Punjab National Bank vs Anil Kumar Jain

Ajay Rastogi, J.—Instant petition is directed against Award dated February 8, 2005 (Ann.1) whereby Central Govt. Industrial Tribunal Jaipur answered Reference No. L-12012/88/2003 (IR(B-II) in affirmative in favour of Respondent-1 holding action of Punjab National Bank ("Petitioner-Bank") terminating services of the workman as illegal and unjustified; accordingly directed Petitioner-Bank to reinstate the workman with continuity of service without back wages.

As alleged in statement of claim, the Respondent-workman was engaged as Mini Deposit Collector under Mini Deposit Scheme of the Petitioner Bank vide order dated May 9, 1977 - as per para (a) whereof he was asked to work as publicity-cum-collection: representative of the Bank on a commission of 21/2% on the deposits collected by him -pursuant to which an agreement was executed between Petitioner-Bank and the workman on May 13, 1977. Respondent workman: continuously worked with Petitioner Bank under Mini Deposit Scheme till July 3, 1989; and vide letter dated July 3, 1989 (Ann.3) Respondent workman was informed conveying communication of Sr. Regional Manager of'' Branch Jaipur vide letter dated June 28, 1989 advising him not to open further fresh mini deposit account with immediate effect.

However, it has come on record that'' Respondent-workman was permitted to collect funds in old mini deposit accounts under the Scheme till July 23, 1992 despite there being communication dated July 3, 1989 (Ann.3) advising not to open new fresh accounts under mini deposit scheme - reference whereof has been made in para 29 of the Award impugned.

At this stage when the workman was declined to open new accounts vide order dated July 3, 1989 (Ann.3), though practically he was prohibited to perform his duties and obviously, was excluded from opening new accounts & enhancement of collection under the Scheme and which practically amounted to termination; the workman challenged the same before civil Court where he lost his case vide judgment dated November 20, 1989; and thereafter he continuously made his representations (Exhibit W-39, W-40 and W-41) as referred to in para 29 of the Award; and finally raised industrial dispute by way of filing application before Conciliation Officer in the year 2002. Ultimately appropriate Government made Reference for adjudication of the dispute ad infra:

Whether action of the management of Punjab National Bank in terminating services of Shri Anil Kumar Jain s/o Shri Ratan Lal Jain, Deposit Collector w.e.f. July 3, 1989 is legal and justified: if not, what relief is the disputant is entitled for?

Petitioner Bank filed written statement raising objection that Reference having been made after an inordinate delay of 13 years itself disentitles the workman in seeking any relief apart from it on merits, it was submitted that the Respondent is not a workman and since mini deposit scheme was not found to be viable in the year 1989; thus opening of new accounts there under was prohibited-pursuant to which workman was communicated vide letter dated July 3, 1989 advising him not to open new accounts; and that apart, mini deposit scheme stood closed w.e.f. July 23, 1992, raising industrial dispute after inordinate delay of 13 years is abuse of process of law.

On the pleadings of parties on record, learned Tribunal framed three issues ad infra:

I. Whether the workman was appointed as Mini Deposit Representative by the non-applicant Bank on May 9, 1977, whose duties were of perennial nature and who continuously worked upto July 3, 1989? BOA

II. Whether the service of the workman was terminated w.e.f. July 3, 1989 in violation of the provision contained u/s 25-F of the Act and Rule 77 of the Central Industrial Rules, 1957? BOA

III. Whether on account of raising the dispute belatedly the claim of the workman is liable to be rejected? BONA

As regards issue Nos. I and II, learned Tribunal finally held that the workman had worked from May 9, 1977 till July 3, 1989 as Mini Deposit Collector and in fact was permitted to collect funds of old accounts under mini deposit scheme till July 3, 1992 which showed that the workman was practically working with the Petitioner Bank upto July 3, 1992 and it was finally held that Anil Kumar Jain was workman within the meaning of Section 2(s) of the Act and his disengagement while advising him not to open new accounts w.e.f. July 3, 1989 and thereafter complete disengagement w.e.f. July 23, 1992 till which date, he was practically allowed to collect funds for old accounts under mini deposit scheme, it being retrenchment as having worked for more than 240 days in preceding 12 months from the date of alleged termination and disengagement, Petitioner-Bank has contravened provisions of Section 25-F of the Act.

As regards preliminary objection raised by Petitioner Bank in regard to dispute having been raised belatedly, learned Tribunal observed that initially workman challenged his termination/disengagement before Civil Court wherein he lost his case and at the same time, submitted various representations one after the other (Exhibit W-37, W-39 to W-41) not only to the Ministry of Finance but also to the Petitioner- Bank authority right from January 12, 1993 till March 30, 1999 - reference whereof in details have been made in his affidavit appended to the statement of claim, to which there was No. denial on behalf of the Bank, as taken note of in para 29 of the Award.

Accordingly, learned Tribunal observed that the workman has endeavored to render an explanation of the delay caused in raising industrial dispute and it was not a case where lapse of time had caused fading or even eclipse of the dispute, and the dispute had remained alive during long interval, but the delay as such will not be fatal to adjudicate reference made and relief could always be moulded in the facts of each case. At the same time, there was No. material on record that the workman was out of employment pending adjudication of dispute under Reference after being disengaged from service, therefore, while answering Reference in affirmative in favour of workman holding action of Petitioner-Bank in terminating his services, to be illegal being in violation of Section 25-F of the Act, learned Labour Court further held that the workman is entitled to reinstatement with continuity of service but without back wages.

It will be relevant to mention that after notices were served, at one stage on May 11, 2006 after seeking instructions from Petitioner Bank, Counsel submitted that the Bank is prepared to pay a lump sum compensation of? One lac in lieu of reinstatement, but it appears that aforesaid offer was not acceptable to the workman; as such on next date on May 29, 2006, this Court stayed the operation of impugned Award till disposal of the petition.

Counsel for Petitioner-Bank submits that services of the workman were terminated on July 3, 1989 as is evident from letter (Ann.3) directing him not to open new accounts under Mini deposit Scheme and even if he had practically worked upto July 23, 1992 to collect funds from old accounts holders under mini deposit scheme; but since the Scheme, itself was finally closed, thereafter the workman had raised industrial dispute after almost 10 years while efflux of time had caused fading or even eclipse of the dispute; rather the dispute, itself having not remained alive had ceased to exist; therefore, interference having made by the Tribunal in an industrial dispute after 13 years is contrary to law laid down by Apex Court. In support, Counsel placed reliance upon decision of Apex Court in Steel Authority of India Ltd. and Another Vs. State of West Bengal and Others, and of this Court in Divisional Forest Officer v. Raghuvar 2002 IV LLJ Sup 1125 : 2002 1 WLC 501

Counsel further submits that once mini deposit scheme being not viable, itself stood finally closed, even if this Court finally concludes that the Bank has violated provisions of Section 25-F of the Act, there could not be reinstatement and a lump sum of.One lac was offered by the Bank as compensation in lieu of reinstatement but was declined by the workman as is evident from order sheet dated May 29, 2006. In the facts of the case, finding recorded by learned Tribunal while directing reinstatement of workman with continuity of service is totally perverse and deserves to be set aside.

Counsel further submits that earlier in Indian Banks Association Vs. Workmen of Syndicate Bank and Others etc. etc., , the Apex Court held that Commission Agents/Deposit Collectors of Banks are workmen within the meaning of Section 2(s) of the Act, which provides protection of Industrial Disputes Act, 1947; however, in subsequent judgment rendered on February 28, 2008 in A.P. Bank Deposit Collectors Assoc, v. State Bank of India (Transferred Case (C) Nos. 79/2005), Apex Court finally observed that even if Bank deposit Collectors are held to be workmen but they are not entitled for regular absorption and if deposit scheme itself has been abandoned by way of policy decision, there cannot be said to be any infraction of Section 25-F of the Act.

Counsel submits that in instant case, mini deposit scheme has come to an end and abandoned as is evident from communication dated July 3, 1989 while he was advised not to open new accounts under the scheme; in such circumstances, once the Scheme, itself, was abandoned by Petitioner Bank, even if Respondent-workman is held to be workman u/s 2(s), there cannot be said to be any infraction of Section 25-F of the Act; and the findings recorded under Award impugned while holding impugned action of Petitioner-Bank to be in violation Section 25-F of the Act is totally perverse and deserves to be set aside.

Per contra, Counsel for Respondent-workman while supporting the findings recorded by learned Tribunal under Award impugned, submits that there is No. such limitation provided under the Act for raising industrial dispute and if there is any delay, certainly it has to be satisfactorily explained; while in instant case, Respondent workman has placed material on record to justify the alleged delay in raising industrial dispute and taking note whereof, learned Tribunal being finally satisfied therewith about delay having caused in approaching the Tribunal; in such circumstances, in the absence of findings recorded while condoning the alleged delay and examining the dispute on merits, being perverse or not supported by any material on record, it does not call for interference by this Court. In support, Counsel placed reliance upon decisions of this Court in Satish Sharma v. Union of India 2002 III LLJ 714 Raj , Ram, Bharos Khawad v. State 2006 IV LLJ (Suppl) 191 (Raj) : 2006 1 WLC (Raj) 317 (DB) and also of Apex Court in State of Punjab Vs. Anil Kumar, Taking assistance whereof, Counsel submits that while the dispute having remained alive during long interval though not galvanized by the workman or the Union due to other justified reasons, it does not cause the dispute to wan into total eclipse; as such No. error has been committed by the Tribunal in rejecting preliminary objections raised by Petitioner Bank about delay in raising dispute.

Counsel further submits that those having been appointed by the Bank as Commission Agent/Deposits Collector, although were not held to be regular employees but in Indian Banks Assoc, v. Workmen of Syndicate Bank (supra) were held by Apex Court as workmen within the meaning of Section 2(s) of the I.D. Act; as such are entitled to seek protection of I.D. Act. Counsel further submits that once the workman has worked for more than 240 days in preceding 12 months of his termination, action of the Petitioner Bank in terminating his services is held to be in violation of Section 25-F of the Act, as a consequence whereof, No. error has been committed by learned Tribunal in awarding reinstatement of workman with continuity in service.

Counsel for workman vociferously submits that both, present workman and one Krishna Kr. Taneja, while working as Deposits Collector under mini deposit scheme under Petitioner-Bank''s Branch at Alwar and Bharatpur respectively, were terminated from service and while K.K. Taneja raised industrial dispute against Petitioner Bank and Reference was answered in affirmative holding his termination to be bad in law being violative of Section 25-F of the Act, he was held to be entitled for reinstatement with continuity in service with full back wages vide Award dated November 21, 1996 passed by Tribunal, in CIT-18/1992 - against which Petitioner Bank filed C.W.P.-2384/99 which was dismissed vide order dated September 21, 2001 in the light of in Indian Banks Assoc, v. Workmen of Syndicate Bank (supra) and in compliance whereof, K.K. Taneja was reinstated in service in terms of the Award as Deposit Collector under mini deposit scheme as is evident from letter (Ann.R/1/3) produced alongwith reply; and pursuant to which he was allowed to perform duties of Deposit Collector under aforesaid scheme as is evident from letter dated April 1, 2002 (Ann.R/1/4) and since then he is presently working as Deposit Collector under mini deposit scheme at Bharatpur and this fact has not been disputed by Counsel for Petitioner Bank; in such circumstances different standards can not be adopted by Petitioner Bank; more-so when both are similarly situated; and denial of reinstatement in case of Respondent workman herein is certainly in violation of Article 14 of the Constitution. In support, Counsel for workman placed reliance on the decision of Apex Court in Birla Corpn. Ltd v. Commissioner of Central Excise (2005) 6 SCC 95 and of this Court in Radha Krishna Sharma v. Raj. Fin. Corpn. (1986) RLR 518 and in Bhagirath Singh v. Sikar Kendriya Sahakari Bank Ltd. (2008) WLC (UC) 216 (DB).

This Court has considered rival contentions of both the parties and with their assistance, examined material on record. As regards preliminary objections raised by Petitioner Bank in their written statement about alleged delay in raising industrial dispute, suffice it to say that there is No. limitation provided u/s 10 of the Industrial Disputes Act, 1947 and the words, "at any time" used in Section 10 prima facie indicates about a period without boundary. It has been examined by Apex Court in Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others, which has been taken note of by this Court (DB) in Ram Bharos Kharwad v. State (supra) and Satish Sharma v. Union of India (supra) and in which Apex Court had occasion to interpreted Section 10 and finally observed that Reference should not have been quashed merely on the ground of delay and long delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief and it was a case of industrial dispute for adjudication raised after; 15 years, which was not considered to be sufficient to deprive claim of workman and in para 12 of the decision observed ad infra 2001 II LLJ 788 at p. 792:

There are cases in which lapse of time had caused fading or even eclipse of the dispute, if No. body had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse.

Taking note whereof, the Apex Court further examined industrial dispute raised after 13 years in State of Punjab v. Anil Kumar (supra) and in view of factual position brought on record, though did not find any infirmity in the Award of Labour Court duly affirmed by High Court as regards entitlement of workman for reinstatement but at the same time, observed that the fact of belated approach cannot be lost sight of in regard to payment of back wages if the dispute remains alive and has not faded with passage of time and certainly the relief can be moulded by adjudicatory authority while answering the Reference.

In the instant case, the workman came with reasonable explanation of having earlier approached civil Court and thereafter having made several representations duly taken note of by learned Tribunal in para 29 of Award impugned and the delay being satisfactorily explained of belatedly raising industrial dispute after 10 years, learned Tribunal has finally observed that the workman has endeavoured to render explanation of the delay in question and finally moulded relief curtailing back wages of workman while answering the Reference. This Court does not find any manifest perversity in the findings recorded by learned Tribunal while examining the preliminary objection about alleged delay in question, which does not require any interference by this Court.

As regards submission made by Counsel for Petitioner Bank that mini deposit scheme itself has come to an end from July 3, 1989, suffice it to say that there is No. material placed on record either before learned Tribunal or this Court to substantiate closure of the scheme. However, letter dated July 3, 1989 referred to by Petitioner-Bank having been communicated to workman only discloses that the workman was advised not to open new accounts under mini deposit scheme but indisputably, he was allowed to collect funds for depositing in old accounts opened under mini deposit scheme till July 23, 1992.

That apart, in case of similarly situated workman namely Krishna Kumar Taneja who too was terminated from service while working as Deposit Collector under mini deposit scheme of Petitioner Bank at its Branch Bharatpur, indisputably was reinstated in service in terms of Award dated November 21, 1996 (Ann.R.1/2) passed in CIT-18/1992 wherein the Tribunal finally answered the Reference in affirmative ad infra:

"Vernacular matter omitted."

Against which, Petitioner Bank filed C.W.P.- 2384/99 which was dismissed by this Court vide order dated September 21, 2001 as having rendered infructuous in view of statement of Counsel for Petitioner-Bank that the Bank has decided to give benefits of the Award as per the guidelines given by Apex Court in case of Indian Banks Association therefore, he did not press the writ petition any further. In compliance whereof, Krishna Kr. Taneja was reinstated vide order (Ann.R.1/3) and was allowed and authorized to collect (deposits under mini deposit scheme as is evident from letter dated April 1, 2002 (Ann.R/1/4) and since then he is working as Deposit Collector under mini deposit scheme. Thus submission made by Counsel for Petitioner Bank that the scheme has come to an end, in the facts of the case is not supported by material on record and deserves to be rejected.

In the opinion of this Court, once two persons similarly situated like Respondent-workman & Krishna Kumar Taneja who were working as Deposits Collector with Petitioner Bank though at its two different Branch one at Alwar and another at Bharatpur; and on termination, one being'' reinstated in service in terms of the Award and is presently working under mini deposit scheme, and another is not being treated at par despite the Award is in his favour for reinstatement with continuity of service, the Petitioner Bank cannot be held to be justified in adopting different standards and taking contrary stand in case of similarly situated Respondent workman and that certainly denied the legitimate claim of the Respondent workman.

As regards submission made by Counsel for Petitioner Bank in view of latter judgment of Apex Court in A.P. Bank Deposit Collectors Assocn. v. State Bank of India (Transferred case (C) Nos. 79/2005 decided on 28/08/2008), it is of No. substance for the reason that it was a case where State Bank of India took a policy decision vide its circular dated June 4, 2001 to discontinuing with Janata Deposit Scheme and taking note whereof, the Apex Court observed that if the Bank has taken pending decision to discontinue or abandon the scheme, there could not be any reinstatement even if there was any infraction of Section 25-F of the Act but they are entitled for compensation. However, in instant case, No. such policy decision has been placed on record to discontinue the mini deposit scheme at the same time, person similarly situated namely Krishna Kr. Taneja has been reinstated in service on his termination being held in violation of Section 25-F of the Act in terms of the Award under the same mini deposit scheme as is evident from letter dated April 1, 2002 (Ann. R/1/4); as such No. inference can be drawn from letter dated July 3, 1989 (Ann.3) that mini deposit scheme has come to an end or it has been abandoned by the Petitioner Bank, while it only discloses that as per letter dated June 28, 1989 of Sr. Regional Manager, Jaipur Branch, workman Respondent herein was advised not to open new accounts under mini deposit scheme inasmuch he was allowed to collect funds for deposits in old accounts under the scheme.

In such circumstances, once-Respondent has been held to be workman within the meaning of Section 2(s) of Industrial Disputes Act, 1947, as observed in Indian Banks Assoc, v. Workmen of Syndicate Bank (supra) as having worked for more than 240 days in preceding 12 months on the alleged date of termination, certainly there was infraction of Section 25-F of the Act and if similarly situated person (Krishna Kr. Taneja) has been reinstated in service as Deposit Collector and is continuing under mini deposit scheme, this Court does not find any perversity in the finding recorded by learned Tribunal in answering Reference affirmatively in favour of workman for his reinstatement with continuity of service under the Award impugned and there is No. manifest error being committed which may call for interference of this Court under Article 226 and 227 of the Constitution.

Consequently, writ petition fails and is hereby dismissed. Since Respondent workman is out of employment for sufficient long time, Petitioner Bank is directed to implement the Award impugned within three months. No. costs.