State Bank Of India vs Mukesh Kumar

S.

No.",Case No.,"CGIT

No.",Name,"Worked

from","Worked

upto","No. of

Days in

last year

1,"WP.

No.16779/14",09/12,Umesh Saini,20-01-99,14-08-10,212

2,"WP.

No.15964/14",10/12,Mukesh Sharma,03-03-99,23-08-10,262

3,"WP.

No.16701/14",11/12,Raj Kumar Sen,21-06-98,23-08-10,252

4,"WP.

No.16703/14",12/12,Mukesh Barman,15-03-98,28-07-10,322

5,"WP.

No.16777/14",13/12,"Ram Narayan

Pathak",01-04-99,31-08-10,293

6,"WP.

No.16707/14",14/12,Ravindra Yadav,26-02-99,21-08-10,281

7,"WP.

No.16775/14",16/12,Sunil Nagar,04-07-98,21-08-10,266

8,"WP.

No.16704/14",1/13,Ravi Yadav,03-02-00,21-08-10,260

employment.,,,,,,

The next contention of Shri Shroti is that the Tribunal has interfered on violation of Section 25G & H of the Industrial Disputes Act.  The,,,,,,

Tribunal applied the principle of ‘first come last go’ whereas there was no pleadings or evidence in support of the said contention of the,,,,,,

workmen. Thus, interference by the Tribunal on the said ground is wholly unwarranted. Shri Shroti placed reliance on 2006 (8) SCC 508 (State of",,,,,,

Rajasthan vs. Sarjeet Singh and another) to bolster his contention that on alleged violation of Section 25G & H also reinstatement is not automatic and,,,,,,

in such cases the court can grant compensation in lieu of reinstatement. Reliance is placed on 2006 (11) SCC 684 (Jaipur Development Authority,,,,,,

vs. Ramsahai and another) for the said proposition. Next reliance is placed on 2006 (2) SCC 711 (State of MP and others vs. Arjunlal Rajak),,,,,,

wherein it is held that once a department or project is abolished, the adequate relief is to grant compensation and not the reinstatement. Same",,,,,,

principle is applied by Supreme Court in case of closure of a unit in 2007 (7) SCC 366 (District Red Cross Society vs. Babita Arora and others).,,,,,,

Reliance is made to 2006 (1) SCC 530(Regional Manager, SBI vs. Rakesh Kumar Tewari) to contend that in order to apply Section 25G and 25H of",,,,,,

the ID Act, the burden was on the workmen to make out a case. In absence of adequate pleadings, evidence and foundation, no award for violation",,,,,,

of Section 25G & H can sustain judicial scrutiny.,,,,,,

Shri Shroti submits that one workman Shri Umesh Saini has admittedly worked for 212 days in preceding 12 months. The Tribunal has erred in,,,,,,

counting Saturdays and Sundays whereas those Saturdays and Sundays were not paid holidays. Reliance is also placed on AIR 1986 SC 132 (H.D.,,,,,,

Singh vs. Reserve Bank of India and others). On more than one occasion, Shri Shroti contended that in the present case, the Tribunal at best could",,,,,,

have granted adequate compensation to the workmen which was granted in certain connected matters but Tribunal erred in granting reinstatement,,,,,,

with 50% back wages.,,,,,,

Per conta, Shri Sanjay Verma, learned counsel for the workmen supported the impugned award. He submits that the conciliation application is",,,,,,

already on record and the dispute raised by the workmen is arising out of the grievance of the same workmen. Thus, necessary requirement of sub-",,,,,,

section (2) of Section 2A of the ID Act are satisfied and it cannot be said that dispute was not maintainable. Even other wise, Shri Verma contends",,,,,,

that as per the scheme and object of Section 33A, the dispute was maintainable before the Tribunal.",,,,,,

Further more, it is urged that a plain reading of impugned award shows that by direction No.(4), the Tribunal has granted compensation to certain",,,,,,

workmen. The said direction is part and parcel of same impugned award. The employer has complied with the direction contend in para 29(4),,,,,,

and granted them compensation. In other words, employer did not challenge the award in cases of grant of compensation. Thus, the employer",,,,,,

has relinquished his right to challenge the same award in cases of present workman.,,,,,,

Shri Verma submits that as per the admitted facts the workmen have completed 240 days in a calendar year before their termination. Thus,",,,,,,

their termination without following the mandate of Section 25F makes the termination void ab initio as per the Division Bench judgment of this court,,,,,,

reported in 2010 (3) MPHT 243. In that case, the workmen, for all practical purposes, would have continued and therefore present employer",,,,,,

cannot plead that they have no liability to continue them in employment.,,,,,,

Shri Verma during the course of arguments placed reliance on Rule 77 of Industrial Dispute (Central) Rules and urged that it was the duty of the,,,,,,

employer to prepare a seniority list, display it in the Notice Board before termination. Since management has not produced this seniority list, the",,,,,,

workmen were not in a position to establish whether Section 25G & H were attracted. The management witness during crossexamination admitted,,,,,,

that no such seniority list was prepared/published. Section 25FF of the ID Act and Section 35(8) of the State Bank of India Act, 1955 are relied",,,,,,

upon to contend that the termination without compensation cannot be upheld in the teeth of these provisions also. In the event of their continuation,,,,,,

with the present employer, no compensation was required to be paid. Otherwise also, there is no justification in not continuing and terminating the",,,,,,

present workmen. Shri Verma also placed reliance on AIR 1986 SC 132 and argued that for the purpose of counting days as per Section 25B of the,,,,,,

ID Act, the Saturdays and Sundays are required to be taken into account.",,,,,,

No other point is pressed by the learned counsel for the parties.,,,,,,

I have heard the learned counsel for the parties and perused the record.,,,,,,

As noticed, the preliminary objection of employer regarding maintainability of dispute before the Tribunal was founded upon the ground that the",,,,,,

Tribunal entertained disputes directly without ensuring that requirement of Section 2-A(2) of Industrial Disputes Act are satisfied. This is an,,,,,,

admitted fact between the parties that alleged deficiency of not raising industrial dispute by way of conciliation proceedings relating to termination is,,,,,,

common in respect of all the workmen whose disputes are adjudicated upon and decided by the Tribunal by impugned common award. This is,,,,,,

equally admitted that the employer has implemented the award in relation to those workmen who were given benefit of compensation in lieu of,,,,,,

reinstatement. The challenge is made to the award only in respect of the workmen who have been benefited by direction of reinstatement with fifty,,,,,,

percent backwages. It is also noteworthy that during the course of argument, Shri Ashish Shroti, learned counsel for the Management contended that",,,,,,

the proper course for the Tribunal was to grant compensation in place of reinstatement and backwages. If this court decides that the dispute raised,,,,,,

by workmen directly before the Tribunal without initiation of conciliation proceeding was bad in law, the effect would be that the common award for",,,,,,

certain set of workmen will be set aside whereas, admittedly, another set of workmen governed by the same award, have received the benefit of",,,,,,

compensation. I do not propose to create such an anomalous situation where despite similar preliminary objection of employer, one set of workmen",,,,,,

have enjoyed the fruits of the litigation whereas the other are deprived for the reason that outcome of litigation/ relief in their relation is little,,,,,,

different. Thus, I am not inclined to interfere in the impugned award on the ground of preliminary objection raised by the employer. Needless to",,,,,,

emphasis that this legal objection raised by the employer will remain open to be decided in appropriate case. Since this Court for the reason stated,,,,,,

above has declined to interfere in the award founded upon the preliminary objection, I am not inclined to examine whether subject matter of",,,,,,

conciliation application and application preferred under Section 2-A were common. The question of applicability of Section 33A also pails into,,,,,,

insignificance for the same reason. In the factual matrix of this case, interference in the award on the ground of said preliminary objection is declined.",,,,,,

So far the workman Shri Umesh Saini is concerned, he has worked for 212 days in the preceding 12 months from his date of termination.Â",,,,,,

However, it is not disputed by the employer that if Saturdays' and Sundays' of preceding 12 months are counted, his working days will be beyond 240",,,,,,

days. In H.D.Singh (supra), the Apex Court came to hold that for counting 240 days, Saturdays' and Sundays' can be counted. No factual",,,,,,

foundation was pointed out to this court during the course of argument by learned counsel for the employer that payments were not made during,,,,,,

Saturdays' and Sundays' for the period in question. Thus, I find no reason to interfere in the findings of the Tribunal that in entirety the said",,,,,,

workman has worked for more than 240 days.,,,,,,

In view of legislative mandate of Section 25-F of Industrial Disputes Act, workmen's termination without giving them retrenchment",,,,,,

compensation is bad in law. In view of catena of judgments on this point, it can be safely concluded that termination of respondent/ workman, is",,,,,,

bad in law. As per various clauses including clause-5 of the notification dated 28.07.2010, the State Bank of India cannot shirk from its liability to",,,,,,

bear the outcome of a litigation which is based on a proceeding or cause of action which might have arisen even before issuance of said,,,,,,

notification. Clause-5 of the notification reads as under :-,,,,,,

Any proceeding or cause of actions, suits, decrees, recovery certificates, appeals and all other legal proceedings pending before any court or",,,,,,

tribunal or any other authority by or against the Transferor Bank may, as from the effective date, be continued and enforced by or against the",,,,,,

Transferee Bank in which the Transferor Bank has vested by virtue of this Order as it might have been enforced by or against the Transferor Bank,,,,,,

as if this Order had not been in force and shall cease to be enforceable by or against the Transferor Bank.""",,,,,,

(Emphasis supplied),,,,,,

This is equally settled that in all cases where termination is held to be bad in law for violation of Section 25-F of Industrial Disputes Act, as a",,,,,,

thumb rule, it cannot be directed to grant reinstatement and backwages. This depends on the facts and circumstances of a case and also on the",,,,,,

nature of employment.  The Apex Court in AIR 2011 SCW-6747 (Bharat Sanchar Nigam Ltd. Vs. Man Singh) held that appropriate relief for a,,,,,,

terminated daily rated employee is to grant him compensation and not the relief of reinstatement and backwages. The same principle was followed in,,,,,,

AIR 2014 SCW-528 (B.S.N.L Vs. Bhurumal). This Court by following the aforesaid ratio decidendi decided W.P.No.14451/2016 (Sports and,,,,,,

Youth  Welfare Department Vs. Anurudhha Yadav) and W.P.No.718/2016 (Rajkumar Vs. Commissioner) decided on 10.03.2016.,,,,,,

The Apex Court in the case of Bhurumal (supra) held that in the case of termination of a daily-wage worker and where the termination is found,,,,,,

illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, the Court is consistent in taking the view that",,,,,,

in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the,,,,,,

ends of justice. Rationale for shifting in this direction is obvious.,,,,,,

In the same judgment, it was further held that Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right",,,,,,

to seek regularisation. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is",,,,,,

going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again,,,,,,

after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay.",,,,,,

Similar view is taken by Supreme Court in the case of (2013) 5 SCC 136 (Rajasthan Development Corpn. vs. Gitam Singh).,,,,,,

In the light of this settled legal position, in my view, reinstatement with 50% backwages could not have been granted to the workmen. I find",,,,,,

substance in the argument of Shri Shroti that in the cases of present nature grant of compensation is the proper relief.,,,,,,

So far as the argument regarding finding of Tribunal in relation to applicability of Section 25-G and 25-H of I.D. Act are concerned, I find",,,,,,

substantial force in the argument of Shri Shroti that whether the workmen were terminated in utter violation of principle of “first come last go†or,,,,,,

not, is the question of fact, which should have been pleaded and proved by the workmen. In absence of any pleading and proof, there exists no",,,,,,

foundation to attract Section 25-G and 25-H of I.D. Act. The Apex Court in the case of Regional Manager, SBI vs. Rakesh Kumar Tewari (2006) 1",,,,,,

SCC 530 held that,,,,,,

“These are all questions of fact in respect of which evidence would have to be led, the onus to prove the first requirement being on the workman",,,,,,

and the second and third requirements on the employer. Necessarily a fair opportunity of leading such evidence must be available to both parties. This,,,,,,

would in turn entail laying of a foundation for the case in the pleadings. If the plea is not put forward, such an opportunity is denied, quite apart from",,,,,,

the principle that no amount of evidence can be looked into unless such a plea is raised. (See Siddik Mahomed Shah v. Saran[AIR 1930 PC 57 (1)],,,,,,

and Bondar Singh v. Nihal Singh [(2003) 4 SCC 161] .,,,,,,

In the case of J.K. Iron and Steel Co. Ltd. v. Iron and Steel Mazdoor Union [(1955) 2 SCR 1315 : AIR 1956 SC 231] the Court noted that even,,,,,,

though Industrial Tribunals are not bound by all technicalities of civil courts: (SCR p. 1323),,,,,,

They must nevertheless follow the same general pattern. Now the only point of requiring pleadings and issues is to ascertain the real dispute between,,,,,,

the parties, to narrow the area of conflict and to see just where the two sides differ. It is not open to the Tribunals to fly off at a tangent and,",,,,,,

disregarding the pleadings, to reach any conclusions that they think are just and proper.â€​",,,,,,

(Emphasis supplied),,,,,,

Even if the management witness has admitted that no seniority list as per Rule 77 is produced, it will not improve the case of workmen for the simple",,,,,,

reason that the burden to show that aforesaid principle was violated, was on the shoulders of workmen. Had that burden was discharged, onus could",,,,,,

have been shifted on the shoulders of management. In absence of discharging that burden, the violation of Section 25-G and 25-H is not established",,,,,,

and hence finding of Tribunal in this regard needs interference.,,,,,,

In view of aforesaid analysis, the award of the tribunal to the extent relief of reinstatement with fifty percent backwages was granted, cannot be",,,,,,

upheld. The award is set aside with the direction that the workmen shall be entitled to get the benefit of compensation. This court after,,,,,,

considering the judgment of Supreme Court in Bhurumal, Tapas Kumar Paul (supra) and a recent judgment in W.P.No.14670/05 ( Asst. General",,,,,,

Manager Vs. Jagjivan Lal Patel), directed to grant Rs.3,00,000/(Rs.Three lacs) as compensation to the workmen.",,,,,,

In the case of Bhurumal (supra), the Apex Court awarded Rs.3,00,000/- as compensation to a workman who had rendered two years of service",,,,,,

whereas in the present case the duration of services rendered by the respondents are of a much longer period which is evident from the chart,,,,,,

reproduced in para 3 of this order. Considering the aforesaid, I deem it proper to direct the petitioner/management to pay Rs.4,00,000/- (Rupees",,,,,,

Four Lacs Only) to each of the respondent/workman within 60 days from the date of communication of this order. The impugned award is quashed,,,,,,

and modified to the extent indicated above. In lieu of reinstatement and b ackwages, now the each workman shall get Rs.4,00,000/- as",,,,,,

compensation.,,,,,,

Petitions are partly allowed. No cost.,,,,,,