Manager
(Now Regional Director) R.B.I. Vs. Gopinath Sharma & Anr [2006] Insc 414 (17 July 2006)
Dr.
Ar. Lakshmanan & Lokeshwar Singh Panta Dr. Ar. Lakshmanan, J.
The
appellant, The Manager (Now Regional Director), Reserve Bank of India, Mall
Road, Kanpur, aggrieved against the final judgment and order dated 4.9.2003 of
the High Court of Judicature at Allahabd in Civil Misc. Writ Petition No. 35290
of 1996, has filed this appeal. The High Court allowed the writ petition filed
by the first respondent herein and set aside the award of the Industrial Tribunal/Labour Court and ordered reinstatement on
similar post with back wages.
BACKGROUND
FACTS:
Respondent
No.1 was advised that he has been wait listed for daily wage casual employment
in the Bank at Lucknow office of the Bank. Respondent No.1
applied for consideration of his day-to-day appointment which request was
acceded to. In June, 1975, respondent No.1 acquired qualification of High
School but did not inform the Bank about the same. Therefore, his name was
included in the fresh list from 1.7.1975 to 30.6.1976 and was allowed to work
during the aforesaid period. The name of respondent No.1 was not included in
the fresh list from 1.7.1976 to 30.7.1977. He made representation for inclusion
of his name in the fresh list from 1976-1977. However, his representation was
turned down by the Bank. Respondent No.1 again started making representations
for taking him back on the basis of the judgment of this Court in H.D. Singh
vs. Reserve Bank of India, AIR 1986 SC 132 = 1985(4) SCC 201
and thereafter raised an industrial dispute before the Assistant Labour
Commissioner (Central) Kanpur.
The
Central Government referred the matter for adjudication to the Labour
Court/Industrial Tribunal, Kanpur as
under:- "Whether the action of management of RBI, Kanpur in striking off the name of Gopi Nath
Sharma from the list of approved peon-cum-Farash is justified? If not, to what
relief the concerned workman is entitled?" On 30.7.1996, an award was
passed by the Tribunal rejecting the claim of respondent No.1 on the ground of
delay and laches and also on merits holding that since as per evidence adduced
before Tribunal, he did not complete the service of 240 days in the Bank, he is
not entitled to the benefit of Section 25F of the Industrial Disputes Act, 1947
(hereinafter referred to as "the I.D. Act") or the benefit of the
judgment of this Court in H.D. Singh vs. Reserve Bank of India(supra).
Aggrieved
by the rejection, respondent No.1 filed C.M.W.P.No. 35290 of 1996 before the High
Court on 4.11.1996. On 4.9.2003, the High Court delivered the judgment allowing
the writ petition ordering reinstatement of respondent No.1 with back wages @
10% from 1976 to 1989 and @ 50% from 1989 till 4.9.2003 (the date of judgment).
Aggrieved
by the above judgment, the appellant filed the present appeal.
QUESTIONS
OF LAW
The
questions of law that arise for consideration before us are as under:
-
As to whether
the High Court in a petition under Art. 226 of the Constitution of India,
assailing the correctness of the judgment of the Labour Tribunal on a dispute
arising under the Industrial Disputes Act, was justified in examining the
policy of the R.B.I. on a touchstone of Art. 14 of the Constitution of India?
-
Whether the High
Court, in proceedings under Art. 226, can interfere with the findings of the Central Government Industrial
Tribunal-cum-Labour Court on factual issues in the absence of a challenge on the ground of
perversity and can award relief on a ground not raised before Tribunal?
-
Whether a person
can be ordered reinstatement even when he was engaged on day-to-day basis and
it is not established that he was working on regular post and without
establishing any right to hold any post particularly when respondent No.1 had
worked only for 58 days? We heard Mr. Mahendra Anand, learned senior counsel,
assisted by Mr. H.S. Parihar, learned counsel, appearing for the appellant and
Mr. Pramod Swarup, learned counsel appearing for respondent No.1.
Learned
senior counsel appearing for the appellant drew our attention to the award
passed by the Tribunal. The Tribunal held that the reference was highly belated
as the name of the concerned workman was expunged in 1976 itself. The Tribunal
also relied on the judgment in the case of Balwant Singh vs. Labour Court, Bhatinda 1996 Labour Industrial
Cases 45 wherein five years' old reference was held to be belated by the Court
and in the absence of sufficient explanation, relief of reinstatement was
denied.
Relying
upon this authority, the Tribunal held that the concerned workman would not be
entitled for any relief. On merits, the Tribunal observed as under:
"On
merits too, the case of the concerned workman is not proved. The concerned
workman has filed his affidavit. He was cross examined, whereas the management
has given the evidence of Kanhaiya Lal Prasad MW.1 who had stated that the
concerned workman had not completed 240 days in any calendar year. He has not
been cross- examined. Thus, this evidence is unchallenged.
Consequently,
relying upon his evidence, it is held that the concerned workman has not
completed 240 days in a calendar year. Hence Section 25 F is not
attracted." As stated above, the respondent herein invoked the
jurisdiction of the High Court under Art. 226 of the Constitution of India by
filing a writ petition with a prayer to quash the order dated 30.7.1996 passed
by the Tribunal and the verbal order dated 29.7.1976 passed by respondent No.2
in the writ petition for deletion of the name of the petitioner (respondent
No.1 herein) from the list of peon- cum-Farash of the Reserve Bank of India. A
further direction in the nature of mandamus commanding the Presiding Officer
(respondent No.2 in the writ petition) to include the name of respondent No.1
herein in the list of peon-cum-Farash with retrospective effect from 29.7.1976
with all the consequential benefits was sought for. The writ petition was
resisted by the Reserve Bank of India by filing a detailed counter affidavit in the High Court.
The
High Court firstly took up the preliminary objection for consideration which
was to the effect that reference was barred by time as it has been made after
about 13 years and that the respondent was wait listed for the post of
Peon-cum-Farash in 1973. As far as the question of validity of reference is concerned,
the High Court held that the Tribunal cannot go into the validity of the
reference and that the employer can challenge the reference order on the ground
of delay and since the reference order was not challenged by the Bank, the Labour
Court was obliged to decide the matter and that the Labour Court was not
authorized to go into the validity including delay. The High Court, as far as,
the question of validity of discontinuing the services of respondent No.1 due
to over- qualification was concerned, it has held that over qualification
cannot be a disqualification for peon-cum- Farash where maximum qualification
prescribed was 8th pass. The High Court further observed that such an approach
amounts to discouraging acquisition of education on the one hand and that such
an approach is clearly arbitrary, discriminatory and not in national interest.
As
regards the statutory requirement of 240 days in a calendar year, the High
Court has observed that even if the stand taken by the Bank that the respondent
had not completed 240 days in a calendar year is taken to be correct, it will
not make much difference and that by virtue of the reference, the Labour Court
was required to judge as to whether the action of the Bank in striking off the
name of respondent No.1 from the list of approved employees was justified or
not.
According
to the High Court, acquiring higher qualification is not misconduct and hence,
dismissal of workman on this ground is wrongful dismissal. The High Court
further observed that some of the juniors of respondent No.1 were retained on
the ground that they had not acquired higher qualification and that the Bank
specifically did not deny this fact and in such a situation if the removal of
respondent No.1 is taken to be retrenchment, he would be entitled to relief
under Section 25 G of the I.D. Act. It was, therefore, held that the
employer-Bank wrongfully terminated the services of respondent No.1 by not
including his name in the list prepared after June, 1976 and that the order of
the Labour Court deciding the reference against the respondent-workman is
illegal and liable to be set aside. As far as, back wages is concerned, the
High Court held that the workman is entitled to get nominal wages of 10% and
thereafter 50% respectively.
In the
result, the High Court allowed the writ petition filed by the respondent herein
and set aside the order of the Tribunal and the action of the management of the
Bank in striking out the name of respondent No.1 from the list of approved
peon-cum-Farash after June, 1976 and further directed that the respondent must
be reinstated and appointed to the similar post.
Learned
senior counsel appearing for the appellant submitted that the High Court's
judgment is perverse and that the High Court cannot interfere with the findings
of the Tribunal on factual issues in the absence of a challenge on the ground
of perversity and cannot award any relief on a ground nor raised before the
Tribunal.
Learned
senior counsel further submitted that the respondent a daily wage worker, was
engaged on day to- day basis and that it was not established that he was
working on a regular basis and without establishing any right to hold any post.
Learned senior counsel also submitted that the High Court erred in examining
the legality of the policy and giving relief solely on the ground that it found
the policy and actions of the appellant contrary to Articles 14 & 16 of the
Constitution. In this context, it was submitted that the High Court has taken
into consideration an entirely new aspect which was neither pleaded by the
petitioner (respondent No.1 herein) in the writ petition before the High Court
nor was claimed in the claim statement filed before the Tribunal, without
giving any opportunity to the appellant to effectively reply to the same i.e.,
the aspect of alleged arbitrariness and discrimination in not considering the
over qualified person for further day to-day engagement. He further submitted
that the High Court erred in not taking into account the categoric finding that
respondent No.1 had not completed 240 days of service in the Bank and holding
that this will not make much difference.
Per
contra, Mr. Pramod Swarup, learned counsel appearing for respondent No.1,
submitted that acquiring higher qualification is not a misconduct and hence
dismissal of workman on this ground is wrongful dismissal and that the High
Court considered the contention of respondent No.1 that some of his juniors
were retained on the ground that they had not acquired higher qualification,
and the Bank did not deny this fact and that the employer- Bank wrongfully
terminated the services of respondent No.1 by not including his name in the
list prepared after June, 1976 and that the order of the Labour Court/Tribunal
deciding the reference against the workman is illegal and liable to be set
aside. Learned counsel further submitted that respondent No.1 worked for more
than 240 days and that the Management did not produce the attendance Register
for the period involved and only produced some of the documents by which it
could show that respondent No.1 had not worked for more than 240 days. Without
the attendance register and other material which was withheld by the Bank, the
respondent was handicapped in cross examining the management witness. He denied
that the respondent has worked only for 58 days. In conclusion, he submitted
that this Court cannot interfere with the well considered judgment of the High
Court which has rightly set aside the order of the Tribunal and ordered
reinstatement with back wages.
We
have carefully considered the rival submissions made by learned counsel
appearing for the respective parties. Learned senior counsel appearing for the
appellant, in support of his contention, cited many decisions. We shall advert
to the decisions cited at a later stage. We have also carefully perused the
relevant records and the orders impugned in this appeal.
In our
opinion, the High Court has committed a patent error in allowing the writ
petition filed by the respondent herein who is a daily wage worker when it was
not established that he was working on regular basis. The High Court, in our
opinion, is not justified in directing that respondent No.1 must be reinstated
and appointed to similar post. The High Court has also clearly erred in
examining the legality of the policy and giving relief solely on the ground
that it found the policy and actions of the appellant contrary to Arts. 14
& 16 of the constitution. It is pertinent to notice that the High court has
taken into consideration an entirely new aspect which was neither pleaded by
the petitioner in the writ petition before the High Court nor was claimed in
the claim statement filed before the Tribunal without giving an opportunity to
the parties to effectively reply to the same. Likewise, the High Court also
failed to consider that the system of engagement of 'Ticca Mazdoors' has since
been abolished in November, 1993, while this fact was brought on record of High
Court in the counter affidavit filed on behalf of the Bank.
It is
a matter of documentary proof that the respondent has worked only for 58 days
as could be seen from the statement filed by the Bank. This document was
annexed to the reply filed on behalf of the Bank before the Tribunal. In
paragraph 9 of the reply, the Bank stated as follows:
"As
regards para 9, Shri Vidya Dutta and others mentioned herein were either non-
matriculates or had completed 240 working days in the preceding 12 calendar
months at the relevant time. As such, Shri Sharma's case is not comparable to
those cases and there is no discrimination in not including his name in the
fresh waiting list." The respondent has worked only for 58 days. There is
no cross-examination on this aspect. It is also not out of place herein to
mention that respondent No.1 was discharged in July, 1976 and the Central
Government referred the matter for adjudication on 25.1.1989 nearly after 13
years.
Employers
in relation to the Management of Their Workman represented by Rashtriya
Colliery Mazdoor Sangh, JT 2006 (1) SC 411 :
This
case, in turn, refers to the judgments in District Manager, Karnataka, JT
2003(3) SC 436. This Court held that even though there is no limitation
prescribed for reference of disputes to an industrial tribunal, even so it is
only reasonable that the disputes should be referred to as soon as possible
after they have arisen and after conciliation proceedings have failed
particularly so when disputes relate to discharge of workmen. This Court has
held that a delay of four years in raising the dispute after even re-employment
of most of the old workmen was held to be fatal. In Nedungadi Bank Ltd's case
(supra) this Court held a delay of seven years to be fatal and disentitled the
workmen to any relief.
In our
opinion, a dispute which is stale could not be a subject matter of reference.
In our
view, respondent No.1 was not appointed to any regular post but was only
engaged on the basis of the need of the work on day to-day basis and he has no
right to the post and that his dis-engagement cannot be treated as arbitrary.
The High Court, in our view, has totally misdirected itself in holding that
non-consideration of the name of respondent No.1 on acquiring higher
qualification is not misconduct, hence, dismissal of the workman on this ground
is wrongful within the meaning of Item 3, Schedule II to the Industrial
Disputes Act, 1947 without giving any reason as to how non-inclusion of name
for day to-day appointment amounts to wrongful dismissal. The High Court
completely erred in relying on Section 25 G of the I.D. Act while not holding
that the workman has been retrenched within the meaning of Section 25F and thus
misdirected itself about the applicability of provisions of Section 25G of the
I.D. Act even if it does not involve retrenchment. The High Court also failed
to consider that the inclusion of the name in the waiting list for appointment
as 'Ticca Mazdoor' on day to-day basis does not confer any right for regular
appointment or to hold any post. As already noticed, no relief can now be given
to respondent No.1 especially when the system of keeping waiting list for Ticca
Mazdoor has been dispensed with since 23.7.1993 and at present the Bank does
not maintain any list. The High Court, therefore, wrongly proceeded on the
basis as if the daily wage appointment is for a regular post on which a person
can be reinstated. The High Court has also committed an error in giving the
relief of reinstatement with back wages without considering whether the
concerned workman was gainfully employed from 1976 till date of judgment, there
being no evidence on record. Likewise, the High Court ought to have seen that
respondent No.1 was not entitled to any back wages on the basis of the well
settled principle "No work No Pay". In our opinion, the High Court
has completely erred in ordering an appointment to a similar post on which a
person just before the name of respondent No.1 is at present working without
considering the fact that such person must be senior to the workman concerned
and was already promoted to the next cadre in Class III.
Mr. Pramod
Swarup, learned counsel appearing for the respondent argued that along with
respondent No.1, Vidya Dutta, Ram Roop Pasi, Lakhan Lal Srivastava, Aquil
Ahmad, Mazafar alam, Chandra Bhan and Mahesh Kumar Shukla were also appointed
by the Bank in Class IV Staff and the former four persons are still working as
Coin Note Examiners drawing about Rs.2000/- per month and the latter three
persons have been absorbed as labour and peon drawing about Rs.1700/- per
month. The respondent has stated that besides financial loss, his promotions
have also been adversely affected by the discriminate and illegal termination
of his services/striking his name from the approved list of peon-cum-Farash w.e.f.
July, 1976. In paragraph 9 of the reply, the Bank has denied the said statement
as could be seen from paragraph supra.
This
categorical denial has not been considered by the High Court and the High Court
does not even refer to this aspect. We have already noticed that the respondent
has worked only for 58 days and that the monthly chart filed and annexed to the
reply affidavit clearly shows that the respondent has actually worked for 58
days only.
Regional
Manager, S.B.I. vs. Rakesh Kumar Tewari, JT 2006(1) SC 252 (Ruma Pal & Dr.
AR. Lakshmanan,JJ.) :
In the
above case, there was no pleading that there is violation of Section 25G of the
I.D. Act. Respondent No.1 raised no allegation of violation of Section 25G of
the I.D. Act in his statement of claim before the Tribunal. This judgment also
refers to the judgment in Regional Manager, State Bank of India vs. Raja Ram, (2004) 8 SCC 164,
where this Court held:
'before
an action can be termed as an unfair labour practice it would be necessary for
the Labour Court to come to a conclusion that the badlis, casuals and temporary
workmen had been continued for years as badlis, casuals or temporary workmen,
with the object of depriving them of the status and privileges of permanent
workmen. To this has been added the judicial gloss that artificial breaks in
the service of such workmen would not allow the employer to avoid a charge of
unfair labour practice. However, it is the continuity of service of workmen
over a period of years which is frowned upon. Besides, it needs to be
emphasized that for the practice to amount to unfair labour practice it must be
found that the workmen had been retained on a casual or temporary basis with
the object of depriving the workman of the status and privileges of a permanent
workman. There is no such finding in this case. Therefore, Item 10 in List I of
the Fifth Schedule to the Act cannot be said to apply at all to the
respondent's case and the Labour Court erred in coming to the conclusion that
the respondent was in the circumstances, likely to acquire the status of a
permanent employee." The Haryana State Agricultural Marketing Board vs. Subhash
Chand & Anr., JT 2006(3) SC 393 :
This
case relates to the disengagement of casual employees. The question arose was
as to whether the provisions of Section 25G are to be complied with. In this
case, the respondent was appointed on contractual basis by the appellant during
paddy seasons on consolidated wages. Upon termination of the services, the
respondent raised an industrial dispute. The appellant took the stand that the
respondent was employed only for 208 days during the previous year whereas the
respondent contended that he had worked for 356 days. The Labour Court held that the termination was violative
of Section 25G of the I.D. Act and hence an unfair labour practice.
The
appellant filed a writ petition against the decision of the Labour Court which was dismissed by the High
Court.
Setting
aside the decision of the Labour Court,
the High Court held Fifth Schedule to the I.D. Act inapplicable and hence
dispensing with the engagement of the respondent cannot be said to be
unwarranted in law. & Ors., JT 2006(4) SC 420 :
In
paragraphs 34 & 35 of the above judgment, this Court held as under:
-
"While
answering an objection to the locus standi of the writ petitioners in
challenging the repeated issue of an ordinance by the Governor of Bihar, the
exalted position of rule of law in the scheme of things was emphasized, Chief
Justice Bhagwati speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa
& Ors. v. State of Bihar & Ors. stated:
"The
rule of law constitutes the core of our Constitution of India and it is the
essence of the rule of law that the exercise of the power by the State whether
it be the Legislature or the Executive or any other authority should be within
the constitutional limitations and if any practice is adopted by the Executive
which is in flagrant and systemic violation of its constitutional limitations,
petitioner no. 1 as a member of the public would have sufficient interest to
challenge such practice by filing a writ petition and it would be the
constitutional duty of this Court to entertain the writ petition and adjudicate
upon the validity of such practice." Thus, it is clear that adherence to
the rule of equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our Constitution, a court
would certainly be disabled from passing an order upholding a violation of
Article 14 or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the Constitution.
Therefore,
consistent with the scheme for public employment, this Court while laying down
the law, has necessarily to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among qualified persons, the same
would not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the contract, if it
were an engagement or appointment on daily wages or casual basis, the same
would come to an end when it is discontinued. Similarly a temporary employee
could not claim to be made permanent on the expiry of his term of appointment.
It is also to be clarified that merely because a temporary employee or a casual
wage worker is continued for a time beyond the term of his appointment, he
would not be entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original appointment was not
made by following a due process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular recruitment at the
instance of temporary employees whose period of employment has come to an end
or of ad hoc employees who by the very nature of their appointment do not
acquire any right. High Courts acting under Article 226 of the Constitution of
India should not ordinarily issue directions for absorption, regularization or
permanent continuance unless the recruitment itself was made regularly and in
terms of the constitutional scheme. Merely because an employee had continued
under cover of an order of court, which we have described as 'litigious
employment' in the earlier part of the judgment, he would not be entitled to
any right to be absorbed or made permanent in the service. In fact, in such
cases, the High Court may not be justified in issuing interim directions,
since, after all, if ultimately the employee approaching it is found entitled
to relief it may be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an interim direction to
continue his employment would hold up the regular procedure for selection or
impose on the state the burden of paying an employee who is really not
required. The courts must be careful in ensuring that they do not interfere
unduly with the economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to facilitate the
bypassing of constitutional and statutory mandates.
-
The concept of
'equal pay for equal work' is different from the concept of conferring
permanency on those who have been appointed on ad hoc basis, temporary basis or
based on no process of selection as envisaged by the rules. This court has in
various decisions applied the principle of equal pay for equal work and has
laid down the parameters for the application of that principle.
The
decisions are rested on the concept of equality enshrined in our Constitution
in the light of the Directive Principles in that behalf. But the acceptance of
that principle cannot lead to a position where the court could direct that
appointments made without following the due procedure established by law, be
deemed permanent or issue directions to treat them as permanent. Doing so would
be negation of the principle of equality of opportunity. The power to make an
order as is necessary for doing complete justice in any cause or matter pending
before this court, would not normally be used for giving the go-by to the
procedure established by law in the matter of public employment. Take the
situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad
decision, the Government had issued repeated directions and mandatory orders
that no temporary or ad hoc employment or engagement be given. Some of the
authorities and departments had ignored those directions or defied those
directions and had continued to give employment specifically interdicted by the
orders issued by the Executive.
Some
of the appointing officers have even been punished for their defiance. It would
not be just or proper to pass an order in exercise of jurisdiction under
Article 226 or 32 of the Constitution or in exercise of power under Article 142
of the Constitution of India permitting those persons engaged, to be absorbed
or to be made permanent based on their appointments or engagements.
Complete
justice would be justice according to law and though it would be open to this
court to mould the relief, this court would not grant a relief which would
amount to perpetuating an illegality." Manager, Reserve Bank of India, Bangalore vs. S. Mani & Ors. , (2005) 5 SCC 100:
In
paragraphs 30 & 31 of the above judgment, this Court held as under:
-
"In Range
Forest Officer v. S.T.Hadimani ((2002) 3 SCC 25) it was stated:
-
"In our
opinion the Tribunal was not right in placing the onus on the management
without first determining on the basis of cogent evidence that the respondent
had worked for more than 240 days in the year preceding his termination. It was
the case of the claimant that he had so worked but this claim was denied by the
appellant. It was then for the claimant to lead evidence to show that he had in
fact worked for 240 days in the year preceding his termination. Filing of an
affidavit is only his own statement in his favour and that cannot be regarded
as sufficient evidence for any court or tribunal to come to the conclusion that
a workman had, in fact, worked for 240 days in a year. No proof or receipt of
salary or wages for 240 days or order or record of appointment or engagement
for this period was produced by the workman. On this ground alone, the award is
liable to be set aside."
-
In Siri Niwas,
(2002) 8 SCC 400, this Court held :
-
"The
provisions of the Evidence Act, 1872 per se are not applicable in an industrial
adjudication. The general principles of it are, however, applicable. It is also
imperative for the Industrial Tribunal to see that the principles of natural
justice are complied with. The burden of proof was on the respondent workman
herein to show that he had worked for 240 days in the preceding twelve months
prior to his alleged retrenchment. In terms of section 25-F of the Industrial
Disputes Act, 1947, an order retrenching a workman would not be effective
unless the conditions precedent therefore are satisfied. Section 25-F
postulates the following conditions to be fulfilled by an employer for
effecting a valid retrenchment:
-
one month's
notice in writing indicating the reasons for retrenchment or wages in lieu
thereof;
-
payment of
compensation equivalent to 15 days average pay for every completed year of
continuous service or any part thereof in excess of six months." It was
further observed:
-
"As noticed
hereinbefore, the burden of proof was on the workman. From the award it does
not appear that the workman adduced any evidence whatsoever in support of his
contention that he complied with the requirements of section 25-B of the
Industrial Disputes Act. Apart from examining himself in support of his
contention he did not produce or call for any document from the office of the
appellant herein including the muster rolls. It is improbable that a person
working in a local authority would not be in possession of any documentary
evidence to support his claim before the Tribunal. Apart from muster rolls he could
have shown the terms and conditions of his offer of appointment and the
remuneration received by him for working during the aforementioned period. He
did not even examine any other witness in support of his case." This
judgment was approved in the case of Secretary, This judgment also refers to
the H.D. Singh's case (supra).
This
Court held that H.D. Singh's case was rendered on its own facts.
In
M.G. Datania vs. Reserve Bank of India, (2004) 10 SCC 451, while the L.P.A. was
pending in the High Court, a terms of settlement was arrived at on 23.7.1993
between the Management of the Bank and the Reserve Bank Workers' Federation.
The relevant portion is as under:
"Terms
of settlement
-
The existing
arrangement or practice of engaging persons on daily wages purely on temporary
and ad hoc basis in Class IV in various cadres shall be discontinued forthwith.
-
-
-
." This
Court in a recent judgment in the case of Zakir Hussain, (Ruma Pal & Dr.
AR. Lakshmanan,JJ.), (2005) 7 SCC 447, this Court held as under:
"The
respondent was a temporary employee of the appellant Corporation on probation
for a period of two years. His services were terminated by an order of
termination simpliciter. The order was innocuous and without any stigma or evil
consequences visiting him. Therefore, there was no requirement under the law to
hold any enquiry before terminating the services. The courts below have also
erred in granting back wages along with reinstatement. Even otherwise, the
respondent has not led any evidence before the trial Court except his own ipse dixit
to show that his services were terminated on the ground of any alleged
misconduct. Therefore, it was not obligatory on the part of the Corporation to
hold an enquiry before terminating the services." For the aforesaid
reasons, we are of the opinion that respondent No.1 has worked for 58 days on
casual basis, therefore, he is not entitled for any relief in his belated
claim.
The
High Court, on erroneous view of the facts and circumstances of the case,
allowed the writ petition filed by the respondent herein without taking into
account the categoric finding of fact that respondent No.1 had not completed
240 days of service in the Bank and held that this will not make much
difference. In our opinion, such a casual approach is not warranted in the
facts and circumstances of the case. We, therefore, have no hesitation in
setting aside the order dated 4.9.2003 passed by the High Court in C.M.W.P. No.
35290 of 1996 and affirm the order passed by the Tribunal.
In the
result, the appeal succeeds. However, there shall be no order as to costs.
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