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The Management Of The State Bank Of India v. The Presiding Officer And Anr. - WRIT - C No. 15977 of 1985  RD-AH 2 (1 September 1995)
200 All.L.J. 759 :1999(4) AWC 3160
Civil Misc. Writ Petitioner No. 15977 of 1985
The Management of State Bank of India, Agra……….Petitioner
Presiding Officer and another………………………….Respondents
Hon'ble Yatindra Singh, J.
1. The State Bank of India has a branch in the Lauris Hotel, Agra (the Bank for short). There was a canteen, which was run by a contractor. Sri Govind Saran Verma (the contesting respondent) was working with the contractor as a cook. The Bank thought fit to take over the canteen and this was done on 23.5.78. The State Bank continued all employees working with the contractor on a temporary basis as an interim measure. The contesting respondent was one of them. According to the Bank the contesting respondent did not come for duty after 15.7.78 and when he did not come till 31.7.78, his name was struck off. Initially one Sri O.P.Verma was appointed on temporary basis. The regular selection was also held in which different persons including the contesting respondent appeared, but he was not selected.
2. The contesting respondent raised an industrial dispute, which was referred to the Labour Court. The contesting respondent took contradictory stand before the Labour Court about his absence. On the one hand the stand was that he was ill and he had submitted an application along with a medical certificate. On the other hand he approached the Bank on 16.7.78 and the Bank did not permit him to work. The Labour Court has not decided as to which version is correct: whether the contesting respondent did not come for work; or he went for work but was not given any; or if he was ill. The Labour Court has held that:
the name of the contesting respondent was struck off on 1st August 1978;
the contesting respondent had worked for 54 days and was not entitled for retrenchment compensation
Striking off the name of the contesting respondent is illegal, as 14 days notice under para 522.4 of the Shastri Award was not given.
In view of this finding, the Labour Court has reinstated the contesting respondent with back wages. Hence the present writ petition by the Bank.
POINTS FOR DETERMINATION
3. I have heard Sri S.N. Verma for the petitioners and Sri Shard Sharma for the contesting respondent. The following points arise for determination.
(i) What was the nature of the employment of the contesting respondent? Is he covered by the Shastri Award?
(ii) Para 522.4 of the Shastri Award permits either side to terminate the contract of service after giving 14 days of notice? Is the requirement of para 522.4 of the Shastri award a condition precedent? What is the effect of not following it? Does it render the termination invalid?.
(iii)The contesting respondent was a temporary hand. He had worked for 54 days. What amount of backwages is he entitled to?
Ist Point: NATURE OF THE EMPLOYMENT
4. The contesting respondent was working as a cook with the contractor. The canteen was taken over on 23.5.78. The Bank employed all employees who were working with the contractor on a temporary basis as an interim measure. Para 508 of the Shastri award1 classifies employees, of a bank in four categories. Admittedly, the contesting respondent was not a permanent or a probationer or a part-time employee. The only category left is that of temporary employees. The para 508 of the Shastri Award also defines ''temporary employee'. It includes a person employed temporarily as an additional employee in connection with the temporary increase in work of a permanent nature. Undoubtedly the contesting respondent was employed temporarily in connection with the work of a permanent nature. He was a temporary employee. He is covered by the Shastri Award.
2ND POINT: PARA 522.4 - CONDITION PRECEDENT.
5. The para 522 of the Shastri Award2 is in section IV of the award, which relates to procedure for termination of employment. The para 522.4 applies to all employees other than a permanent employee or a probationer; it applies to temporary employees. This paragraph contemplates that: the contract of service may be terminated from either side after 14 days' notice; and if an employee leaves service without giving such a notice he is liable for a week's pay (including all allowances). This clause does not state as to what will happen in case 14 days' notice is not given by the bank before terminating the services of a temporary employee. It is silent on this point. Is termination of service in absence of notice illegal? Or the temporary employee is entitled to damages equivalent to 14 days' wages (including all allowances) only.
6. Shri Sharad Sharma, learned counsel for the contesting respondent has cited some decisions to show that if the retrenchment compensation and a month's notice or compensation in its place is not offered then termination of the services is illegal. There is no dispute with this proposition. But do these rulings apply as far as para 522.4 of the Shastri award is concerned?
7. These rulings are in view of the language of section 25 F of the Industrial Dispute Act 1947 (the Act for short), which is different than para 522.4 of the Shastri award. Section 25-F of the Act3 lays down ''conditions precedent to retrenchment of workmen'. It uses the words, ''No workman ... shall be retrenched ... until' certain things are done. It is due to use of these words that the courts have held that one-month's notice or a month's pay in its place and the retrenchment compensation is a condition precedent. In case it is not offered then termination is illegal. Para 522.4 of the Shastri Award is differently worded than Section 25-F of the Act. It has different phraseology. The rulings or its analogy does not apply to para 522.4 of the Shastri Award.
8. The para 522.4 states that if an employee (covered by it) leaves services without notice then he is liable for a week's pay (including all allowance). This suggests that the consequence of a breach of paragraph 522.4 only renders one to be liable for damages. The employer, in case of its violation, would be liable for damages for 14 days wages (including all allowances) only. But its violation can not invalidate or render a termination of the service illegal. This is how the Supreme Court proceeded regarding similar provision in KA Barot Vs State of Gujrat4. The termination of service of the contesting respondent was not illegal; he at the most was entitled to 14 days of wages (including all allowances). The award of the labour court is illegal and is liable to be quashed.
9. In view of my finding on the second point, it is not necessary to decide the third point. The contesting respondent at the most was entitled to damages for 14 days wages (including all allowances). This court while admitting this writ petition had granted an interim order. This was later modified on 3.12.19865 and award was stayed subject to payment of some amount and salary to the contesting respondent. The petitioner has not taken back the contesting respondent in service but is paying the salary. The damage, that the contesting respondent was entitled to is much less than the amount that the contesting respondent has already received. The amount already received by the contesting respondent may be treated as damages.
10. The petitioner was a temporary employee. The para 522.4 of the Shastri Award was applicable to him. But its violation of not giving 14 days notice does not render the termination of service illegal. The contesting respondent was only entitled to 14 days wages (including all allowances) as damages. The amount paid under the interim order dated 3.12.1986 of this court may be treated as damages. The writ petition is allowed. The award dated 9.7.1985 is quashed. However, the bank will not be entitled to recover any amount, which has been paid to the contesting respondent in pursuance of the interim order passed by the court.
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