The Management of Central Bank of India v. The Presiding Officer, Industrial Tribunal of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.06.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.7363 of 2000The Management of Central Bank of India,rep. By its Regional ManagerP.B.No.377, Raheja Complex,III Floor,834, Anna Salai,Chennai-600 002... Petitioner Vs.1.The Presiding Officer, Industrial Tribunal of Tamil Nadu, Chennai.2.The Workman, rep. By the General Secretary, Central Bank of India Staff Union, 56, Canal Bank Road, C I T Nagar, Chennai-600 035... Respondents This writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito call for the records of the first respondent in ID No.83 of 1998and quash its award dated 21.10.1999. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co.For Respondents : Mr.K.M.Ramesh for R2ORDERThe petitioner is the management of Central Bank of Indiarepresented by its Regional Manager. The petitioner has filed thepresent writ petition aggrieved by the Award passed by the firstrespondent Industrial Tribunal in I.D.No.83/98 and seeks for settingaside the Award, dated 21.10.1999. https://hcservices.ecourts.gov.in/hcservices/

2.By the impugned Award, the first respondent IndustrialTribunal directed the appointment of one R.Kanagaswamy as a permanentsub staff from 30.3.1991, which is the date on which four othercandidates were appointed by the Bank. The Bank was also directed topay full wages with continuity of service and other attendantbenefits. The writ petition was admitted on 12.6.2000. Pending thewrit petition, this court granted an interim stay with a condition tothe petitioner bank to deposit full backwages. Subsequently, a vacatestay petition was filed by the second respondent trade union in WMPNos.18220 of 2000 along with WMP No.18221 of 2000 for a direction.This court by an order, dated 8.3.2001 noted that an amount ofRs.3,60,000/- was already deposited to the credit of the ID and theinterim stay was made absolute with a condition that the managementshould comply with Section 17-B of the ID Act by paying last drawnwages to the workman Kanagaswamy. Out of the amount in deposit, theworkman was permitted to withdraw Rs.60000/- and the balance amountof Rs.3,00,000/- was directed to be deposited in any one of thebranches of the petitioner bank for a period of three years. Theworkman's monthly wages was quantified as Rs.1707/- and payment wasto be made from April, 2001 and arrears of Rs.18,780/- on thataccount was directed to be paid to the workman.3.Subsequently, the union filed a modification application inWMP No.28779 of 2004. When that application came up, this court by anorder dated 1.11.2004 modified the order and allowed the workman towithdraw another Rs.50000/- and the rest of the amount was directedto be kept in fixed deposits. When the matter came up for hearing on21.10.2009, it was informed to this court that both parties wereattempting for an out of court settlement. Therefore, the matter wasadjourned from time to time. While the workman was willing to forego50% of backwages as ordered by the Tribunal, the management by aletter dated 12.10.2009 was willing for a compromise if the workmanwas willing to forego his full backwages. In view of difference ofopinion between the parties, compromise could not be effected and thematter was argued. 4.Mr.S.Ravindran learned counsel for the petitioner bankcontended that the impugned Award of the Tribunal suffered frommanifest irregularity, inasmuch as what was referred for adjudicationwas not considered, but the impugned Award came to be passed. Thereference order clearly stipulated that the Tribunal should decidewhether the action of the management bank in not allowing the workmanKanagaswamy for written test even after issuing the hall ticket waslegal and proper. Whereas the Tribunal by its impugned Award not onlydid not adhere to the terms of reference in terms of Section 10(4) ofthe ID Act, but straightaway directed his reinstatement withbackwages. Any selection has to be made only by the bank that tooafter examination. But, in the present case, the direction given bythe tribunal in the impugned Award is totally without jurisdiction https://hcservices.ecourts.gov.in/hcservices/ and the Tribunal cannot act as the appointing authority. First ofall, there was no termination so as to enable the tribunal toreinstate the workman that too with full backwages. 5.However, it must be noted that it is not the case of anyindividual non employment, but a collective dispute raised by thesecond respondent union. When the examination held for recruitment ofsub staff and when the workman was given hall ticket, but he wasprevented from appearing for examination, it will be too late for theTribunal to direct the bank to recruit the workman after he underwentanother test. On the other hand, having regard to the nature of postand the lis between the parties, the tribunal can consider the truescope of the order of reference. Under Section 10(4) of the ID Act,the tribunal can decide matters incidental to the points of disputefor adjudication. The court has held that in Minimax Vs. Its Workersreported in 1968 (1) LLJ 369 that the industrial adjudicator mustattempt to consider the reference not too technically or in apedantic manner, bur fairly and reasonably. 6.A similar view was expressed in Express Newspapers Vs. Workmenand Staff reported in 1962 (2) LLJ 227. The Tribunal in a given casecan look into the pleadings of the parties to find out the exactnature of dispute because in most cases the order of reference is socryptic i.e. impossible to cull out the issue about which parties areat variance leading to trouble as held by the Supreme Court in DelhiCloth & General Mills Co. Ltd. v. Workmen reported in AIR 1967 SC469.7.Therefore, in the present case, the tribunal kept itself wellwithin the ambit of reference and had approached the issue in acorrect perspective. The Tribunal found in paragraph 11 of the Awardthat as per Ex.W.7 settlement and Ex.W.8/Ex.M.9 circulars, alltemporary employees who worked for 60 days on temporary basis shouldhave been called for test. They did not call the workman Kanagawamyto appear for test. The contention that they have receivedEx.W.8/Ex.M.9 much after the recruitment was not accepted, since noproof was produced by the Bank. In fact, the tribunal indicated theterms of settlement in Ex.W.7 itself clearly indicated the course tobe adopted and it does not require any further circular. Therefore,it held that the workmen not being called for test was not justified.The contention that persons who were selected were seniors to thepetitioner was also rejected. It was found that it was a lame excuse.Even on the question of seniority, the tribunal held that Delliraniand Parimala who were far juniors to the non selected candidates, butwere selected on the basis of test and interview and on the basis ofmerit. Therefore, the introduction of seniority principle was notaccepted. The tribunal found that if the workman was given permissionto write examination on 7.11.1990 or 26.3.1991, he would have got anopportunity to prove his ability and his chance of success was notruled out. In the hall ticket issued to the workman on 14.2.1990, it https://hcservices.ecourts.gov.in/hcservices/ was indicated that the date and venue for the proposed test was to beintimated to him. But they failed to notify the date and venue of theexamination. It is under these circumstances, the Tribunal afterfinding that the workman was already 39 years old and that he cannotseek employment elsewhere because of his age and recruitment norms,gave its Award. By the impugned Award, dated 21.10.1999, it haddirected his reinstatement rather ordering for any further test andput the workman for a further agony. This court do not find anyinfirmity or illegality in the impugned Award. 8.As per the correspondence produced, the difference between theparties was only with regard to the quantum of backwages. While thebank was willing to consider his reinstatement provided he agreed toforego full backwages, but the workman was ready to forego 50% ofbackwages. Therefore, the question that arises for consideration iswhether this court can modify the Award by exercise of power underArticle 226 of the Constitution of India having regard to thedifference of opinion of parties on the issue on hand.9.While this court is not willing to modify the Award withreference to reinstatement, on the question of backwages, it callsfor interference. The Supreme Court vide its judgment in RAJASTHANLALIT KALA ACADEMY Vs. RADHEY SHYAM reported in 2008 (13) SCC 248 hasheld that even in case of illegal termination, the court can orderreinstatement with full backwages, which is a normal rule. Whiledoing so, several other factors such as nature of employment beingadhoc, daily wage, temporary can also be taken into account. 10.Ultimately, as held by the Supreme Court in LAXMI RATTANCOTTON MILLS LIMITED Vs. STATE OF UTTAR PRADESH AND OTHERS reportedin 2009 (1) SCC 695, the courts in the matter of backwages mustattempt to strike balance.11.In the light of the above, this court is of the view that thepetitioner had already got Rs.1,10,000/- by virtue of interim orderof this court and also is getting monthly wages in terms of Section17B of the ID Act and therefore, he is not eligible for any furtherpayment and that will be confined to the backwages payable pursuantto the Award. However, the workman Kanagaswamy shall be reinstatedwith continuity of service and will be given notional pay fixationfrom the date of the Award till this date and continued to be paidwages. But he shall be paid wages on par with the similar placedworkmen and his entire services shall be counted for all practicalpurposes. The amount already paid as backwages will be sufficient tosatisfy the claim of the workman. The balance amount lying in thedeposit shall be withdrawn by the petitioner bank. The petitionerbank is directed to implement the Award within a period of eightweeks from the date of receipt of the copy of this order. https://hcservices.ecourts.gov.in/hcservices/

12.In the light of the above, the writ petition will standpartly allowed. However, there will be no order as to costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarvvkToThe Presiding Officer,Industrial Tribunal of Tamil Nadu,Chennai.Copy to : The Section Officer,V.R.Section, High Court, Madras.+ 1 CC to M/s.T.S.Gopalan & Co.,,Advocate,SR.40389+ 1 CC to Mr.K.M.Ramesh,Advocate,SR.40505W.P.NO.7363 OF 2000TAM(CO)EM/15.6.10