The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18071 of 2020 Managing Director, State Bank of India, Mumbai and another …. Petitioners -Versus- Kundan Luha and others …. Opp.Parties Advocates appeared in this case: For Petitioners : Mr. P.K. Mohanty, Sr. Advocate For Opp.Parties : Mr. R.N. Debata, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA
Legal Reasoning
AND THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ---------------------------------------------------------------------------- Date of hearing and Judgment: 22nd April, 2024. ---------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Under challenge is award dated 30th October, 2019. It appears therefrom, the workman was disengaged from his service. He alleged, the disengagement was after 13 years of continuous service, in violation of sections 25-G and 25-N in Industrial WP(C) no.18071 of 2020 Page 1 of 9 Disputes Act, 1947. His contention, found in impugned order is, management-bank has more than 300 employees in the headquarters at Sambalpur. 2. Mr. Mohanty, learned senior advocate appears on behalf of petitioner (management). He submits, his client is the commercial branch of the bank in Sambalpur city. It obtained services from opposite party no.1 (workman) on an intermittent basis, as sweeper. His client is complying with provision in section 17-B of Industrial Disputes Act, 1947. 3. He draws attention to chapter V-B to submit, his client does not come within meaning of industrial establishment under section 25-K, when read with the Orissa Act 6 of 1983, effective 21st February, 1983. Furthermore, by impugned award dated 30th October, 2019 reinstatement was directed. The Supreme Court has settled the position on reinstatement, to be on exception. 4. Mr. Mohanty submits, there was no evidence adduced regarding number of employees in Sambalpur (SME) branch of his client, where the workman used to be engaged. He draws attention to several documents. Firstly, letter dated 11th August, 2006 from the WP(C) no.18071 of 2020 Page 2 of 9 workman. He stated therein he was working at the branch since its opening on 11th July, 1997. Relied upon sentence is reproduced below. “A) That I am working at this Branch since the opening of the branch i.e. 11th July, 1997 as a sweeper on 1/3rd basis covering total of 18 working hours per week.” 5. Referring to section 25-K read with the Orissa amendment he submits, this section cannot be made applicable to his client operating the Branch. He draws attention to definition section 25-L in chapter V-B. He submits, the branch of his client does not come within meaning of industrial establishment given by the section. He then draws attention to definitions section 2 (ka) in the Act for definition of industrial establishment or undertaking. He places emphasis on sub-clause (ii) in section 25-L, clause (b) to submit, in event it is held that section 25-K applies to his client’s said branch, it must be treated as a separate unit. As such, there is no evidence there were 300 employees working in that branch, for the workman to have obtained direction for reinstatement, by perverse finding of violation of section 25-N. He submits, impugned order be set aside WP(C) no.18071 of 2020 Page 3 of 9 and quashed. On query from Court regarding whether his client will pay compensation he submits, huge amount of money has already been paid to the workman as relief under section 17-B. He relies judgment of the Supreme Court in Jagbir Singh v. Haryana State Agriculture Marketing Board, reported in (2009) 15 SCC 327, inter alia, paragraph-7 (Manupatra print) reproduced below. “7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instated of reinstatement has been held to meet the ends of justice.” 6. Mr. Debata, learned advocate appears virtually for opposite party no.1 (workman). He submits, his client was made permanent. He draws attention to pages-35 and 37 in the writ petition to demonstrate it. Subsequently he was retrenched. He then refers to WP(C) no.18071 of 2020 Page 4 of 9 his client’s evidence-on-affidavit, paragraphs-8 and 9 to submit, evidence was adduced by his client on violation of section 25-N. Paragraphs-8 and 9 from the evidence-on-affidavit are produced below. “8. That Shri Suresh Singh at SBI Evening Branch, Sambalpur, Shri Munu Lal at SBI Maltigunderpur Branch, Sambalpur, Shri Hiralal Bhoi, at SBI Budharaja Branch, Shri Mahadev Kalet, at SBI Daily Market Evening Branch, Rourkela, Shri Nila Madhab Dehuri, at SBI Khetrajpur Branch and many others were working like me as “Sweeper” and receiving 1/3rd salary. But they were given full time salary by the management from 2006. But I was discriminated by the management by not extending the full time salary benefits to me. 9. That during 1999 Shri Ram Chandra Kachhap, Shri Ram Chandra Meher and Shri Ramesh Hara were appointed as messengers by the management. The post of “messenger” and “sweeper” are same rank. The said persons are working till date.” (emphasis supplied) WP(C) no.18071 of 2020 Page 5 of 9 On query from Court we have ascertained from Mr. Debata there was no evidence adduced before the Tribunal by his client regarding number of employees in SME branch of the bank. 7. Mr. Debata submits further, no contention was pleaded nor argued in the Tribunal, of the bank not being an industrial establishment for chapter V-B to not apply to it. Furthermore, cause of retrenchment was not disclosed to his client. Management witness in cross-examination alleged the cause. The award was duly made on there being no relevant cross-examination. The writ petition be dismissed. 8. We accept submission made on behalf of the workman that contention of the management regarding chapter V-B not applicable to it was not raised before the Tribunal and cannot be raised before us in judicial review. We are to see that the award was duly made, as does not contain perversity. Accordingly, we cannot look for something that was not contended in the Tribunal, to interfere in
Decision
judicial review. The writ petition, not being an appeal on merits, it cannot be said that a point of law can be raised at this stage. However, the finding on fact that management-bank has more than WP(C) no.18071 of 2020 Page 6 of 9 300 employees in Sambalpur headquarter can be looked into in judicial review. 9. Regarding the workman’s claim of having been made a permanent employee, same does appear from the documents disclosed. Page-35 in the writ petition is document dated 3rd March, 2006 of the bank in respect of conversion of part-time employees. Clause (c) under first paragraph talks about conversion of, inter alia, all part-time employees in 1/3rd scale of pay as on 31.12.2005. It falls in line that bio-data in respect of the workman (at page-37) says by serial no.7, scale wages drawn at the time of permanent appointment. In the facts we have to see the contention of the workman, upheld by the Tribunal that there was retrenchment by violation of provision in section 25-N. 10. As aforesaid the finding of fact regarding there being more than 300 employees in Sambalpur headquarter of management-bank can and is subject matter of this judicial review. We find omission of the workman to have adduced evidence regarding number of workmen working in the branch. It follows, there was no cross- examination. Accepting Mr. Mohanty’s submission that the SME WP(C) no.18071 of 2020 Page 7 of 9 branch is to be treated as a unit under sub-clause (ii) in clause (b) of section 25-L, the finding of more than 300 employees in the branch appears to be based on no evidence. We appreciate the workman may not have had access to relevant records of the bank in respect of number of employees working at that branch. However, the workman was not remediless inasmuch as he could have applied to summon appropriate officer of the bank as his witness and also for the Tribunal to pass necessary order or direction for production of relevant documents at the trial. 11. Impugned award is set aside with direction of remand, for the Tribunal to ascertain on fact, number of employees working in SME branch of the bank at Sambalpur as on date of retrenchment (30th October, 2010). The Tribunal, upon finding the fact will then proceed to adjudicate on the allegation regarding violation of section 25-N. For the purpose the parties may adduce further evidence. Parties will forthwith produce website copy of this judgment before the Tribunal, for it to adjudicate on remand as directed. Considering our direction is for remand, it is not necessary for us to deal with Jagbir Singh (supra). It is expected that the case will be disposed of by the Tribunal within three months of communication. Registry WP(C) no.18071 of 2020 Page 8 of 9 will communicate website copy of this judgment and return original record of the Tribunal, to it. 12. The writ petition is disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Gs/Radha Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: ohc Date: 23-Apr-2024 14:59:58 WP(C) no.18071 of 2020 Page 9 of 9