Regional
Manager, Sbi. Vs. Mahatma Mishra [2006] Insc 736 (1 November 2006)
S.B.
Sinha & Markandey Katju
[Arising
out of S.L.P. (Civil) No. 8064 of 2006] S.B. SINHA, J :
Leave
granted.
Respondent
was appointed on a temporary basis in the year 1982 for a period of 88 days.
His services were terminated. An industrial dispute was raised by him which was
referred to for adjudication before the Presiding Officer, Central Government
Industrial Tribunal cum Labour Court, Kanpur by the State of Uttar Pradesh in the following terms:
"Whether
the action of the management of State Bank of India, Region III, the Mall Kanpur,
in relation to their Jhanstongang Branch, Allahabad in terminating the services
of Shri Mahatma Mishra, Ex-messenger with effect from 4.9.1982 and not
considering him for further employment as provided under section 25-H of the
Industrial Disputes Act, is justified. If not to what relief is the workman
concerned entitled?" Before the Industrial Court, the respondent inter alia
relied upon a purported circular issued by the Personnel Department of the
Appellant Bank wherein direction was issued that temporary appointments were
to be made for a maximum period of 90 days in the case of sub staff and 180
days in case of temporary staff upon obtaining suitable number of names from
the concerned employment exchange(s). Engagement of casual labour was directed
to be resorted to for work of casual nature only and such casual employees were
not to be engaged as members of subordinate staff.
Inter alia
on the premise that the respondent was engaged as temporary messenger which,
according to the Labour Court, was not of a casual nature but of permanent one
and, furthermore, having regard to the fact that he was appointed on 3.5.1982
and his services were terminated on 3.9.1982, it was opined that unfair labour
practice had been resorted to by the management. The Labour Court further noticed that one Basudeo
was appointed after termination of the services of the respondent. The Labour
Court inter alia held that as no written notice was served on the respondent
before terminating his services, the same was illegal and upon referring to the
bipartite settlement by and between the Bank and the workmen, it was held:
"In
the instant case before termination of Mahatma Misra two other persons worked
as temporary messenger and after his termination several others were also
appointed to work as temporary messenger. Thus, there was vacancy of permanent
nature and had the workman allowed to be continued after 88 days he could have
acquired the status of permanent messenger and it was on that count that his
services were terminated two days before which was an unfair (sic) on the part
of the management bank.
Thus,
in view of the discussion made above and the law discussed, I hold that the
action of the management bank of the State Bank of India in terminating the
service of the workman concerned w.e.f. 4.9.1983 which in reality and
admittedly 3.9.1982 and not considering him for further employment as provided
under Section 25H of the I.D. Act is illegal. The effect is that he will be
reinstated in service with full back wages." A writ petition was filed
before the High Court. A learned Single Judge although opined that the
respondent was not entitled to be granted a permanent status after having
worked only for a period of 88 days but in purported interest of justice having
regard to the fact that he had been paid idle wages for a period of 20 years,
it was directed:
"Thus,
the sum and substance of the matter is that it is not the absolute consequence
of reinstatement that in every case, full back wages are to be granted, but
that the issue of grant of back wages must be gone into and the grant, if any,
of back wages must be given proper consideration which shall of course vary
from case to case.
In
view of the above discussion, the writ petition is partly allowed. I modify the
award of the Labour
Court to the extent
that no further back wages shall be paid to the respondent workman.
However,
his reinstatement shall continue." The approach of the Labour Court as also the High Court cannot be
appreciated. The respondent was appointed only for 88 days. The requirements of
Section 6-N of the U.P. Industrial Disputes Act was, thus, not required to be
complied with. The Labour
Court although
proceeded on the basis that Section 25-H of the Industrial Disputes Act would
be attracted, no reason has been assigned in support thereof. If the
appointment of the respondent as a casual worker was for a fixed period and the
termination of his services was in terms of contract of employment, Section
25-H of the Industrial Disputes Act would not have any application. In a case
of this nature, Section 25-H of the Industrial Disputes Act is not attracted.
It is not in dispute that the appointment of the respondent was made in
violation of circular letter issued by the Appellant Bank. Requirements of law
as envisaged under Employment Exchanges (Compulsory Notification of Vacancies)
Act, 1959 had also not been complied with.
The
appellant is a State within the meaning of Article 12 of the Constitution of
India. A constitutional duty was, thus, enjoined to it to comply with the
doctrine of equality as enshrined under Articles 14 and 16 thereof.
The Labour Court committed a serious illegality in
proceeding on the basis that retrenchment was illegal. It was not so. As was
rightly observed by the High Court, the respondent was not entitled to a
permanent status. If he was not entitled to conferment of any permanent status
having worked only for 88 days and that too in the year 1982, we fail to
understand as to how he was entitled to be reinstated in service and that too
with full backwages. The High Court although noticed the recent decisions of
this Court in relation to grant of backwages but it failed to consider a vital
aspect of the matter, viz., reinstatement in service can be directed provided
the termination is illegal. No finding of fact has been arrived at that the
termination of the service of the respondent was illegal. The question of directing
an award reinstating him in service did not and could not arise.
The
question came up for consideration before a Division Bench of this Court in
Regional Manager, State Bank of India v. Raja Ram [(2004) 8 SCC 164] wherein it
was held:
"It
appears that the High Court as well as the Labour Court had proceeded on a fundamental misconception as to the
nature of the right available to the respondent. The respondent was employed
for a fixed period of 91 days. Assuming that such an employee could be called a
temporary employee for the purposes of the Sastry Award, the requirement as to
service of notice of 14 days, would, in cases where an employee has been
appointed for a fixed tenure, amount to an embargo on the employer terminating
the services prior to the expiry of such period without giving a 14 days'
notice. The non-giving of the notice would not mean that the employee would
thereby continue to serve beyond the period for which he was originally
appointed. The exception to this principle is when an employee is appointed
temporarily for successive fixed tenures with artificial breaks in between so
as to deny the employee the right to claim permanent appointment. This action
would be an unfair labour practice within the meaning of the phrase in Section
2(ra) of the Act. Section 2(ra) says that unfair labour practice means any of
the practices specified in the Fifth Schedule to the Act. The Fifth Schedule to
the Act contains a list of unfair labour practices which have been classified
under two heads, namely:
(I) on
the part of the employer and trade unions of employers, and
(II) on
the part of the workmen and trade unions of workmen. The principle that we have
referred to earlier finds place in Item 10 of Part I under which "to
employ workmen as 'badlis', casuals or temporaries and to continue them as such
for years, with the object of depriving them of the status and privileges of
permanent workmen" is an unfair labour practice. In other words, 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 emphasised that for the practice to amount to unfair labour
practice it must be found that the workman 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. Furthermore, both the High Court and the Labour Court appeared to have proceeded on the
basis that the appointment of Ram Kumar after the employment of the respondent
ceased, also on casual basis, was an unfair labour practice. If this view is to
be upheld the respondent's appointment in place of Sooraj would equally be an
unfair labour practice and therefore unsustainable." Unfair labour
practice is not to be readily inferred. Before a conclusion in that behalf is
drawn, the conditions precedent therefor must be satisfied. The Labour Court failed to show as to how the
appellant can be said to have taken recourse to unfair labour practice. It was
not a case where the respondent was being appointed consistently for a number
of years with artificial breaks. It was also not a case where the purport and
object for such appointment was to violate the provisions of the Industrial
Disputes Act.
The
question again came up for consideration before this Court in Regional Manager,
SBI v. Rakesh Kumar Tewari [(2006) 1 SCC 530] wherein Raja Ram (supra) was
followed.
Section
11-A of the Industrial Disputes Act confers a discretionary power in the
Industrial Tribunal or the Labour Court, as the case may be.
Although
in a given case, the Industrial Tribunal or the Labour Court may grant appropriate relief, its discretion should be
exercised judiciously. An employee after termination of his services cannot get
a benefit to which he was not entitled to if he remained in service. It is one
thing to say that services of a workman was terminated in violation of
mandatory provisions of law but it is another thing to say that relief of
reinstatement in service with full backwages would be granted automatically.
Even in a case where service of an employee is terminated in violation of
Section 25-F of the Industrial Disputes Act, he would not be entitled to grant
of a permanent status. Regularisation does not mean permanence. [See Secretary,
State of Karnataka and Others v. Umadevi (3) and
Others, (2006) 4 SCC 1] This aspect of the matter has been considered by this
Court in Principal, Mehar Chand Polytechnic & Anr. v. Anu Lumba & Ors.
[2006 (7) SCALE 648] wherein it was observed:
"In
Umadevi (supra), it was stated :
"There
have been decisions which have taken the cue from the Dharwad case and given
directions for regularization, absorption or making permanent, employees
engaged or appointed without following the due process or the rules for
appointment. The philosophy behind this approach is seen set out in the recent
decision in The Workmen v. Bhurkunda Colliery of Central Coalfields Ltd.,
though the legality or validity of such an approach has not been independently
examined. But on a survey of authorities, the predominant view is seen to be
that such appointments did not confer any right on the appointees and that the
Court cannot direct their absorption or regularization or re-engagement or
making them permanent" See also State of U.P. v. Neeraj Awasthi and Others
[(2006) 1 SCC 667].
Yet
again in National Fertilizers Ltd. & Ors. v. Somvir Singh [(2006) 6 SCALE
101], it was held:
"Regularization,
furthermore, is not a mode of appointment. If appointment is made without
following the Rules, the same being a nullity the question of confirmation of
an employee upon the expiry of the purported period of probation would not
arise" It was further opined :
"It
is true that the Respondents had been working for a long time. It may also be
true that they had not been paid wages on a regular scale of pay. But, they did
not hold any post. They were, therefore, not entitled to be paid salary on a
regular scale of pay. Furthermore, only because the Respondents have worked for
some time, the same by itself would not be a ground for directing
regularization of their services in view of the decision of this Court in Uma Devi
(supra)."" Furthermore, the High Court, in our opinion, committed a
serious error in passing an order only on the basis of sympathy although it was
held that the respondent was not entitled to any relief.
In Maruti
Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC 638], it was observed :
"While
construing a statute, "sympathy" has no role to play. This Court
cannot interpret the provisions of the said Act ignoring the binding decisions
of the Constitution Bench of this Court only by way of sympathy to the workmen
concerned.
In A. Umarani
v. Registrar, Coop. Societies this Court rejected a similar contention upon
noticing the following judgments: (SCC pp. 131-32, paras 68-70)
"68.
In a case of this nature this Court should not even exercise its jurisdiction
under Article 142 of the Constitution of India on misplaced sympathy.
69. In
Teri Oat Estates (P) Ltd. v. U.T., Chandigarh18 it is stated: (SCC p. 144, paras
36-37)
'36.
We have no doubt in our mind that sympathy or sentiment by itself cannot be a
ground for passing an order in relation whereto the appellants miserably fail
to establish a legal right. It is further trite that despite an extraordinary
constitutional jurisdiction contained in Article 142 of the Constitution of
India, this Court ordinarily would not pass an order which would be in
contravention of a statutory provision.
37. As
early as in 1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd.
observed: (All ER p. 123 E) "We must be very careful not to allow our
sympathy with the infant plaintiff to affect our judgment. Sentiment is a
dangerous will o' the wisp to take as a guide in the search for legal principles."
70.
Yet again, recently in Ramakrishna Kamat v. State of Karnataka this Court
rejected a similar plea for regularisation of services stating: (SCC pp.
377-78, para 7) 'We repeatedly asked the learned counsel for the appellants on
what basis or foundation in law the appellants made their claim for regularisation
and under what rules their recruitment was made so as to govern their service
conditions. They were not in a position to answer except saying that the
appellants have been working for quite some time in various schools started
pursuant to resolutions passed by Zila Parishads in view of the government
orders and that their cases need to be considered sympathetically. It is clear
from the order of the learned Single Judge and looking to the very directions
given, a very sympathetic view was taken. We do not find it either just or
proper to show any further sympathy in the given facts and circumstances of the
case. While being sympathetic to the persons who come before the court the
courts cannot at the same time be unsympathetic to the large number of eligible
persons waiting for a long time in a long queue seeking employment.' "[See
also State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 549]
For the reasons aforementioned, we are of the opinion that the impugned
judgments cannot be sustained which are set aside accordingly.
The
respondent, however, has obtained idle wages for a long time. Although he was
not entitled thereto, keeping in view the fact and circumstances of this case,
we do not direct refund of the said amount. The appeal is allowed.
No
costs.
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