Branch, Jaipur v. Cum-Labour Court, Jaipur

Order 11/09/2025

1. The present writ petition has been filed by petitioner, under Articles 226 and 227 of the Constitution of India while assailing the impugned award dated 21.09.2000 passed by the Central Government Industrial Tribunal-cum-Labour Court, Jaipur (here- inafter referred to as "learned Tribunal"), in Case No. C.G.I.T-B- 14/1998.

2. Brief facts giving rise to the present writ petition are that the Central Government referred an industrial dispute under Section 10(1)(d)&(2A) Clause (d) of Section 10(2A)(1) of the Act of 1947 for adjudication of the following question: "Whether the action of the management of Central Bank of India in termination of the services of Shri Mahesh Singh with effect from 16.09.1995 and employing junior workmen without giving him any opportunity of employment in viola- [2025:RJ-JP:37090] (2 of 7) [CW-676/2002] tion of Section 25H of the Act of 1947 is legal and justified? If not, to what relief the said workman is entitled and from which date?"

3. Thereafter respondent No.2 filed a statement of claim alleg- ing that he was appointed as a Peon-Cum-Water Boy at Central Bank of India, Jaipur (M.I. Road Branch). It was further stated that respondent No.2 had worked from 15.12.1994 to 31.01.1995 and again from 01.02.1995 to 09.07.1995, and thus he had com- pleted more than 240 days of service during the period preceding the date of termination. It was further alleged that services of re- spondent No.2 were terminated vide oral order dated 16.09.1995 in violation of the provisions of Section 25F, 25G, and 25H of the Act of 1947 as well as Rule 77 and 78 of the Rules of 1957 framed thereunder. Accordingly, it was prayed that the order of termina- tion be declared illegal and void, and respondent no.2 be rein- stated in service with full arrears along with all consequential ben- efits.

4. Petitioner filed a reply to the said claim and denied the aver- ments made in the statement of claim. It was further stated that the respondent No.2 was engaged on a contractual, daily-wage/ad hoc basis, and had, in fact, worked only for 156 days, i.e., from

08.08.1994 to 14.12.1994 and from 10.07.1995 to 15.09.1995. It was contended that there was no violation of the provisions of the Industrial Disputes Act. The factum regarding other employees, namely Babulal, Tarachand, Rakesh, and Sakir, was also disputed. Accordingly, it was prayed that the statement of claim be dis- missed.

5. On the basis of pleadings of parties, the following five issues were framed by the learned Tribunal for adjudication: [2025:RJ-JP:37090] (3 of 7) [CW-676/2002] "(1) Whether the respondent No.2 (non-petitioner No.2) was appointed as a permanent employee in the Bank against the post of sub staff? (2) Whether the non-petitioner No.2 served continuously from 08.08.1994 to 15.09.1995? (3) Whether the Bank has violated the provisions of Section 25 F, G, H of the Act of 1947 and the Central Rules 1957, Rule 77 and 78? (4) Whether non-petitioner No.2 did not come for work from 13.09.1995? (5) To what relief the workman is entitled?"

6. On behalf of respondent No.2, affidavit of respondent No.2 was filed.

7. In rebuttal, petitioner-Bank filed an affidavit of Shri G. K. Sharma, Manager, MI Road Branch.

8. After hearing the arguments of both the parties, the learned Tribunal, while deciding Issues No. 1 to 4, concluded that the re- spondent No.2 was not a regular employee. Rather, he had worked only on daily wage/ad hoc basis as a Peon-cum-Water Boy. It was further held that respondent No.2-respondent failed to prove that he had worked for a period of 240 days during the twelve months preceding the date of termination. There was also no evidence on record to establish that any junior to the respondent No.2 was working at the relevant time.

9. Learned Tribunal came to the conclusion that termination of services of respondent No.2 could not be held to be illegal or un- justified. However, while dealing with Issue No. 5, it was held that on account of violation of Section 25H of the Act of 1947, read with Rule 78 of the Rules of 1957, respondent No.2 would be enti- tled to wages for the period and at the rate at which, similarly sit- uated workmen, namely Babulal, Tarachand, Rakesh, and Sakir, were paid daily wages at the Branch after the termination of re- spondent No.2’s services. Petitioner was further directed to give [2025:RJ-JP:37090] (4 of 7) [CW-676/2002] an opportunity to respondent No.2 for re-employment in accor- dance with Section 25-H of the Act of 1947.

10. Being aggrieved by the adjudication of the impugned award qua Issue No.5, the present writ petition has been filed by peti- tioner.

11. It has been contended by Mr. Rupin Kala, learned counsel for petitioner, that although the learned Tribunal has categorically held that the termination of services of respondent No.2 could not be said to be illegal or unjustified, yet in the absence of any spe- cific evidence regarding the employment of Babulal, Tarachand, Rakesh, and Sakir, no direction could have been issued under Sec- tion 25H of the Act of 1947 read with Rules 77 and 78 of the Rules of 1957. He further submitted that the respondent No.2 was not a regular employee, but merely a casual worker employed on a daily wage/ad hoc basis. It was also urged that it was incumbent upon the respondent No.2 to implead the aforesaid alleged employees or to conclusively prove their employment in the Bank, and in the absence of such evidence, the conclusion qua Issue No.5 in the impugned award could not have been sustained.

12. In order to buttress his arguments, learned counsel placed reliance upon the judgment of the Hon’ble Supreme Court in Re- gional Manager, SBI Vs. Rakesh Kumar Tewari1 and prayed that the impugned order award may kindly be set aside to the ex- tent of adjudication of Issue No.5.

13. Per contra, learned counsel for the respondent vehemently opposed the submissions advanced by learned counsel for the pe- titioner and submitted that the impugned award is just, proper, 1 (2006) 1 SCC 530 [2025:RJ-JP:37090] (5 of 7) [CW-676/2002] and well-reasoned, and therefore does not warrant any interfer- ence by this Court, and accordingly prayed for dismissal of the writ petition.

14. Heard and considered the submissions made at bar and pe- rused the material available on record.

15. A bare look to the submissions of parties reveals that the short question pose to this Court is qua the findings recorded un- der Issue No.5 of the impugned award.

16. From a bare perusal of the impugned award, it is evident that the learned Tribunal, while deciding Issue No. 1, concluded that respondent No.2 was not appointed as a regular Peon-cum- Water Boy, but had only been engaged on a daily wage/ad hoc ba- sis. Further, while adjudicating Issues No. 2 to 4, the learned Tri- bunal held that termination of services of respondent No.2 could not be said to be illegal or unjustified, for the reason that the re- spondent had failed to establish that he had worked for 240 days during the twelve months preceding the date of his termination. However, notwithstanding in the absence of any evidence on record to show that similarly placed persons were still working in the Branch on daily wages, the learned Tribunal nevertheless pro- ceeded to grant relief to the respondent.

17. As regards the relief granted by the learned Tribunal that re- spondent No.2 would be entitled to wages for the period and at the rate at which, Babulal, Tarachand, Rakesh, and Sakir were paid daily wages, it is noted that the learned Tribunal itself ob- served that there was no evidence to establish that the aforesaid persons were still working in the Branch, and that respondent No.2, during the course of his cross-examination, admitted that he [2025:RJ-JP:37090] (6 of 7) [CW-676/2002] had not seen the appointment orders of Babulal, Tarachand, Rakesh, and Sakir. Therefore, the respondent No.2 failed to prove that aforesaid persons were appointed by the petitioner subsequent to his termination. Apart from above, in the absence of any conclusive evidence or finding of unfair trade practice/vic- timization, the impugned directions ought not to have been is- sued. Since respondent No.2 was engaged only on a temporary, daily-wage, ad hoc basis, the directions qua Issue No.5 of the im- pugned award, having been passed without the requisite evidence and pleadings, cannot be sustained.

18. This view also finds support from the judgment of the Hon’ble Supreme Court in Regional Manager, SBI v. Rakesh Kumar Tewari (supra), particularly in paragraphs 17 and 18 thereof, which have been re-produced as under: "17. Besides, the Tribunal in both the appeals did not consider the plea or the appellant that there was no vacancy against which the respondent had been appointed and that it was merely an ad hoc arrangement. In taking into consideration the names of the two employees who were appointed temporarily after the termination of services of the respondent, the Tribunal did not also consider in what capacity these persons had been appointed, namely, whether they were actually appointed as messengers in place of the respondent.

18. The respondent's case in the first appeal of violation of para 497 of the Sastry Award was also wholly misconceived. That paragraph deals wit the rights of apprentices and has no application to temporary employees like the respondent. As- suming that there was a violation of the Sastry Award by the appellant in both cases either in not issuing appointment letters or not maintaining a seniority list, service-book in respect of temporary employees, etc. this would not mean that therefore the respondents had been properly appointed and their services wrongly terminated. Admittedly, no procedure whether in law [2025:RJ-JP:37090] (7 of 7) [CW-676/2002] or under any award or settlement was followed in appointing either of the respondents in both the appeals. No conditions of services were agreed to and no letter of appointment was given. The nature of the respondents' employment was entirely ad hoc. They had been appointed without considering any rule. It would be ironical if the persons who have benefited by the flouting of the rules of appointment can rely upon those rules when their services are dispensed with." (Emphasis Supplied)

19. In view of the facts stated above, this Court is of the consid- ered opinion that the directions issued by the learned Tribunal qua Issue No.5 of the impugned award, holding an alleged violation of Section 25H of the Act of 1947 read with Rules 77 and 78 of the Rules of 1957, directing petitioner to pay wages for the period during which Babulal, Tarachand, Rakesh, and Sakir were paid wages on daily basis, are perverse. Further, the direction given by the learned Tribunal to provide an opportunity of re-employment to respondent No.2 under Section 25H of the Act of 1947, is un- sustainable being not in accordance with established law, in the absence of any requisite pleading or prayer in the statement of claim. More particularly when there is no finding of unfair trade practice/ victimization and the termination was found to be valid.

20. Accordingly, the writ petition is allowed. The impugned award qua directions recorded against the petitioner under Issue No.5 are hereby quashed and set aside.

21. All pending application(s), if any, stand(s) disposed of. Seema/1 (MANEESH SHARMA),J