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ORIENTAL BANK OF COMMERCE, NEW DELHI versus THE UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Oriental Bank Of Commerce, New Delhi v. The Union Of India And Others - WRIT - C No. 20244 of 1998 [2005] RD-AH 7339 (12 December 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 31

CIVIL MISC. WRIT PETITION NO.20244 OF 1998

Oriental Bank of Commerce, New Delhi.                    .....Petitioner

Versus

The Union of India and others.                              .....Respondents

----------  

Hon'ble Bharati Sapru, J.

Heard learned counsel for the petitioner Shri W.H. Khan and Shri P.N. Saxena.  This matter is listed for admission today but it is being finally disposed of with consent of counsels.

The facts giving rise to this writ petition are like this. :-

The respondent workmen in the present case, being 25 in numbers, were engaged by the petitioner Bank on a temporary basis as clerks and peons.  The admitted position is that all the respondent workmen did not work beyond the period of 89 days.  The respondent workmen had worked during the year 1981.  The respondent workman, having been terminated after working for a period of 89 days did not raise any dispute until the year 1986 when according to them the Bank started engaging the other persons but ignored them.  They raise a dispute with regard to the violation of the provisions of Section 25 H of the Industrial Dispute Act.  Claim as setout in the W.S. is contained in paragraph-10, which is quoted herein below. :-

"10.. That fresh hands were employed after terminations of services of the petitioner but the petitioner was not taken back in service nor offered employment in the vacancies of clerks, when fresh hands were employed.  This action of the Bank was against the provisions of the modified Sastry Award/Settlement and also Section 25-H of the Industrial Dispute Act, 1947."

The Bank also filed its W.S. and stated that workmen had worked only for  limited period and did not raise any dispute from the year 1981 to 1986.

In this writ petition, the petitioner Bank has stated that none of the respondent workmen worked for more than 89 days and, therefore, the provisions of Section 25F, 25G and 25 H were not attracted.  

The petitioner Bank has also stated in paragraph-29 of the writ petition that vacancies were filled-up by the Banking Service Recruitment Board, after giving advertisements in the newspapers, which were widely published and although the contesting respondent workmen were on the recruitment process, they did not avail the opportunity of fresh employment.  

An award was passed by the Labour Court against the Bank.  The Bank filed a writ petition in this Court, which was dismissed by the High Court.  Against the dismissal of the said writ petition, the Bank filed Civil Appeal No.6587 of 1997.  

While examining the matter, the Supreme Court remanded the matter to the Industrial Tribunal, taking into account, especially the period in question during which the employments were given and re-given and were not continued.  The Hon'ble Supreme Court remanded the matter to the Tribunal to appreciate and distinguish the categories of the workman, whose claim could be placed on law as existing prior to 18.8.84 as 18.8.84 was the date of coming into new definition of retrenchment 2 "00" "bb" and the Hon'ble Supreme Court stated that this alone was the answer to the question.  

The Tribunal, while reconsidering the matter has given relief to 12 workmen, whom it has distinguished, as those who worked prior to 18.8.84.

Thus, the Tribunal has given a relief of reinstatement to those 12 workmen.    While giving its conclusion, the learned Tribunal has relied in the case of Central Bank of India vs.   1996 (74) FLR 2063, whereby the Hon'ble Supreme Court has held that the meaning of the word "retrenchment" as used in Section 25 H of the I.D. Act, 1947 should not be given a restricted meaning and would apply to all seats of retrenchment irrespective of the fact that whether the workmen has completed 240 days or not.  

Shri W.H. Khan, learned counsel for the petitioner has argued that the Industrial Tribunal, while hearing the matter on remand has failed to appreciate the judgment of the Hon'ble Supreme Court as given in the case of Central Bank of India. Vs. S.Satyam and others in its entity.  He relies in particular on paragraph-6  and paragraph -12 of the judgment.  Paragraph-12 of the judgment is quoted herein below. :-

"12. The other submission of Shri Pai, however, merits acceptance.  All the retrenched workmen involved  in the present case were employed for short periods between 1974 to 1976.  It was only in 1982 that a writ petition was filed by them to claim this benefit.  The other persons employed in the industry during the intervening period of several years have not been impleaded.  Third party interests have arisen during the interregnum.  These third parties are also workmen  employed in the industry during the intervening period of several years. Grant of relief to the writ petitioners(respondents herein) may result in displacement of those other workmen who have not been impleaded in these proceedings, if the respondents have any claim for re-employment.  The latches leading to the long delay after which the writ petition was filed in 1982 is sufficient to disentitle them to the grant of any relief in the writ petition.  Moreover, there is not even a suggestion made or any material produced to show that on the construction we have made of Section 25-H, the respondents would be entitled to get any relief in the highly belated writ petition after the lapse of several years by way of preference over any person employed during the intervening period.  In our opinion, this alone was sufficient for the High Court to decline any relief to them.  It was urged by the learned counsel for the respondents that only a limited relief has been granted to the respondents which need not be disturbed.  In our opinion, the lapse of a long period of several years prior to the filing of the writ petition is sufficient to decline any relief to the respondents."

Shri Khan has argued that firstly, the workmen did not raise the claim within the time and allowed six years before raising an industrial dispute.  He also argued that the Bank made fresh appointments by issuing regular advertisements which were widely published, but the respondent workmen chose not to participate in the fresh appointment selection process.

Shri Khan argued that under the said selection appointment process, other people had been selected and appointed and were continuing since then.  Shri Khan argued that no violation of the provisions of Section 25 H was done in the case of respondent workmen, as no persons junior to them had been engaged by the Bank.  Shri Khan also argued that those persons who had been engaged pursuant to the fresh advertisements were working with the Bank and had not been impleaded in the present proceedings and in case any disturbances were made by inducting the respondent workmen, it was no doubt lead to problems and a change of circumstances, which would be highly complicated.

Learned counsel for the respondent workmen Shri P.N. Saxena has very vehemently argued that from the plain reading of the order of the Hon'ble Supreme Court sent in remand, a very limited issue remains to be decided by the Tribunal i.e., the Supreme Court fixed 18.8.84, which was the date of coming of the provisions of Section  2 ''00' ''bb' as the cut of date  and it was the intention of the Hon'ble Supreme Court that the stipulation of having worked for 240 days would only apply in cases after 18.8.84, and thus, even though the respondent workmen had only worked for 89 days, but as they had been appointed prior to 18.8.84, the said condition would not apply and they would become entitled to reemployment under Section 25 H of the I.D. Act, 1947.

Shri P.N. Saxena has also argued that the provisions of Section 25 H are mandatory in nature and the word used in the provision is ''shall' and, therefore, it flows from a reading of the said provision that wherever Section 25 H is attracted, reemployment is a must.  He has also argued that the procedures under Rule 77 and 78 of the Industrial Dispute Rules also have to be strictly adhered to.  

Shri P.N. Saxena has very vehemently argued that the rights were in fact decided by the Supreme Court in this case and there was no question of deciding anything on merits and Hon'ble Tribunal has, therefore, rightly come to the conclusion that 12 of the workmen who were engaged prior to 18.8.84 were bound to be given employment.  

I have gone through the entire record and pleadings and I have heard both the counsels at length.  

I am  unable to agree with the submissions as made by Shri P.N. Saxena.  Section 25 H is not absolute in its terms.  It does not give a right to absolute reemployment.  The Industrial Dispute Act is social and beneficial Act made for protection of workmen.  The provisions of Section 25 H which deals with reemployment is really and truly speaking in the nature of protection to a workmen who is retrenched and to whom the Act gives an opportunity of reemployment, in case the employer has some place for his reemployment at a future date.  The word ''opportunity' means the right to be considered against future vacancies.  Time, which has passed can not be ignored.  On the date of future appointments, it can also be that the person who was to be considered for reemployment has an adequate seniority under Section 77 and 78 of the Rules may not be in a condition fit enough for reemployment.  Therefore, suitability is also to be considered.  Other intervening circumstances also are not to be ignored.  

There is substance in the submission made by Shri W.H. Khan that respondent workmen permitted time to laps.  They did not avail the opportunities of fresh employment given to them and did not appear against any of the advertisements.  In the interregnum, other persons have been appointed and those persons were not heard before this Court.  It would be wholly unfair affair to oust them without giving them any opportunity of hearing.  

Admittedly, the respondent workmen never completed 240 days of work in any given year.  The law as it stands today definitely requires that a person should have completed 240 days of service before raising any claim for reemployment or reinstatement.  

For this purpose, learned counsel for the petitioner has placed before this Court a decision of the Hon'ble Supreme Court as rendered in the case of Punjab State Electricity Board Versus Darbara Singh  2005(7) Supreme To-Day  in which the Hon'ble Supreme Court has reviewed the case with regard to the scope of ambit  of Section 2 (''oo' ''bb' ).  

The argument as made by Shri W.H. Khan, learned counsel for the petitioner with regard to the passage of time has substance.  The learned Supreme Court has also taken into consideration the passage of time in the case of Central Bank of India Vs. S. Satyam and others.  

Although in the present case, it can not be said that the respondent workmen were guilty of latches in approaching the industrial Court, yet long years have passed since respondent workmen were removed from work, i.e., to say more than 20 years.  Since there was a complete stay order in the present petition, the workmen were not even taken back from work.   It is obvious that they have served for more than 20 years without the benefit of employment in the petitioner Bank.  The respondent workmen are also probably over aged now for any fresh employment anywhere.  Besides, it would not be proper to displace those persons who are already there but not before this Court.

Although the Labour Court has come to the conclusion that 12 workmen were entitled to the benefit of provisions of 25 H, the Labour Court has not dealt with this question in specific or detail and has not declared anywhere that amongst all the workmen who have been removed from service, these 12 workmen were senior most in the seniority list as declared under Rule 77 of the Rules of 1947.  It was incumbent upon the Labour Court to call for a seniority list and to determine the rights of any of the workmen in accordance with the seniority list.  In the absence of any such examination, declaration given by the Labour Court is also bad and liable to be set aside.  

In view of the above discussions and in view of the decision of the Hon'ble Supreme Court as rendered in the case of Central Bank of India Vs. S. Satyam, the award of the Labour Court in respect of 12 workmen is set aside.  However, if the respondent workmen are still eligible to apply against any fresh vacancies, they may also be considered for reemployment.  

The petition is allowed.  However, there will be no order as to costs.  

Dated : 12.12.05

L.F.

   

       


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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