Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
H.D. SINGH
Vs.
RESPONDENT:
RESERVE BANK OF INDIA & ORS.
DATE OF JUDGMENT10/09/1985
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1986 AIR 132 1985 SCR Supl. (2) 842
1985 SCC (4) 201 1985 SCALE (2)607
ACT:
Industrial Disputes Act 1947, sections 2 (oo), 25 F,
Schedule V, Item 10.
Reserve Bank of India - Employment of Tikka Mazdoor -
Persons helping examiner of coins and notes - Daily rated
workers - Name of worker struck off the rolls after passing
matriculation examination - Whether amounts to
’retrenchment’ - Confidential circular of Bank instructing
officers to give work on rotational basis - Whether an
’unfair labour practice’.
HEADNOTE:
The appellant was a tikka mazdoor-person who helps the
Examiners of Coins and notes in the Reserve Bank of India,
the 1st Respondent. He was selected in 1974 on daily wages
basis and he had to report to the bank regularly in the
morning to ascertain whether he could get work every-day. On
days when no work was given he had to wait till noon to be
told by the authorities concerned that no work was
available. Thus, he had work only for four days in 1974, and
one hundred and fifty four days in 1975, and one hundred and
five days in 1976. At the time he was selected for
employment, he was not a matriculate. He passed the
matriculate examination in 1975. His name was struck off the
list of Tikka Mazdoors as the confidential circular issued
by the bank indicated that persons who passed the
matriculation examination could not be retained in the list.
As the appellant was not given any work after July 1976
and as there were no written order terminating his service
and as attempts to get his grievances redressed by
correspondence having failed he moved for conciliation. The
Assistant Labour Commissioner though impressed with the
genuineness of the claim of the appellant, could not
persuade the bank. Thereupon, the Central Government
referred the dispute for adjudication to the Central
Government Industrial Tribunal.
The appellant in his claim statement before the
Tribunal, pleaded that he had presented himself for duty
daily but was not
843
offered jobs on the days when he reported for duty for
reasons best known to the bank, that he was employed for 4
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
days in 1974, 154 days in 1975 and 105 days in 1976, that he
was not told at the time when he accepted the job that his
name would be struck off from the rolls if he passed the
matriculate examination and that he had worked continuously
for 240 days if the Sundays and Holidays were taken into
account, and that the action of the bank in striking out his
name from the list amounted to retrenchment.
The claim of the appellant was resisted by the Bank
contending that the reference was had since the dispute was
not sponsored by any representative trade union, that
Section 2-A of the Industrial Disputes Act 1947 was not
attracted, and also that the dispute in question was not an
industrial dispute, that the appellant failed to inform the
bank that he had passed the matriculation examination after
getting selected and that he had not worked for 240 days in
any year.
The Tribunal held that the action of the Reserve Bank,
in not giving regular appointment to the appellant was legal
and proper and that his name could be struck off from the
list of approved Tikka Mazdoors in terms of a proper and
justifiable policy followed by the management of the Bank;
Allowing the appeal,
^
HELD: 1. Striking off the name of the appellant is
clearly termination of his service and the dispute squarely
comes within Section 2A of the Industrial Disputes Act,
1947. The Tribunal grossly erred in upholding the
preliminary objection raised by the Bank. [852 C]
2. Striking off the name of a workman from the rolls by
the employer amounts to ’termination of service’ and such
termination is ’retrenchment’ within the meaning of Sec.
2(oo) of the Industrial Disputes Act, 1947 if effected in
violation of the mandatory provision contained in Sec. 25-F
and in invalid. [850 F, 853 F-G]
Delhi Cloth & General Mills Ltd. v. Shambhu Nath
Mukherjee & Ors. [1978] 1 S.C.R. 591., State Bank of India
v. Shri N. Sundra Money, [1976] 3 S.C.R. 160., referred to.
In the instant case, the pleadings, documents and the
confidential circular indicate that the Bank was determined
to adopt methods to terminate the services of employees like
the
844
appellant. The appellant was not told that he would be
struck off the rolls if he passed matriculation. He was not
given any order in writing either refusing work or informing
him that his name would be struck off the rolls. The
appellant’s name had been struck off the list contrary to
the mandate contained in Section 25F. [850 E,G]
3. The 5th Schedule to the Industrial Disputes Act
contains a list of unfair labour practices as defined in
sec. 2(ra), and to employ workmen as ’badlis casual or
temporaries and to continue them as such for years, with the
object of depriving them of the statue and privileges of
permanent workmen’ is one of them as indicated in Item 10.
[852 F-G]
4. The Bank has deliberately indulged in unhealthy
labour practice by rotating employees like the appellant to
deny them benefits under the Industrial Law. It is
disturbing to find that the appellant was denied job because
he had become better qualified. [853 B-C]
In the instant case, the confidential circular directed
the officers that workmen like the appellant should not be
engaged continuously but should as far possible, be offered
work on rotation basis and the case that the appellant is a
’badli’ worker, have to be characterised as an unfair labour
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
practice.[852 H]
5. Industrial adjudication in bona fide claims have
been dragged on by employers for years by raising technical
and hyper technical pleas. It would always be desirable for
employers to meet the case of the employees squarely on
merits and get them adjudicated quickly. It is too late in
the day for this Court to alert the employers that their
attempt should be to evolve a contended labour. [853 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6417 of
1983.
From the Award dated the 5th April, 1983 of the Central
Government Industrial Tribunal, New Delhi in I.D. No. 54 of
1979.
O.P. Malhotra, N.S. Das Bahl, Pawan K. Bahl and Miss
Indu Malhotra for the Appellant.
Dr. Y.S. Chitale and H.S. Parthar for the respondents.
The Judgment of the Court was delivered by
845
KHALID, J. The appellant was a Tikka Mazdoor with the
first respondent, the Reserve Bank of India. A Tikka mazdoor
is a person who helps the Examiners of Coins/notes. He was
so selected on daily wages of Rs. 3 as per appointment
letter dated 30/4/1974. As per the appointment order he used
to report to the bank regularly at 9.30 A.M. to ascertain
whether he could get work on every-day. On days when no work
was given to him he had to wait till noon to be told by the
authorities concerned that no work was available on such
days. Thus he was given work only for four days in 1974, One
Hundred and Fifty Four days in 1975 and One Hundred and Five
days in 1976. At the time he was selected for employment, he
was not a matriculate. He passed the matriculate examination
in 1975. At the time he was selected he was not told that
his name would be struck off the list of Tikka Mazdoors if
he passed the matriculate examination. On 23/7/1976, he
received a letter from the bank asking him to state within a
week (latest by 29/7/1976) as to what his educational
qualification was. He was also informed that his name would
be struck off since he had concealed his educational
qualification and that his services would be terminated
without any notice and compensation from the bank. It
appears that Tikka Mazdoors are placed in List II maintained
by the bank. A confidential circular seems to have been
issued by the bank on 27/6/1976 to the effect that
matriculates would not be retained in this list. The
appellant sent a reply stating that he was not a matriculate
in 1974 when he was selected and that he passed the
examination only in 1975. He enclosed the certificate and
the marks-sheet to prove that he passed the examination only
subsequent to his selection as Tikka Mazdoor.
2. The appellant was not given any work after July
1976. There is no written order terminating his services.
The representative of the first respondent admitted, while
he was cross-examined, that no formal order intimating the
appellant that his name was struck off the list was issued.
His father was also an employee of the bank. He knew that
the appellant’s name had been removed permanently from the
list of Tikka Mazdoors. Thereupon, both his father and the
appellant made representations to the bank against the
action taken. No reply was given to these representations.
When his attempt to get his grievances redressed by
correspondence failed, he moved for conciliation. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
Assistant Labour Commissioner appeared to be impressed with
the genuineness of his case, but his persuation did not move
the bank in his favour. Thereupon, the Central Government
made a reference by Notification dated 19/9/1979, for
adjudication of the following dispute to Central Government
Industrial Tribunal, New Delhi.
846
"Whether the action of the Management of Reserve
Bank of India, Kanpur, in striking off the name of
Shri H.D. Singh from the list of approved Tikka
Mazdoors from July, 1976, is Justified and legal?
If not, to what relief the workman in question is
entitled?"
3. The appellant in his claim statement pleaded as
follows:
(i) He had presented himself for duty daily, but was
not offered jobs on the days when he reported for
duty for reasons best known to the bank;
(ii) He was employed only for four days in the year
1974, 154 days in 1975 and 105 days in 1976;
(iii) He was not told at the time when he accepted the
job that his name would be struck off from the
rolls if he passed the matriculate examination.
(iv) He pleaded mala fides, in that persons similarly
placed like him who had become matriculates after
selection had been retained in service and that he
alone was discriminated against;
(v) He stated that acquisition of high qualification
should never have been used against him to deny
him his job;
(vi) He had worked continuously for 240 days if the
Sundays and holidays are taken into account;
(vii) The action of the bank in striking out his name
from the list amounted to retrenchment.
4. The claim of the appellant was resisted by the bank
raising both preliminary legal objections and factual
objections. It was contended that the reference was bad
since the dispute was not sponsored by any representative
trade union, that Section 2-A was not attracted and also
that the dispute in question was not an industrial dispute.
On merits, the claim was resisted with the plea that the
appellant failed to inform the bank that he had passed
matriculation examination after getting selected and
secondly that he had not worked for 240 days in any year.
These rival contentions were considered by the Tribunal
and it was held as follows:
847
"....... The action of the Reserve Bank of India,
Kanpur, in not giving regular appointment to Shri
H.D.Singh is held to be legal and proper and his
name could be struck off from the list of approved
Tikka Mazdoors in terms of a proper and
justifiable policy followed by the management of
the Reserve Bank of India, Kanpur. Mr. H.D. Singh
is held not entitled to any relief."
It is against this award that the appellant has come up to
this Court by special leave.
5. Before considering the questions involved in this
appeal, it would be appropriate to extract in full the
Memorandum issued by the Reserve Bank of India, Kanpur,
which lays down the terms and conditions of service of a
Tikka Mazdoor.
M E M O R A N D U M
No. 6602 Dated: 30th April, 1974.
From: Reserve Bank of India To: Shri Harindra dhwaj
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
Kanpur Singh C/o Shri B.D.
Singh, C/N Examiner
Gr.
II., R.B.I Kanpur.
With reference to his application dated 31/7/73, Shri
Harendra Dhwaj Singh is informed that the Bank is prepared
to offer him the post of a Tikka Mazdoor on the following
terms and conditions:
(i) He should call at the office of the bank by 9.30
A.M. on every working day to ascertain whether he
would be offered employment on that day and he
should leave only if he is advised that he will
not be offered any employment on that day.
(ii) For each day he is employed by the bank, he will
be paid a consolidated daily wage of Rs. 3 and
will not be entitled to any allowance or other
remuneration.
(iii) His hours of duty, if employed, on any day would,
for the present, be from 9.30 A.M. to 5.15 P.M.
which hours of duty are liable to be altered
without notice.
848
(iv) In case he does not present himself for employment
on five consequtive working days without first
having obtained prior permission his appointment
will be liable to be terminated without any
notice.
(v) His appointment is subject to his being found
medically fit for service in the bank by the
bank’s medical officer.
(vi) He will be required to comply with and obey all
orders and directions which may from time to time
be given to him by any person or persons under
whose jurisdiction, superintendence or control he
may for the time being be placed.
(vii) He should maintain the strictest secrecy regarding
the bank’s affairs and serve the bank honestly and
loyally.
(viii) He should produce at the time of reporting for
duty satisfactory evidence of having obtained a
proper release from his present appointment, if
any.
(ix) He should produce at the time of reporting for
duty a letter of introduction from a respectable
person.
(x) He should produce at the time of reporting for
duty sufficient proof of his age and educational
qualifications and also bring with him the
original certificates. Copies of which were
attached to his application.
(xi) The appointment will be subject to his furnishing
such information as the bank may require from time
to time and subject to his service being
acceptable in the light of the information
furnished.
(xii) If any declaration, statement or information given
by him is at any time found to be false or
incorrect or if any material particular is
omitted, his appointment will be liable to be
terminated forthwith without any notice.
(xiii) The present appointment will not confer on him any
right for a temporary post or permanent post in
the bank’s service.
849
2. If he is agreeable to opt for casual appointment on daily
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
wages on the above terms and conditions, he should report to
the Manager’s Section on or before the 4th May, 1974.
Sd/- B.N. Rohatgi
P. Manager.
A mere reading of this Memorandum shows how rigorous
and one-sided the conditions are for a job that fetches a
’handsome’ sum of Rs. 3 per day. It is useful to note that
this Memorandum does not contain any terms that a Tikka
Mazdoor will be struck off the rolls once he passed the
matriculate examination.
6. During the course of the submissions made by the
appellant’s Counsel, he referred to a confidential
communication issued by the Bank to its officers to deal
with Tikka Mazdoor. We think to it appropriate to extract
the relevant portion therefrom, so that the facts of the
case can be understood in the proper setting.
RESERVE BANK OF INDIA
CENTRAL OFFICE
Department of Administration & Personnel
Bombay - 400 001.
Ref. No. 4953/23H/75-76. 26th June, 1976.
Confidential.
The Manager,
Reserve Bank of India,
Ahmedabad/Bhubaneshwar/Bangalore/
Bombay/Vyculla/Bombay-8/Calcutta/
Gauhati/Hyderabad/Jaipur/Kanpur/
Madras/Nagpur/New Delhi/Patna.
Dear Sir,
Recruitment-Class IV-Mazdoors and
Tikka Mazdoors.
...........
...........
850
"5. As regards Tikka Mazdoors other than those referred to
in paragraph 4 above, born on the lapsed list i.e. those who
have not worked at all or who have worked for a lesser
period than 240 days during the preceeding 12 calender
months, the non-matriculates among them only may be
considered for inclusion in List II allowing them
appropriate relaxation in age having regard to the period of
service, if any, rendered by them and their past record, if
their number is not considered adequate to meet the
requirements of your office, additional fresh candidates may
be wait-listed in the usual manner. In order to keep the
candidates so wait-listed outside the scope of Section 2(oo)
of the Industrial Disputes Act, they should not hereafter be
engaged continuously but should, as far as possible, be
offered work on a rotation basis. The latest position
regarding their qualification and when any of them is found
to have passed the matriculation or equivalent examination,
his name should be struck off the list.
6. Please let us know in due course the action taken by you
in the matter along with particulars of Tikka Mazdoors wait-
listed in Lists I and II."
7. It is clear from the pleadings and from the documents
noted above how the respondent-bank managed to get rid of
the appellant. The disclosures made in the confidential
circular make our task easy in holding that the Bank was
determined to adopt methods to terminate the services of the
employees like the appellant. The appellant was not told
that he would be struck off the rolls if he passed the
matriculation. He was not given any order in writing either
refusing work or informing him that his name would be struck
off the rolls. The case of the bank is that he was orally
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
informed that his name has been struck off. Striking off the
name of a workman from the rolls by the employer amounts to
’termination of service and such termination is retrenchment
within the meaning of Section 2(oo) of the Act if effected
in violation of the mandatory provision contained in Section
25-F, and is invalid. In this case the facts need only to be
stated to hold that the petitioner’s name had been struck
off the list contrary to the mandate contained in Section
25-F. This Court has held in Delhi Cloth & General Mills
Ltd. v. Shambhu Nath Mukherjee & Ors. [1978] 1 S.C.R. 591,
that striking off the name from the rolls by the management
is retrenchment within the meaning of Section 2(oo) of the
Act. While reading Section 25-F, 25-B and Section 2(oo),
Krishna Iyer, J. in State Bank of India v. Shri N. Sundara
Money, [1976] 3 S.C.R. 160, has observed that the words ’for
any reason whatsoever’ occurring in
851
Section 2(oo) are very wide and almost admitting of no
exception. It was made clear that a comprehensive definition
has to be effectuated to protect the weak against the strong
in construing the ambit of the words contained in Section
2(oo). Pithily he observed that ’without further ado, we
reach the conclusion that if the workman swims into the
harbour of Section 25-F, he cannot be retrenched without
payment, at the time of retrenchment, compensation computed
as prescribed therein read with Sec. 25-B(2)."
8. That takes us to the question whether the appellant had
qualified himself to sustain his claim to the benefits of
Section 25-F. The appellant, as we will presently see, has
given the number of days on which he worked, in his claim
statement. The first respondent-bank arranged posting Tikka
Mazdoors, like the appellant, in such a manner that they
were denied the benefits of the Industrial Disputes Act.
Since the first respondent-bank disputed the fact that the
appellant had worked for sufficient number of days to
entitle him to claim remedies under the Act, we think it
necessary to refer to the facts as disclosed in the records.
The Advocate who appeared for the appellant before the
Tribunal, Shri R.N. Srivastava, has failed an affidavit in
this Court stating that he had filed written arguments
before the Tribunal explaining the mistake committed by the
Bank in the computation made by it of the number of working
days of the appellant. From this affidavit, it is seen that
the first respondent-bank put forward a case that the
attendance register for the month of July, 1976 had been
destroyed and that Sundays and other holidays were not taken
into account in computing the number of days that the
appellant worked. We have also a supplementary affidavit
filed by the appellant himself which throws further light
about the number of days that he worked. In this affidavit,
it is seen that he worked for 4 days in 1974, 154 days from
January 1975 to December 1975 and 105 days from January 1976
to July 1976. The appellant was denied work from July 1976.
His affidavit shows that he had worked for 202 days from
July 1975 to July 1976. According to him, if we add 52
Sundays and 17 holidays, the total number of days on which
he worked comes to 271 days. The appellant charged the Bank
with having tampered with the records. To contradict the
appellant’s case, the first respondent bank did not produce
its records. The appellant wanted the relevant records to be
filed but they were not produced. Grounds 18 to 20 of the
special leave petition make mention of this plea of the
appellant. These grounds are met by the first respondent
bank in their counter affidavit filed in this Court by
852
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
stating that "when the matter was before the Industrial
Tribunal, the registers in question were filed in another
case before the Industrial Tribunal-cum-Labour Court and
produced in that Court. However, I submit that now the
attendance register has been destroyed but the payment
registers are available with the respondent-bank as proof of
the number of days on which the appellant worked." In the
absence of any evidence to the contrary, we have necessarily
to draw the inference that the appellant’s case that he had
worked for more than 240 days from July, 1975 to July, 1976,
is true.
Striking off the name of the appellant under these
circumstances is clearly termination of his service and the
dispute in this case therefore squarely comes within Section
2-A of the Industrial Disputes Act. The Tribunal grossly
erred in upholding the preliminary objection raised by the
bank that the dispute did not come within Section 2-A.
9. Not being satisfied with the pleas noted above the
respondent-bank had also a case that the appellant was only
a badli workman who could be deemed to have worked only on
days when the permanent workman or probationer was not
employed. The bank did not make available before the
Tribunal any documentary evidence to show as to how the
appellant could be treated as a badli worker and as to whose
place he occupied during the days he worked.
The confidential circular directing the officers that
workmen like the appellant should not be engaged
continuously but should as far as possible, be offered work
on rotation basis and the case that the appellant is a badli
worker, have to be characterised as unfair labour practice.
The 5th Schedule to the Industrial Disputes Act contains a
list of unfair labour practices as defined in Section 2(ra).
Item 10 reads as follows:
"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."
We have no option but to observe that the bank, in this
case, has indulged in methods amounting to unfair labour
practice. The plea that the appellant was a badli worker
also has to fail.
10. We thought it necessary to refer to the factual details
in the case only to show our concern at the manner in which
the
853
employer in this case, the Reserve Bank of India, who should
set a model for other employers being a prestigious
institution, behaved towards its employees. It must have
been his helpless condition and abject poverty that forced
the appellant to accept a job on Rs. 3 per day. Still see
how he has been treated. We will not be far from truth if we
say that the Bank has deliberately indulged in unhealthy
labour practice by rotating employees like the appellant to
deny them benefits under the Industrial Law. It has
disturbed us to find that the appellant was denied job
because he had become better qualified. Perhaps the Reserve
Bank of India and its officers are not aware of the grave
unemployment problem facing the youth of this country and
also not aware of the fact that graduates, both boys and
girls, sweep our roads and post-graduates in hundreds, if
not in thousands, apply for the posts of peons. It has been
our sad experience to find employers trying to stifle the
efforts of employees in their legitimate claims seeking
benefits under the Industrial Law by tiring them out in
adjudication proceedings raising technical and hyper
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
technical pleas. Industrial adjudication in bona fide claims
have been dragged on by employers for years together on such
pleas. It would always be desirable for employers to meet
the case of the employees squarely on merits and get them
adjudicated quickly. This would help industrial peace. It is
too late in the day for this Court to alert the employers
that their attempt should be to evolve a contented labour.
We do not forget at the same time the fact that it is
necessary for the labour also to reciprocate to prevent
industrial unrest. In this case, for example, the Bank
should have treated the appellant as a regular hand in List
II. Instead, the Bank has, by adopting dubious methods
invited from us, remarks which we would have normally
avoided.
11. We hold that the appellant is entitled to succeed. We
set aside the order of the Industrial Tribunal and hold that
the striking off the name of the appellant from List II
amounted to retrenchment under Section 2(oo) of the Act and
was in violation of Section 25-F. We direct the first
respondent-bank to enlist the appellant as a regular
employee, as Tikka Mazdoor, to reinstate him and pay him his
back wages up-to-date. The appeal is allowed with costs
quantified at Rs. 3,000.
N.V.K. Appeal allowed.
854