State Bank of Bikaner & Jaipur, (A Subsidiary of State Bank v. Sudha Ratan Singh

====================================================== Letters Patent Appeal No. 918 of 2011 In Civil Writ Jurisdiction Case No. 6232 of 2003 ====================================================== Sudha Ratna Singh, S/O Sri Umapati Narayan Singh, resident of P.R.D.A. 2 Patna High Court LPA No.589 of 2011 (10) dt.05-12-2012 No. B4/304 near A. N. College, Sri Krishnapuri, P.S. Sri Krishnapuri, District-Patna. .... .... Petitioner/Appellant Versus 1. The Union of India, through the Secretary, Ministry of Labour Shramsakti Bhawan, Parliament Street, New Delhi.

#2. Presiding Officer, Central Govt. Industrial Tribunal-cum-Labour Court No. 1, Dhanbad (Jharkhand).

#3. Assistant Labour Commissioner (Central) Mauryalok Complex, New Dakbunglow Road, Patna- 800001.

#4. State Bank of Bikaner & Jaipur, Tilak Marg, C-Scheme Jaipur, Rajasthan.

#5. The Branch Manager, State Bank of Bikaner and Jaipur, R- Block Branch, Patna. .... .... Respondents /Respondents ====================================================== Appearance : (In LPA No.589 of 2011) For the Appellant/s : Mr. S.D. Sanjay, AAG 12& Mr. Akash Chaturvedi, Advocate. For the Respondent/s : Mr. Panditjee Pandey and Mr. Nawnit Kumar Tiwary, Advocates (In LPA No.918 of 2011) For the Appellant/s : Mr. Pandit Jee Pandey & Mr. Nawnit Kumar Tiwary, Advocates For the Respondents-Bank : Mr. S. D. Sanjay, AAG 12 & Mr. Akash Chaturvedi, Advocate. For the Respondets-U.O.I. : Mr. Binay Kumar Pandey, CGC ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 3 Patna High Court LPA No.589 of 2011 (10) dt.05-12-2012 (Per: HONOURABLE THE CHIEF JUSTICE) 10 05-12-2012 Feeling aggrieved by the judgment and order dated 9th February 2011 passed by the learned single Judge in C.W.J.C No. 6232 of 2003, the respondent-State Bank of Bikaner & Jaipur (hereinafter referred to as the ‘Bank’) has preferred above Letters Patent Appeal No. 589 of 2011 and the petitioner workman has preferred the above Letters Patent Appeal No. 918 of 2011 under Clause 10 of the Letters Patent. The writ petitioner, one Sudha Ratan Singh (hereinafter referred to as ‘the workman’) was employed by the Bank in its R-Block, Branch, Patna as a Clerk-cum-Cashier. The workman worked as Clerk-cum-Cashier in the above referred R-Block, Branch from 17th December 1984 to 6th March 1985; for around 80 days. Feeling aggrieved by discontinuation of his service, the workman raised an Industrial Dispute. The same came to be referred to the Central Government Industrial Tribunal No.-1, Dhanbad and registered as Reference Case No. 92 of 1993. The workman complained that he was retrenched from service and that his retrenchment was in contravention of Section 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘Act’). The claim was contested by the Bank. According to the Bank, the workman was engaged by the Branch Manager for the specified period. On expiry of the specified period, the service of the workman stood terminated. The workman, therefore, cannot be said to have been retrenched from service; nor Section 25-G or 25-H of the Act would be attracted. The workman did not produce the appointment order but he supported his claim by oral evidence. 4 Patna High Court LPA No.589 of 2011 (10) dt.05-12-2012 The Bank also supported its defence by oral evidence of one Sanjay Kumar Singh, the Branch Manager who had appointed the workman. Before the tribunal he admitted that he had made the appointment of the workman temporarily for specified period to clear the work load and that on expiry of that specified period, the service of the workman stood terminated. He admitted that he was not authorized to make regular appointment and that selection for regular appointment would be made by the Banking Service Recruitment Board alone. He also admitted that no procedure was followed for temporary arrangement. The tribunal, considering the evidence on record, under its award dated 1st March 2010, rejected the claim of the workman. Feeling aggrieved, the workman approached this Court in above C.W.J.C No. 6232 of 2003. The learned single Judge has allowed the writ petition. The learned single Judge has held that the Bank had failed to discharge its obligation to prove that the workman was temporarily engaged for specified period. The learned single Judge has relied upon the judgment of the Hon’ble Supreme Court in the matter of S.M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka [(2003) 4 SCC 27]. In view of its finding, although the learned single Judge has allowed the writ petition and has set aside the award of the tribunal, in view of the passage of time no order for reinstatement in service and back wages has been made by the learned single Judge. Instead, the learned single Judge has directed the Bank to pay a sum of Rs. 1 lakh to the workman by way of compensation in lieu of reinstatement in service and back wages. Feeling aggrieved, the Bank has preferred the Letters 5 Patna High Court LPA No.589 of 2011 (10) dt.05-12-2012 Patent Appeal No. 589 of 2011 and the workman has preferred the Letters Patent Appeal No. 918 of 2011. Learned Additional Advocate General Mr. S.D. Sanjay has appeared for the Bank. He has submitted that the learned single judge has erred in holding that the workman was retrenched within the meaning of Section 2(oo) of the Act. He has submitted that as admitted by the Branch Manager, the appointment of the workman was made temporarily for the specified period. On expiry of the said period, his employment came to an end. The workman, therefore, cannot be said to have been retrenched. The question of violation of Section 25-G or 25-H would not arise. In support of his submission Mr. Sanjay has relied upon the oral evidence of the workman and the Branch Manager. Learned advocate Mr. Pandit Jee Pandey has appeared for the workman. He has supported the judgment of the learned single Judge. He has relied upon Sections 25-G and 25-H of the Act and Rules 77 and 78 of the Industrial Disputes (Central) Rules,

#1957. He has submitted that it was the duty of the Bank to notify the seniority list on the notice Board. In absence of the seniority list, the workman had no occasion to know his position in the seniority list. He could not, therefore, make out specific case of violation of Section 25-G of the Act. In the matter of S.M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka (supra) the workman was a daily wage employee. In view of the nature of the employment of the workman the Hon’ble Supreme Court has observed, “the engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being 6 Patna High Court LPA No.589 of 2011 (10) dt.05-12-2012 engaged in a scheme or project which was to last only for a particular length of time or up to the occurrence of some event, and therefore, the workman ought to know that his employment was short-lived.” In the present case, the workman was a Clerk-cum- Casher in the Bank. He has admitted in his oral evidence that he was not appointed by following due procedure or through the recruitment process undertaken by the Banking Service Recruitment Board. Although, he may have been appointed on a permanent post, the appointment of the workman was certainly not regular appointment. It is true that neither the workman nor the Bank has produced the appointment letter on the record. However, in view of the oral evidence made by the workman, it cannot be gainsaid that the workman was appointed temporarily for the specified period. Discontinuation of service of the workman, on expiry of the specified period, would, therefore, come within the exception contemplated under Sub-Clause (bb) of Section 2(oo) of the Act. The action, therefore, would not amount to retrenchment within the meaning of Section 2(oo) of the Act. Let us believe for a moment that the workman was indeed retrenched within the meaning of Section 2(oo) of the Act; even then, the workman has failed to make out the case of violation of provisions contained in Sections 25-G and 25-H of the Act. Admittedly, the workman has not served for more than 80 days, Section 25-F of the Act would, therefore, not be attracted. As to the infarction of Sections 25-G and 25-H of the Act; the workman has failed to set up a claim that any person 7 Patna High Court LPA No.589 of 2011 (10) dt.05-12-2012 junior to him was retained in preference to the workman. In absence of specific case of violation of Sections 25-G and 25-H of the Act set up by the workman, the action of the Bank could not have been held violative of Sections 25-G and 25-H of the Act. For the aforesaid reasons, we hold that the workman has failed to establish the case of retrenchment or violation of Sections 25-G or 25-H of the Act. The learned single Judge has failed to appreciate that the onus to prove the retrenchment in contravention of any provision of the Act lay on the workman. For the aforesaid reasons, we allow the Letters Patent Appeal No. 589 of 2011. Impugned judgment and order dated 9th February 2011 passed by the learned single Judge is set aside. C.W.J.C No. 6232 of 2003 is rejected. The judgment and award dated 1st March 2002 passed by the Central Government Industrial Tribunal-1, Dhanbad in Reference No. 92 of 1993 is restored. Interlocutory Application No. 2669 of 2011 stands disposed of. Letters patent No. 918 of 2011 is dismissed. (R.M. Doshit, CJ) Prakash/- (Ahsanuddin Amanullah, J)