Important point
Principles of res judicata may not disqualify the respondent from contending that his termination was invalid, nevertheless non raising of the issue earlier was a factor which the tribunal should have taken into consideration in weighing the evidence.

Headnote:(i) Labour Law—Industrial Disputes Act, 1947—Sections 2(oo), 25G, 25H, 33-C—Industrial Disputes Central Rules—Rules 3 and 78—Termination of services of a subordinate staff by management of State Bank of India—Bank not considering him for further employment—Challenged—Respondent was employed as a messenger on a daily wage in a branch of appellant Bank—No appointment letter was issued to him but he worked for 87 days in that capacity—Whether Labour Court was justified in holding that termination of respondent’s service was violative of Section 25G of the Act—(No)—In first appeal, respondent had raised no allegation of violation of Section 25G in his statement of claim—Neither of the respondents had offered themselves for re-employment.
       Held : Section 25G requires the employer to "ordinarily retrench the workman who was the last person to be employed in a particular category of workman unless for reasons to be recorded the employer retrenches any other workman". This "last come first go", rule predicates. 1) that the workman retrenched belongs to a particular category; 2) that there was no agreement to the contrary; 3) that the employer had not recorded any reasons for not following the principle. These are all questions of fact in respect of which evidence would have to be led, the onus to prove the first requirement being on the workman and the second and third requirements on the employer. Necessarily a fair opportunity of leading such evidence must be available to both parties. This would in turn entail laying of a foundation for the case in the pleadings. If the plea is not put forward such an opportunity is denied, quite apart from the principle that no amount of evidence can be looked into unless such a plea is raised. (Para 13)
       The Tribunal ignored the fact that there was no pleading by the respondent in support of an alleged violation of Section 25G. Indeed the order of reference by the Central Government did not also refer to Section 25G but only to Section 25H. In the circumstances it was not open to the Tribunal to "go off on a tangent" and conclude that the termination of service of the respondent was invalid because of any violation of Section 25G by the appellant. Besides the Tribunal in both appeals did not consider the plea of 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 messenger in place of the respondent. (Paras 15 and 16)
       In fact pursuant to settlements entered into between the appellant and the employees’ union, several advertisements had been issued by the appellant offering re-employment to retrenched workers. It may be that these facts were not raised by the appellant either before the Tribunal or the High Court. (Para 20)
       In the circumstances, the award of the Tribunal and the decision of the High Court holding that the respondent’s services were wrongfully terminated were both incorrect. They are accordingly set aside. There is as such no question of payment of any back wages. Additionally the only other reason given by the High Court for directing reinstatement of the respondent in the second appeal was based on an equitable consideration of the respondent having allegedly been reinstated. The factual basis for this conclusion was erroneous. (Para 27)
       (ii) Industrial Disputes Act, 1947—Section 2(ra)—Unfair Labour Practice—Appointments on daily wages—Not a case of unfair labour practice when.
       Held : The conclusion of the Tribunal in both appeals that the circulars endorsed an unfair labour practice being followed by the appellant or that the appellant had indulged in unfair labour practice was also incorrect. Unfair labour practice has been defined in Clause (ra) of Section 2 of the Act as a meaning any of the practices specified in the Fifth Schedule. The Fifth Schedule to the Act contains several items of unfair labour practices on the part of the employer on the one hand and on the part of workmen on the other. The relevant item is Item 10. (Para 22)

JUDGMENT

Ruma Pal, J.—Leave granted.

2. The respondent was employed as a messenger on a daily wage in a branch of the appellant Bank. No appointment letter was issued to him but he worked for 87 days in that capacity. The question in this appeal is whether the Labour Court had correctly found that the termination of the respondent’s service in 1982 was violative of Section 25G of the Industrial Disputes Act, 1947 (referred to as the ‘Act’).

3. After the respondent ceased to serve with the appellant on 5th October, 1982, the respondent raised a demand under Section 33-C(2) of the Act before the Labour Court praying for an amount of Rs. 148.74 towards his wages for 8 days holidays (including Sundays) which occurred during the period of his employment. The appellant accepted the demand and paid an amount of Rs. 155.23 to the respondent which was accepted by the respondent in full and final satisfaction of his claim. About one year later, in 1984, the respondent raised an industrial dispute claiming that his services had been wrongfully terminated by the appellant. The Central Government referred the following disputes to the Industrial Tribunal:

"Whether the action of the management of State Bank of India, Region-III, Lucknow, in relation to their Gonda Main Branch in terminating the services of Shri Rakesh Kumar Tewari, subordinate staff with effect from 6.10.1982 and not considering him for further employment under Section 25H of the Industrial Disputes Act is justified? If not, to what relief is the concerned workman entitled?"

The respondent filed a statement before the Tribunal in which he claimed that he had been appointed by the appellant as a whole time employee against a vacancy in a permanent post. He said that after his discharge other employees were taken in service against the same post, but he was not given a chance to continue. He challenged the non-issue of appointment and termination letters as being in violation of "service conditions provided in different bank awards as well as bipartite settlement". It was alleged that the bank had violated the provisions of Section 25H of the Act and also paragraph 497 of the Shastri Award which was applicable to the Bank.

4. The appellant filed a written statement opposing the claim of the respondent. A preliminary objection raised was that after recording of full satisfaction of his claim against the appellant, the respondent was barred by the principles of res judicata from raising an industrial dispute. On the merits of the case it was contended that the services of the respondent has been validly terminated upon the payment of all his dues. It was denied that the respondent had been appointed against any vacancy. It was stated that he was engaged against a purely "temporary/ad hoc requirement of the said branch of the bank".

5. The Labour Court found that two employees namely, Shri Pawan Kumar and Rakesh Kumar Tewari had been appointed as temporary workmen, the first between August, 1982 to December, 1982 and the second from January, 1983 to April, 1983. It was held that therefore the service of Pawan Kumar should have been dispensed with and not the respondent’s. Furthermore, according to the Tribunal, there was a clear violation of Sections 25G and 25H of the Act. It was also held that the respondent was not a casual but a temporary workman in terms of paragraph 207 of the bipartite settlement. It was held that in terms of the settlement, the bank should have maintained a register of all temporary employees and a service book and should have issued an appointment and termination letter to the respondent. According to the Tribunal 14 days notice of retrenchment was also required to be given which had not been complied with. Section 25G of the Act and Rule 78 of the Industrial Disputes Act Central Rules was held to have been violated. Circulars issued by the Management being circulars Nos. 168/76 and 69/81 which prohibited the employment of temporary employees beyond 90 days a

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2006 Supreme(SC) 9

Important pointPrinciples of res judicata may not disqualify the respondent from contending that his termination was invalid, nevertheless non raising of the issue earlier was a factor which the tribunal should have taken into consideration in weighing the evidence.

Cases Referred (9)

Important point
Principles of res judicata may not disqualify the respondent from contending that his termination was invalid, nevertheless non raising of the issue earlier was a factor which the tribunal should have taken into consideration in weighing the evidence.