this Court, the Bank in its pleading stated that in anticipation of exigency which may arise as a result of absence of a permanent staff on leave, the management of the Bank prepared a panel of temporary Sub-staff from out of the sponsored list of Employment Exchange. The empanelled temporary employees are appointed against casual vacancies and their employment normally ceases on expiry of such temporary appointment. The engagement of the workman-Respondent as against such casual vacancy in different spells was for a limited number of days. It is also the case of the Bank that as the workman-Respondent was not engaged continuously for a period of 240 days in a calendar year he cannot seek any remedy before the Tribunal. Further case of the management of the Bank is that the objection to the appointment of the workman-Respondent is that he passed Class VIII which according to the management was an over qualification for the post. It was also stated that there is no infraction of any statute in terminating the services of the workman-Respondent and he has not claimed for regular appointment because he was neither interviewed nor selected against any regular vacancy.

In order to decide such factual controversies, the Tribunal raised two issues and they are:

(1) Whether the action of the management of Andhra Bank in terminating the service of Shri Ram Chandra Mallick and not offering him employment in the Bank is justified?

(2) To what relief, if any, the workman is entitled?

The Tribunal in its reasoned award came to the conclusion that from Ext.C, dated 5.2.1987 issued by the Regional Manager of the Bank it appears that certain notes of caution were appended therein to the effect that empanelled sub-staff, like the workman, shall not be permitted to work for more than 150 days in 12 months and a break of one week in every two months shall be observed. According to the Tribunal the said terms and conditions coupled with the recitals of the impugned order shows that the management indulged in unfair labour practice to deny the workman the right which is incidental to an employment which is governed under Industrial Disputes Act. The Tribunal found, in view of those materials, that the management was guilty of unfairness in stipulating those conditions. In support of the said finding the Tribunal relied on the judgment of the Supreme Court in the Case of H.D. Singh Vs. Reserve Bank of India and Others, In paragraph 6 of the judgment in H.D. Singh, the Supreme Court quoted the Reserve Bank''s internal circular dated 26th June, 1976 at page 135 of the report. In the said circular there are directions by the Reserve Bank to keep candidates in such a way that they do not get the benefit of Section 2(oo) of the Industrial Disputes Act. The instruction was to keep such employees on rotational basis so that they do not get the benefit of that Section. The Hon''ble Supreme Court found that said practice to be an unfair labour practice in as much as the same prevents the workman from getting the benefits under the Industrial Law. Such action on the part of the Reserve Bank of India was condemned by the Supreme Court in paragraph-10 of the judgment. The learned Tribunal has relied on the same since the instructions in the instant case given by the Appellant Bank are also on the same line. The said judgment of Supreme Court in H.D. Singh has subsequently been approved by a three Judge Bench of the Supreme Court in the case of D.K. Yadav Vs. J.M.A. Industries Ltd., (see at page 265 of the report). Therefore, the finding of the Tribunal that the Bank is guilty of unfair labour practice is based on a proper assessment of the factual aspect and also on sound logic, based as it is on Supreme Court''s decision. Therefore, on those reasons the Tribunal held that the termination of service of the Respondent-workman is not justified and the same is liable to be set aside. In so far as over-qualification of the Petitioner is concerned, the Tribunal found, relying on the Supreme Court''s judgment in H.D. Singh, that in view of the grave unemployment situation in this country it is common knowledge to find that both graduate boys and girls, sweep the roads and persons having post-graduate qualification, apply for the posts of peons. Therefore, the alleged ground which appears to be the sole ground for terminating the service of the workman namely that he read up to Class-VIII whereas, the required qualification is Class-VII, is totally an unjustified ground. The Tribunal has noted that while seeking employment the workman did not suppress his qualification but disclosed everything and it is not the case of the Bank that the workman acquired the aforesaid qualification after his appointment. Since the termination of the workman was found to be without any justification, and rightly so by the Tribunal, it decided the second issue directing reemployment of the workman from the date he was thrown out from employment with the observation that the workman shall be entitled to such benefit as have accrued to persons empanelled subsequent to the empanelment of the workman.

The judgment of the learned Judge of the writ Court before whom the award was assailed also shows that the learned Judge has considered all these aspects in their correct perspective. Learned Judge of the writ Court on the basis of the materials placed before him came to a finding that the opposite party No. 2 is a workman and the Tribunal was within its jurisdiction to entertain the reference. The learned Judge also approved the finding of the Tribunal and found that the Bank indulged in unfair labour practice. The writ Court found that the said finding is not beyond the scope of reference inasmuch as the reference included the same within its scope, for taking a decision on the question of justification of the order of termination of the Petitioner. Since the question of justification is an issue before the Tribunal, in our opinion the Tribunal is entitled to decide the issue whether the Bank indulged in any unfair labour practice or not in terminating the service of the workman.

We also hold that the Tribunal has decided this issue on the basis of the materials on record and keeping in view of the decision of the Supreme Court. The question of alleged over-qualification of the workman has also not been accepted by the Tribunal as well as by the learned Judge of the writ Court. In our view, the findings of the Tribunal are rightly based on the judgment of the Supreme Court. It has also come on record that the workman might not have completed 240 days in one calendar year, but he has certainly worked for more than 240 days. The workman could not complete 240 days in one calendar year in view of the internal circular of the Bank which is an instance of unfair labour practice. Therefore, this Court does not find that there is any reason to interfere with the finding of the Tribunal or with the order passed by the learned Judge of the writ Court.

The learned Counsel for the Bank relied on two judgments of the Supreme Court. One was rendered in the case of Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari, . In that case the termination of service was in respect of a messenger who was engaged on a daily wage basis by the Bank, but no appointment letter was issued to him. The fact situation in this case is totally different. Here an appointment letter was issued to the workman and he was appointed after a valid process of selection and interview. In the case of Rakesh Kumar, no reference was made regarding validity of retrenchment u/s 25G. The order of reference was fully confined to issues arising out of Section 25H of Industrial Disputes Act. In that situation the finding by the Tribunal that the order of termination of service was in violation of Section 25G, was found illegal by the Supreme Curt. In the instant case the Tribunal''s judgment cannot be assailed on those grounds. Here the order of reference which was framed by the Government was a valid reference and there was no error in the same. Therefore, the decision in Rakesh Kumar has no application to this case.

The another judgment which was cited by the learned Counsel for the Bank was rendered in the case of Manager (Now Regional Director) R.B.I. Vs. Gopinath Sharma and Another, . One of the points which was decided in the case was that the reference was made in respect of a stale dispute. In that case the name of the Respondent was not included in the fresh list from 1.7.1976 to 30.7.1977 and the reference was made at a very late stage i.e. in 1989, which was nearly after a gap of 13 years. The factual position of the case is totally different from the present case at hand. Apart from that Respondent who was a daily wager worked in the Bank for only 58 days and as such the Court held that no relief can be granted u/s 25G. For the reasons discussed above, this Court is of the opinion that the judgment in the case of Gopinath Sharma has no application to this case.

For the aforesaid reasons, this Court dismisses the appeal and upholds the order of the learned Judge of the writ Court which has affirmed the order of the Tribunal. However, there shall be no order as to costs.

N. Prusty, J.

I agree.