Full Judgment Text
NEUTRAL CITATION NO: 2023:DHC:2189
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 31.01.2023
Pronounced on: 28.03.2023
+ W.P.(C) 7409/2007, CM APPL. 14091/2007 & 21640/2022
STATE BANK OF INDIA ..... Petitioner
Through: Mr. Rakesh Munjal, Senior
Advocate with Mr. Siddharth Sangal,
Mr.Nilanjani Tandon, Mr. Lalit
Allawadhi, Mr. Chirag Sharma and
Ms. Richa Mishra, Advocates.
versus
MOHAN SINGH BEDI ..... Respondent
Through: Mr. K.K. Rai, Senior Advocate with
Mr. Piyush Sharma, Mr. Anshul Rai,
Mr. Shivam Dubey and Ms. Sreoshi
Chatterjee, Advocates.
CORAM:
HON’BLE MR. JUSTICE GAURANG KANTH
J U D G M E N T
GAURANG KANTH, J.
1. The present Writ Petition emanates from the judgment dated 19.07.2007
(“ Impugned Award” ), passed by the learned Industrial Tribunal Cum
Labour Court-II, New Delhi in I.D. No. 80/2001 titled as Shri Mohan
Singh Bedi v. The Dy. General Manager, State Bank of India . Vide the
Impugned Award, the learned Labour Court allowed the petition filed by
the Respondent/Workman and held that the Respondent/Workman was a
Messenger throughout his 10 years of service at the DPS extension
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counter of the Bank and not a contractual employee. Learned Labour
Court further held that the Respondent/Workman had performed 240
days of service at least in the years 1991-1999 and directed the Petitioner
to reinstate the Respondent/Workman with 100% backwages. The
Petitioner vide the present petition is inter alia praying to set aside the
Impugned Award.
FACTS GERMANE TO THE PRESENT WRIT PETITION ARE
AS FOLLOWS:
2. At the outset, it is the case of the Respondent/Workman that he was
appointed as a full-time Messenger at the Petitioner/Bank at Ring Road,
Lajpat Nagar Branch, to augment the strength of the subordinate staff
with effect from 16.06.1990 at a fixed salary of Rs.2,000 p.m. It is further
the case of the Respondent that the Petitioner/Bank withdrew the
permanent Messenger posted at D.P.S. Extension Counter of the Bank
and posted the Respondent/Workman to carry out indoor & outdoor
duties of the Bank as a Messenger.
3. Further, the Respondent/Workman claims that he attended duties in the
Petitioner/Bank from 8.45 AM – 5 PM and the work of the
Respondent/Workman inter-alia entailed the following:
a) Working as Cash Messenger - Stitching notes etc.
b) Stamping of cheque books.
c) Attending the officials & clerical staff of the Bank as
Messenger.
d) Carrying cash from the Extension Counter to the branch and
branch to the Extension counter.
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e) Distribution of Dak.
f) Stitching vouchers and stamping vouchers.
g) Adjusting ledger sheets in ledger.
h) Stitching cash, and
i) Doing all other messengerial duties which were being
assigned from time to time.
4. He also claims that besides messengerial duties, he was also asked to
perform clerical duties, in case of emergency.
5. It is further the claim of the Respondent/Workman that in terms of the
Agreements dated 27.10.1988 and 09.01.1991 entered between the
Petitioner/Bank and the All India State Bank of India Staff Federation, all
temporary, casual and daily wager employees who worked in the Bank
for more than 30 days in the calendar year between 01.07.1975 to
14.08.1991, were required to be empaneled and finally absorbed
permanently in the Bank service. However, the claim of the
Respondent/Workman who had the longest service was not considered.
6. Subsequently, on 29.11.1999, the Respondent/Workman submitted a
representation to the Dy. General Manager of the Petitioner/Bank.
However, it is the claim of the Respondent/Workman that the
Petitioner/Bank despite reminders did not reply to the same.
7. Further, it is also case of the Respondent/Workman that the
Petitioner/Bank turned hostile towards him and stopped his payment of
wages and thereupon the Respondent/Workman submitted various
representations including letters dated 26.02.2000 and further on
29.05.2000, as the Petitioner failed to pay the wages of the
Respondent/Workman for the month of March and April, 2000.
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8. On 01.06.2000, the services of the Respondent/Workman were
terminated by the Petitioner/Bank, without assigning any speaking order
or notice. The Respondent/Workman also claims that at the time of
termination of his services, he was paid wages by the Petitioner/Bank @
Rs. 3,587 p.m.
9. Further, an Industrial dispute was raised by the Respondent/Workman
before the Assistant Labour Commissioner (Central), New Delhi vide its
letter dated 12.07.2000 which was treated as part of its statement of
claim. Conciliation proceedings took place between the Petitioner/ Bank
and the Respondent/Workman. However, proceedings before the
Conciliation officer failed and the report was submitted to the Secretary,
Ministry of Labour vide letter dated 24.04.2001.
10. Thereafter, the case of the Petitioner was referred to the learned Labour
Court vide reference dated 16.10.2001, where the terms of reference were
as follows:
“Whether the action of the management of State Bank of India,
Zonal Office, Parliament Street, in terminating the services of Shri
Mohan Singh Bedi, Ex Messenger DPS Extension Counter, Mathura
Road, New Delhi w.e.f. 1-6-2000 is justified? If not, what relief the
workman concerned is entitled?”
11. Further, on 04.01.2002, the Respondent/Workman filed its Statement of
Claims and prayed for holding the termination of the Respondent as
illegal and malafide. The workman also prayed for reinstatement with
full backwages and continuity of service with all benefits of a permanent
employee of the Petitioner/Bank.
12. Pursuantly, the Respondent/Workman filed its written statement refuting
the claims made by the Respondent/Workman. The Petitioner/Bank inter-
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alia stated that the Respondent/Workman was never recruited by the
Bank. It was further stated that no appointment letter was ever issued to
him, and there was no employer-employee relationship between the
Petitioner/Bank and the Respondent/ Workman and hence no Industrial
dispute ever existed between them.
13. The Petitioner also filed a rejoinder to reiterate his case set up in the
statement of claim.
14. Based on the pleadings of the parties, the learned Labour Court framed
the following issues:
“l. Whether the workman has worked as Courier or Messenger
from 16.06.1990 to 01.06.2000?
2. Whether the management has committed unfair labour
practice in not giving regular appointment to the workman?
3. Whether the workman deserves reinstatement?
4. To what amount of back wages the workman is entitled?
5. To what relief the workman is entitled?”
15. In order to prove his case, the Respondent/Workman himself stepped into
the Witness box. In addition Sh. J.N Kapoor was examined on behalf of
the Union to support the case of the Respondent/Workman. Mr.
Sabyasachi N Dasgupta, Chief Manager of the Petitioner/Bank was
examined as Management Witness.
16. Based on the evidence adduced by the parties, the learned Labour Court
vide the Impugned Award dated 09.07.2001, allowed the petition filed by
the Respondent/Workman and held that the Respondent/Workman was a
messenger throughout his 10 years of service at the D.P.S. Extension
Counter of the Bank and not a contractual employee. Learned Labour
Court further held that the Respondent/Workman had performed 240
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days of service at least in the years 1991-1999 and directed the Petitioner
to reinstate the Respondent/Workman with 100% backwages.
17. Aggrieved by the same, the Petitioner/Bank preferred the present Writ
Petition in W.P.(C) 7409/2007 challenging the Impugned Award. This
Court vide its order dated 05.11.2007 issued notice to Respondent No.1
and stayed the operation of the impugned Award subject to the Petitioner
depositing the amount towards the back wages with the Registrar General
of this Court.
18. Later vide order dated 07.09.2009, this Court allowed the Application
filed by the Petitioner under Section 17-B of the Industrial Disputes Act,
1947 („ I.D. Act ‟).
SUBMISSIONS ON BEHALF OF THE PETITIONER
19. Mr. Rakesh Munjal, learned senior counsel for the Petitioner initiated his
arguments by submitting that the Impugned Award passed by the learned
Labour Court is bad, illegal, unjust and malafide.
20. Learned senior counsel succinctly submitted that the Respondent/
Workman was having a courier service and had its own three wheeler
scooter. One fine day, the Respondent/Workman himself approached the
Petitioner/Bank for rendering courier services and hiring of his three
wheeler scooter No. DER-3440. Pertinently, it was agreed that the
Respondent/Workman would charge the Petitioner/Bank according to the
services provided by his scooter or if any courier services were rendered
for the officers/employees of the Branch. Learned senior counsel further
went ahead and submitted that there was an agreement for rendering
courier services and an amount was fixed per month in that regard. It is
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his contention that as per the agreement, the Respondent/Workman
would pick up dak/letters/ documents from the Branch/Extension Counter
and deliver it to the addresses provided and thereupon charge accordingly
for such services. On 06.11.1997, the Respondent/Workman also
addressed a letter to the Petitioner/Bank requesting to enhance the
contracted amount of Rs. 3152/- to Rs. 3400/- paid on voucher.
21. It is the contention of the learned senior counsel that the
Respondent/Workman was never appointed by the Petitioner/Bank in
accordance with the rules and procedure of the Petitioner/Bank. He
pointed that neither any appointment letter nor any wages from the Salary
Account was paid to the Respondent/Workman. It is his submission that
the Respondent/Workman was only paid from the „Sundry Expenses
Account‟ on the basis of the vouchers submitted by him. The payments
were made to the workman on various dates according to the
miscellaneous courier/messenger services rendered by him on his scooter
purely on need basis, apart from the monthly payment for hiring the
Respondent‟s scooter for specified courier services. Hence, he submitted
that the above transaction is nowhere indicative of any employer-
employee relationship between the Petitioner/Bank and the
Respondent/Workman.
22. Learned senior counsel for the Petitioner submitted that the
Petitioner/Bank is a public sector institution where there are specific rules
relating to recruitment of its personnel in the Bank. The recruitment in
the Bank is done by the competent authority according to the well-
established procedure of the Petitioner/Bank keeping in view the Central
Government instructions issued from time to time and also adhering to
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the constitutional philosophy enshrined under Articles 14 and 16 of the
Constitution of India. Admittedly, the Respondent/Workman was never
as such appointed in the Petitioner/Bank, much less the rules. Therefore,
the Respondent/ Workman is not a „workman‟ under Section 2(s) of the
I.D. Act and there existed no Industrial dispute as defined under Section
2(k) of the I.D. Act.
23. Mr. Munjal further submitted that the copies of 550 or so vouchers
submitted by the Respondent/Workman from the period 18.04.1991 to
09.02.2000 were merely the conveyance bills which were paid by the
Petitioner/Bank to the Respondent for his courier/messenger services.
Further, learned senior counsel with regard to the Identity Card and two
letters/certificates dated 30.06.1995 and 15.05.2000 issued by the Bank
officers, submitted that the Identity card was issued by the
Petitioner/Bank to facilitate his smooth access to the Bank premises and
the two certificates were mere testimonials of his good services as a
courier/messenger by the junior officers, who were not competent or
authorized to issue such certificates and the same could not by any stretch
of imagination be deemed as admission of the Petitioner/Bank
recognizing the Respondent/Workman as its employee.
24. It is further the contention of the learned senior counsel that the learned
Labour Court ex facie overlooked a vital aspect which is inextricably
linked to the issue which fell for consideration. It was his argument that if
the Respondent was in temporary service of the Petitioner/Bank as
canvassed by him, why did he fail to apply for empanelment along with
other similarly placed ex-temporary employees during 1991-1992 when
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the panels of ex-temporary employees were prepared pursuant to the
settlement dated 09.01.1999.
25. One limb of the argument of the learned senior counsel was that the
Respondent/Workman has also not completed 240 days or more in the 12
months preceding the date when the Bank stopped taking his services.
Hence, the provisions of 25-F of the I.D. Act is not applicable to the
present facts of the case.
26. Lastly, it was also submitted by the learned senior counsel that the
Respondent/Workman is ingeniously trying to take undue advantage of
the favor done by the Bank for using his three wheeler scooter for
courier/messenger services and paying him on monthly basis. With the
above arguments, the learned senior counsel prayed for the dismissal of
the Impugned Award.
27. Mr. Munjal buttressed his arguments by relying on the judgment of the
Hon‟ble Supreme Court in the matter of Allahabad Bank v. Prem Singh
reported as (1996) 10 SCC 997, Secretary, State of Karnataka & Ors. v.
Uma Devi & Ors. reported as (2006) 4 SCC 1, Pankaj Gupta & Ors. v.
State of Jammu & Kashmir & Ors., reported as 2004 (8) SCC 353,
Rajasthan Tourism Development Corporation Ltd. & Anr. v. Intejam
Ali Zafri reported as (2006) 6 SCC 275, Himanshu Kumar Vidyayarthi
& Ors. v. State of Bihar & Ors. reported as (1997) 4 SCC 391.
Executive Engineer, State of Karnataka v. K. Somasetty & Ors. ,
reported as (1997) 5 SCC 434, State of Haryana & Anr. v. Tilak Raj &
Ors. reported as (2003) 6 SCC 123, Surendranagar District Panchayat
v. Dahyabhai Amarsinh , reported as (2005) 8 SCC 750, Range Forest
Officer v. S.T Hadimani reported as (2002) 3 SCC 25 and Ram Singh &
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ors. v. Union Territory, Chandigarh & Ors ., reported as 2004(1) SCC
126.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
28. Per Contra, learned senior counsel for the Respondent, Mr. K.K. Rai
while relying on the Impugned Award vehemently argued that the present
petition is bereft of any merits and should be dismissed in toto.
29. The learned senior counsel relied on the judgment of the Hon‟ble
Supreme Court in Syed Yakoob v. K.S Radha Krishnan reported as AIR
1964 SC 477 and P. Kasilingam v. P.S.G College of Technology
reported as (1981) 1 SCC 405 and submitted that the present writ petition
is not maintainable under the writ of Certiorari. He further submitted that
it will only be maintainable if the learned Labour Court has exceeded its
jurisdiction or any illegality has been committed or it has exercised
jurisdiction not vested with or if there is error apparent on the face of it.
30. It is the contention of the learned senior counsel for the
Respondent/Workman that the Respondent/Workman was not a
contractual labour but was a Messenger throughout and he has rendered
10 years of service as a Messenger during the years 1990-2000. He
further submitted that he was assigned duty from 8.45 AM to 5 PM and
was performing various functions like accompanying cash remittance,
remittance of small amount of cash etc., and sometimes other clerical
work as well. To substantiate the above arguments, the learned counsel
for the Respondent/Workman relied on the Identity Card issued by the
Bank which is document B-67. Further, he also relied on the copies of
555 bills/vouchers to prove the different payments made to him as a
Messenger. Furthermore, he also relied on the certificates issued by the
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In-charge of DPS Extension Counter which is document B-62, which
certifies that the Respondent/Workman performed duties of messenger at
DPS Extension Counter from 21.07.1994 to 27.12.1994. Other
certificates which are documents B-68 dated 30.10.1995 and B-69 dated
15.05.2000, also certifies that the Respondent/Workman worked from
1998 onwards as a Messenger in the DPS Extension Counter.
31. Mr. Rai, learned senior counsel for the Respondent also relied on the
evidence of MW-1, Mr. Sabyasachi N. Dasgupta, the Chief Manager of
the Petitioner/Bank and submitted that the witness of the Petitioner/Bank
himself admitted that the Respondent/Workman was writing in the books
of the Bank, which makes it amply clear that the Respondent/Workman
was not a courier as claimed by the Petitioner/Bank.
32. It is the contention of the learned senior counsel that the
Respondent/Workman had worked for a period of 10 long years as a
casual worker. Howbeit , the Petitioner/Bank removed the
Respondent/Workman without payment of retrenchment compensation.
He further submitted that the Respondent/Workman was doing the work
of permanent nature, it is evident from the fact that the permanent staff
who was appointed at DPS Extension Counter was withdrawn and the
Respondent/Workman was appointed in his place to perform the same
duties which the removed Messenger was doing. It is his contention that
the Petitioner/Bank has indulged in unfair labour practices as per fifth
Schedule of the I.D. Act which specifies some practices as unfair labour
practices and hence has violated Sections 25-F, G, T, U and Clause 10 of
fifth Schedule of the I.D. Act.
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33. The learned senior counsel for the Respondent/ Workman bolstered its
submissions by relying on the judgment of the Hon‟ble Supreme Court in
the matter of Hari Nandan Prasad and Another v. Employer I/R To
Management of Food Corporation of India and Another reported as
(2014) 7 SCC 190, Umrala Gram Panchayat v. The Secretary,
Municipal Employees Union and Ors. reported as (2015) 12 SCC 775,
ONGC Ltd. v. Petroleum Coal Labour Union , reported as (2015) 6 SCC
494 , Food Corpn. of India v. Employees Union , reported as (2018) 9
SCC 464 , Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya , reported as (2013) 10 SCC 324, this Hon‟ble Court in
Ram Singh v. the Management of CPWD reported as
MANU/DE/2729/2015, Management of CPWD v. Abdul Gaffar and
Ors. reported as MANU/DE/4071/2015
LEGAL ANALYSIS
34. I have heard the rival contentions of both the parties and perused the
documents placed on record.
35. Before adverting to the main issues which need adjudication, it is
imperative to state that the scope of interference by this Court in exercise
of its discretionary jurisdiction under Article 226 of the Constitution of
India is very limited which can be exercised only if the finding of the
learned Labour Court suffers from an error of jurisdiction or is vitiated by
an apparent error of law. There is no sanction enabling this Court to
reappraise evidence as in an appeal and draw conclusions on questions of
fact while exercising writ jurisdiction. It is well settled principle of law
that the High Courts are not to re-adjudicate upon questions of fact
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decided by the learned Labour Court unless the circumstances indicate
that the learned Labour Court has snatched jurisdiction not vested in it.
36. Moving ahead with this observation, the primary question which needs
consideration of this Court is the terms of reference itself, i.e, whether the
action of the Petitioner in terminating the services of the
Respondent/Workman w.e.f. 01.06.2000 is justified or not.
37. In order to decide the terms of reference, it is important to examine the
nature of the job performed by the Respondent/Workman. Learned
Labour Court examined issue No.1, i.e. whether the Respondent was
merely a courier on contractual basis or was he working continuously on
the post of messenger performing permanent functions for the
Petitioner/Bank. The finding of the learned Labour Court qua this issue is
as under:
“…….The documents filed on record and the certificate issued by
the competent authorities and the admission of the management
witnesses establishes the fact that the workman has worked as
messenger from 16.06.1990 to 07.06.2020 for more than 10 years.
Thus this stands proved that the workman was not a contractual
courier but he was a messenger throughout and he has rendered 10
years of service as messenger at the DPS extension counter of the
bank. He has performed 240 days atleast in the year
91,92,93,94,95,96,97,98,99. He has worked 6 months in 1990 and 6
months in 2000. This issue is decided accordingly.”
38. This Court examined the evidence adduced by the parties. The
Respondent/Workman has filed a document B-67, which is the Identity
Card issued by the Bank. A close look of the Identity Card reveals the
designation of the Respondent/Workman as „Messenger‟. Further, the
Respondent/Workman has also filed documents B-40 to B-60, which are
the statements of 555 bills paid to the Respondent from 18.04.1991-
21.03.2000 for the duties performed by him as a „Messenger‟ in the
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Petitioner/Bank. These documents are clearly evident of the full time
work performed by the Respondent/Workman as a „Messenger‟. Another
crucial piece of evidence filed by the Workman is the certificate issued
by the In charge of DPS Extension Counter which is B-62, which
certifies that the Respondent/Workman performed duties of „Messenger‟
at DPS Extension Counter from 21.07.1994 to 27.12.1994. Other
certificates which are documents B-68 dated 30.10.1995 and B-69 dated
15.05.2000, also certifies that the Respondent/Workman worked from
1998 onwards as a Messenger in the Extension Counter of the
Petitioner/Bank. The above documents clearly illustrate that the
Respondent/Workman was working as a full time „Messenger‟ during the
years 1991- 2000. Further, the deposition of MW-1 also weakens the
case of the Petitioner/Bank wherein he states that, “ there is no agreement
between the workman and the bank as the bank has not filed the same ”,
as the entire premise of the Petitioner‟s case is that the
Respondent/Workman was working under contract as a courier.
39. It is the case of the Respondent that the Petitioner terminated the services
of the Respondent w.e.f 01.06.2000, without issuing any
notice/conducting enquiry/paying any salary in lieu of notice. It is the
case of the Petitioner that there is no employer-employee relationship
between the parties as the Respondent/Workman was working under a
contract as courier. As discussed herein above, the Petitioner miserably
failed to prove their case. Whereas the Respondent/Workman
successfully proved that he was working with the Petitioner as a
Messenger during the years 1991-2000. It is an admitted position that no
notice/salary in lieu of one month notice was paid to the Respondent.
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The Respondent/Workman has rendered 10 years of service and he has
been removed without even paying any retrenchment compensation.
Therefore, the termination of the Respondent/Workman is in violation of
Section 25 F of the I.D. Act and hence the termination of the
Respondent/Workman is not justified.
40. Learned Labour Court further held that „the management has
indiscriminately followed unfair labour practice in retaining the
workman as casual for long 10 years and thereafter removing him even
without payment of retrenchment compensation and one month‟s pay in
lieu of notice‟ . Section 2(ra) of the I.D. Act defines unfair labour practice
as any of the practices specified in the Fifth Schedule of the Act. As per
Clause 10 of the Vth Schedule of the I.D. Act, „ 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 amounts to unfair labour practice. In the present
case, the permanent nature of work performed by the
Respondent/Workman on a temporary basis continuously during the
years 1991 to 2000 which is almost 10 years, has to be construed as being
an unfair labour practice as defined under Section 2(ra) of the I.D. Act
read with Entry No. 10 of the Fifth Schedule to the I.D Act, which is
prohibited under Section 25 T of the I.D Act. Further, it also amounts to a
statutory offence on the part of the Petitioner under Section 25 U of the
I.D. Act. In the present case, this Court is not talking of a few days or 240
days but a period of 10 years i.e. 1991-2000, when the
Respondent/Workman has rendered satisfactory, unblemished and
uninterrupted services to the Petitioner/Bank, which is also evident from
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the certificates given by the then In charge of the Bank. To say the least,
the denial of permanent appointment to the Respondent has resulted in
depriving him of regular pay scale, emoluments as well as leave benefits
etc. which tantamount to an extremely unfair labour practice and
exploitation of the services of the poor worker. This Court subscribes to
the view expressed by the learned Labour Court and held that the
Petitioner/Bank indeed followed unfair labour practice as defined under
Section 2(ra) of the I.D. Act.
41. The Respondent/Workman has rendered 10 years of service and he has
been removed without any payment of retrenchment compensation in
violation of Section 25 F of the I.D. Act. In view of the same, the learned
Labour Court held that the Respondent/Workman is entitled for
reinstatement with full backwages. This Court is conscious of the judicial
pronouncements to the effect that the reinstatement with back wages is
not to be granted in an automatic manner where the termination of a
casual worker is found to be illegal because of the violation of Section 25
F of the I.D. Act. However, in the present case, this Court is guided by
the Judgment of the Hon‟ble Supreme Court in Bharat Sanchar Nigam
Limited Vs Bhurumal reported as 2014 (7) SCC 177 . The relevant
portion of the said Judgment, inter alia , reads as follows:
“23. It is clear from the reading of the aforesaid judgments that
the ordinary principle of grant of reinstatement with full back
wages, when the termination is found to be illegal is not applied
mechanically in all cases. While that may be a position where
services of a regular/permanent workman are terminated
illegally and/or malafide and/or by way of victimization, unfair
labour practice etc. However, when it comes to the case of
termination of a daily wage worker and where the termination is
found illegal because of procedural defect, namely in violation
of Section 25-F of the Industrial Disputes Act, this Court is
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consistent in taking the view 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.
24. Reasons for denying the relief of reinstatement in such cases
are obvious. It is trite law that when the termination is found to
be illegal because of non-payment of retrenchment
compensation and notice pay as mandatorily required
under Section 25-F of the Industrial Disputes Act, even after
reinstatement, it is always open to the management to terminate
the services of that employee by paying him the retrenchment
compensation. Since such a workman was working on daily
wage basis and even after he is reinstated, he has no right to
seek regularization (See: State of Karnataka vs. Uma
Devi (2006) 4 SCC 1). Thus when he cannot claim
regularization 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. In such a situation, giving the relief of
reinstatement, that too after a long gap, would not serve any
purpose.
25. We would, however, like to add a caveat here. There may be
cases where termination of a daily wage worker is found to be
illegal on the ground it was resorted to as unfair labour
practice or in violation of the principle of last come first go viz.
while retrenching such a worker daily wage juniors to him were
retained. There may also be a situation that persons junior to
him wee regularized under some policy but the concerned
workman terminated. In such circumstances, the terminated
worker should not be denied reinstatement unless there are
some other weighty reasons for adopting the course of grant of
compensation instead of reinstatement. In such cases,
reinstatement should be the rule and only in exceptional cases
for the reasons stated to be in writing, such a relief can be
denied.”
42. The ratio of this Judgment is recently followed by the Hon‟ble Supreme
Court in Ranbir Singh Vs Executive Engineer, PWD reported as 2021
SCC Online SC 670 .
W.P.(C) 7409/2007 Page 17 of 19
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43. Applying the dicta of BSNL (Supra) to the present case, this Court finds
that the Petitioner/Bank resorted to unfair labour practice while
terminating the services of the Respondent/Workman. As held by
Hon‟ble Supreme Court in BSNL (Supra) , in the cases of unfair trade
practises, „the terminated worker should not be denied reinstatement
unless there are some other weighty reasons for adopting the course of
grant of compensation instead of reinstatement. In such cases,
reinstatement should be the rule and only in exceptional cases for the
reasons stated to be in writing, such a relief can be denied‟. In the
present case, there is no such exceptional circumstance which has been
pointed out by the learned counsel for the Petitioner. Hence in view of
the same, the Respondent is entitled to reinstatement with full back
wages.
44. Thus, this Court is inclined to affirm the findings of the learned Labour
Court, as mere perusal of the Impugned Award would go on to show that
the learned Labour Court has examined the facts and question of law in
the right perspective on the facts and evidence adduced by the parties.
Hence, none of the findings as assailed in the present petition calls for
any interference. The Respondent/Workman should be reinstated with
full back wages.
45. This Court notes that in compliance of the order dated 05.11.2007, the
Petitioner had already deposited the amount towards 100% backwages
with the Registrar General of this Court. The Registry is directed to
release the said deposited amount with up-to-date interest to the
Respondent/Workman.
W.P.(C) 7409/2007 Page 18 of 19
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NEUTRAL CITATION NO: 2023:DHC:2189
46. This Court further notes that the Respondent/Workman is getting
payment under Section 17 B of the I.D. Act.
47. In view of the same, while calculating the outstanding backwages, the
Petitioner/Bank is entitled to adjust the payment made under Section 17-
B of the I.D. Act as well as the amount released to the Respondent/
Workman by the Registry of this Court.
48. As an upshot of the above discussions, this Court is of the considered
view that there is no perversity or infirmity in the Impugned Award. In
view thereof, this Court, while exercising its jurisdiction under Article
226 of the Constitution, is not inclined to interfere with the Impugned
Award.
49. Hence, the present writ Petition is hereby dismissed. No orders as to cost.
All pending applications are also disposed of.
GAURANG KANTH, J.
MARCH 28, 2023
PS
W.P.(C) 7409/2007 Page 19 of 19
Signature Not Verified
Digitally Signed
By:KOMAL DHAWAN
Signing Date:29.03.2023
17:35:58