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Uco Bank And Another v. C.G.I.T. Cum-Labour Court And Others - WRIT - C No. 3404 of 2007  RD-AH 5901 (2 April 2007)
Writ Petition No.3404 of 2007
UCO Bank and another .........Petitioners.
C.G.I.T. Cum- Labour Court, Kanpur Nagar
and others. ..........................Respondents.
Hon'ble Tarun Agarwala, J.
By means of this petition, the petitioners have challenged the validity and legality of the award passed by the Central Government Industrial Tribunal reinstating the respondent No.2 with full back wages and with all consequential benefits attached with the post. The facts leading to the filing of the present writ petition is, that a dispute was referred to the tribunal for adjudication. The terms of the reference order was:
" Whether any employer employee relationship existed between the UCO Bank and Sri Rajesh Kumar Diwakar ? If yes, whether the action of the management in terminating the services of the said workman w.e.f. 1.6.2001 is legal and justified ? If not, to what relief is the workman entitled for ?
The workman in his written statement submitted that he was appointed by the bank on 7.12.1999 in its Armapore branch, Kanpur on the post of Driver on a consolidated wages @ 1800/- per month. The bank also provided a dress to the workman and was also given traveling allowance, dearness allowance, etc. It was alleged that the workman was appointed on a temporary basis against a regular and permanent post of driver and worked without any break in service upto 31.5.2001, and thereafter, his services were dispensed with by an oral order w.e.f 1.6.2001without giving any show cause notice or charge sheet and without any reasonable cause. The workman contended that his work and conduct was satisfactory and that there was no complaint against him. The workman further contended that he had worked for more than 240 days in a calendar year, and therefore, his services could not be dispensed with without complying with the provision of Section 25F of the Industrial Disputes Act, 1947. Since the provision of Section 25F of the Act was not complied with by the employers, the termination
of the services of the workman was wholly illegal and that he was liable to be reinstated with continuity of service and with full back wages.
The petitioners denied the claim of the workman and contested the matter alleging that the workman was never appointed by the bank and that there was no master and servant relationship between the parties, and therefore, the question of terminating the service of the workman did not arise. The petitioners further submitted that the workman was appointed as a personal driver of the then Senior Manager, Sri U.S.Wahi, who was working in the bank's branch at Kanpur and that the salary to the workman was also paid by the Senior Manager. It was contended that the Senior Manager had never appointed the workman to work as the Cash Van driver on a temporary basis. The senior Manager was in any case was not competent to appoint the workman either on a temporary basis or on a regular basis in the services of the Bank. It was contended that the Senior Manager, Sri U.S. Wahi retired from the service of the bank on 31.5.2001 and consequently he disengaged the services of the workman w.e.f 1.6.2001. The petitioners contended that since the workman was never an employee of the bank, the question of complying with the provision of Section 25 F of the Act did not arise.
The tribunal after considering the evidence on record, found that the Armapore branch of the petitioners' bank at Kanpur and the Belaganj branch at Agra were the currency chest branches of the bank and that the post of a permanent cash van driver existed at both the branches on account of the retirement of the permanent cash van drivers. The tribunal, after considering the evidence on record, came to the conclusion that even though no appointment letter was issued to the workman by the bank, nonetheless, the workman was driving the Bank's van for carrying cash to different branches of bank in the city as well as to outstation branches of the bank. The tribunal further found that whenever the van was used by the petitioner's bank, it was driven by the workman and was accompanied by two arms guard. The tribunal further found that the workman used to fill up the logbook of the van in his own handwriting and that the bank used to provide him with a uniform, etc.
The tribunal further found that even though the workman was paid Rs.1800/- per month salary by the Senior Manager, the amount paid to the workman was reimbursed by the bank to the Senior Branch Manager. The tribunal further found that the car provided by the petitioner was only used by the bank for official purposes and it was not being used for personal purpose by the Senior Branch Manager. The tribunal further found that the workman had worked for more than 240 days continuously in a calendar year. The tribunal also found that the senior Manager was authorised to appoint a cash van driver.
In view of the aforesaid findings, the tribunal came to the conclusion with there existed a master and servant relationship between the workman and the bank and that the workman was in fact an employee of the bank. The tribunal further found that the workman had worked continuously for more than 240 days in a calendar year and that his services were dispensed with without complying with the provision of Section 25-F of the Industrial Disputes Act. Consequently, the tribunal found that the termination of the workman amounted to retrenchment, as defined under Section 2 (oo) of the Industrial Disputes Act, and therefore, was entitled to reinstatement in the services of the bank on the post of driver with all consequential benefits attached with that post. The petitioners, being aggrieved by the aforesaid award, have filed the present writ petition.
Heard Sri Manoj Mishra, the learned counsel for the petitioners' bank and Shri Ashok Khare, the learned Senior Counsel assisted by Sri S.D.Shukla, the learned counsel for the respondent No.2.
The learned counsel for the petitioners has assailed the award contending that the finding of the tribunal that there was a master and servant relationship between the bank and the workman, was based on surmises and conjectures. The petitioners contended that the workman was employed as the personal driver of the Senior Manager of the bank and that under the terms and conditions of his employment, the Senior Manager was entitled for the reimbursement of the salary paid by him to the workman. Consequently, the mere fact that the amount paid towards
salary by the Senior Manager was reimbursed by the petitioners did not mean that there was a master and servant relationship between the petitioners' bank with that of the workman.
The learned counsel further urged that there was no evidence to indicate that the bank had appointed the workman. The learned counsel further submitted that the tribunal, while reinstating the workman, had mechanically, and without any application of mind, granted full back wages with all consequential benefits attached to that post. The learned counsel submitted that the award of full back wages was wholly illegal and excessive, inasmuch as, no averment was ever made out by the workman that he was not gainfully employed during the interim period.
In support of his submissions, the learned counsel for the petitioners' bank placed reliance on a decision of the Supreme Court in Punjab National Bank vs. Ghulam Dastagir, 1978 (2) SCC 358 and, on the question of back wages, placed reliance upon the decision of the Supreme Court in Bank of Baroda vs. Ghemarbhai Harjibhai Rabari, 2005 (10) SCC 792 and in Kendriya Vidyalaya Sangathan vs. S.C. Sharma, 2005 (2) SCC 363 and in the case of U.P. State Brassware Corporation Ltd. and another vs. Uday Narain Pandey, 2006 (1) SCC 479.
Having given my thoughtful consideration, this Court is of the opinion that in view of the overwhelming evidence that has come on record, it is clear that a master and servant relationship existed between the bank and the workman. Even though, no formal order has come on record, showing the appointment of the workman by the bank, it is clear, that the authority to appoint any person as the driver was the Senior Manager, who, in fact, had appointed the workman as the driver. The employers, however, contended that the Senior Manager had appointed the workman as his personal driver. Therefore, the question that arises for consideration is, whether the workman was appointed as the personal driver of the Senior Manager or was he appointed for the purposes of doing the work of the bank. The evidence which has come before the tribunal is that there was one Van which was used by the bank for its
official purposes for sending the currency to various branches in the city as well as to the branches located outside the city. The van, driven by the workman was accompanied by two arms guards of the bank. A specific finding has been given that the bank had not provided any car to the Senior Manager for his personal use nor any evidence has been given by the Senior Manager himself that he had a personal car and that he had appointed the workman for his personal use. In fact the Senior Manager in his deposition has clearly indicated that a vehicle was given by the bank for the use of the work of the bank and for that purposes, the workman was engaged as a driver. The witness had also admitted that he used to drive the vehicle and he was given a dress etc., by the bank. The evidence brought on the record also indicated that the salary paid by the senior Manager was reimbursed to him by the bank. In my opinion, this leads to an irresistible conclusion that the workman was appointed as a driver in the bank and was not appointed as the personal driver of the then Senior Manager. The finding given by the tribunal is based on the findings of fact which is not perverse and which cannot be interfered in a writ jurisdiction.
The reliance of the learned counsel for the petitioners in the case of Punjab National Bank (supra) is misplaced. In that case a specific finding had been arrived at that the driver was engaged by the Area Manager of the bank and that the Area Manager was paid allowance for the use of a driver for his personal purpose. The Supreme Court further found that there was no nexus between the bank and the driver. In the present case, all the evidence are to the contrary. It has been clearly established that the workman was driving the Bank's vehicle and was transferring the currency from one branch to another branch along with the security guards. No evidence has come forward to show that he was the personal driver of the senior Manager. Further, no evidence has been shown by the bank to indicate that the driver's allowance was part of the terms and conditions of service or perks given to the Senior Manager. From the evidence that has come on record, it is clear that the bank had adopted an unfair labour practice and adopted this method of
employment in order to avoid appointing a permanent driver which post was existing.
In view of the aforesaid, this Court is of the opinion that the submission of the learned counsel for the petitioners to the effect that there was no master and servant relationship between the bank and the workman is misconceived and bereft of merit and no interference is required in the finding given by the tribunal.
The learned counsel for the bank further submitted that the tribunal had mechanically directed the bank to reinstate the workman with continuity of service and with full back wages and with all consequential benefits attached to the post. The learned counsel for the bank further submitted that the said direction was wholly illegal, arbitrary and had been passed without any application of mind. In support of his submission, the learned counsel has placed reliance upon various decisions of the Supreme Court. On the other hand, the learned counsel for the workman submitted that since the termination of the service of the workman was wholly illegal and that the employer had adopted an unfair labour practice, the tribunal while exercise its discretion validly granted full back wages with continuity of service which does not require any interference in a writ jurisdiction.
Payment of back wages is automatic consequent upon a declaration that the order of termination is unsustainable for whatever reason. This was the normal rule which was being followed since the enactment of the Industrial Disputes Act.
The Supreme Court in U.P. State Brassware Corporation Ltd. (supra) held-
" The Industrial Disputes Act was principally established for the purpose of pre-empting industrial tensions, providing the mechanics of dispute resolutions and setting up the necessary
infrastructure so that the productive battles and assurance of industrial justice may create a climate of goodwill.
The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which justice is the buzzword in the matter of adjudication under the Industrial Disputes act, it would be wholly
improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice
would bring within its purview giving a person what is due to him and not what can be given to him in law.
The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident."
The Supreme Court in various decisions held that no precise formula could be laid down as to under what circumstances, the entire back wages was to be allowed and that it would depend on the facts and circumstances of each case. The Supreme Court, however, has categorically stated that back wages is not automatic and should not be granted mechanically because the order of termination was being set aside or that the order of termination was found to be in contravention of the provisions of Section 25 F of the Industrial Disputes Act. The Supreme Court in the case of G.M., Haryana Roadways vs. Rudhan Singh, 2005 (5) SCC 591 held-
" A host of factors like the manner and method of selection and appointment i.e. Whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balance in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our
experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calender year."
In the light of the aforesaid observations and in view of the fact that the workman did not plead that after the termination of his services he was unemployed or that he remained wholly unemployed or that he was not gainfully employed during the interim period, this Court is of the considered opinion that since the workman had only rendered a small length of service with the bank and on the other principle of 'no work no pay', this Court is of the opinion that the grant of full back wages with consequential benefits attached to the post is excessive and is liable to be modified. Since not much evidence has been given in this regard, consequently, the Court in exercise of its power under Article 226 of the Constitution of India modifies the award with regard to the back wages in the manner stated hereinafter.
In view of the aforesaid, the writ petition is partly allowed. The award is modified to the extent that the respondent No.2 shall be reinstated as a driver in the bank and would be entitled to 25% of the back wages from the date of his termination till the date of his reinstatement which shall be computed @ Rs.1800/- per month. It is also made clear that the bank would pay the wages attached to the post of driver from the date of his reinstatement. The reinstatement shall be carried out within one month from today.
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