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(1991) 2 MLJ 93
A.S. Anand, C.J.
The State Bank Of India, Represented By Its Chief General Manager
Versus
The Presiding Officer, Central Government Industrial Tribunal And Anr.
Decided On : 19/7/1990
W.A.No.494 of 1986
INDUSTRIAL DISPUTES ACT - SECTION 25-F AND 25-B - CONTINUOUS SERVICE - RETRENCHMENT - INTERPRETATION AND APPLICATION: 1. Section 25-F of the Industrial Disputes Act, 1947 (the Act) provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer without following the procedure laid down in the section. 2. Section 25-B(2)(a)(ii) of the Act provides that a workman shall be deemed to be in continuous service for a period of one year if, during the period of 12 calendar months preceding the date with reference to which calculation is to be made, the workman has actually worked under the employer for not less than 240 days. 3. The emphasis in Section 25-B(2)(a)(ii) is on the days "actually worked". Where a workman can establish that, working backwards to a period of 12 months, just preceding the date of his retrenchment, he had actually worked for a period of 240 days during those 12 months under the same employer, then notwithstanding any number of interruptions in his service on account of reasons other than those which disqualify him for getting the benefit of the fictional service, he would be deemed to have been in continuous service for a period of one year and would satisfy the eligibility qualification enacted by the Legislature in Section 25-F of the Act.
Fact of the Case:
The workman, a former soldier, was appointed as a watchman by the State Bank of India (the Bank) at its Guindy branch for a period not exceeding 180 days. After the expiry of 180 days, his services were terminated. He was subsequently given three days' work at the Adyar branch and thereafter served at the local Head Office of the Bank for a period of about four months. His services were again terminated without any notice or retrenchment compensation. The workman raised an industrial dispute, which was referred to the Industrial Tribunal for adjudication.
Finding of the Court:
The Industrial Tribunal found that the workman had served under the same employer, for a period of more than 240 days, during the period of one year preceding the date of the termination of his services and that the procedure prescribed by Section 25-F had not been followed. The Tribunal, therefore, made an Award directing the reinstatement of the workman with full back wages and incidental benefits.
Issues: 1. Whether the workman had been in continuous service for not less than one year under the Bank. 2. Whether the Bank had followed the procedure laid down in Section 25-F of the Act before terminating the workman's services.
Ratio Decidendi: 1. The Court held that the workman had satisfied the requirements of the law to be entitled to the benefit given to him by the Industrial Tribunal through its award. The Court found that the workman had actually worked for a period of more than 240 days during the preceding 12 months under the Bank, despite interruptions of his services during the said period of 12 preceding months. 2. The Court held that the Bank had not followed the procedure laid down in Section 25-F of the Act before terminating the workman's services. The Court found that the Bank had not given the workman any notice or retrenchment compensation.
Final Decision: The Court dismissed the Bank's writ appeal and upheld the award of the Industrial Tribunal.
A.S. Anand, C.J.
1. The ambit and scope of Section 25-F read with Section 25-B of the Industrial Disputes Act, 1947 (hereinafter called the Act) is the pivotal question requiring determination at our hands in this writ appeal. The circumstances leading to the filing of the appeal need a notice at the threshold.
2. The following industrial dispute between a workman and. the Management of State Bank of India, Madras, was referred to the Industrial Tribunal, Madras for adjudication under Section 10(1)(d) of the Act by Government of India, vide order No. L-12012/209/80-D.II-A, dated 30th July, 1981:
Whether the action of the Management of State Bank of India, Madras in terminating the services of Shri A. Perumal, Ex-watchman with effect from 21.5.1979 is justified? If not, to what relief is the workman concerned entitled?
3. The cause of Perumal had been espoused by the second respondent herein. According to the case of the workman, he after serving in the Indian Army, as a driver, for about 15 years was discharged from the Army on 4th April, 1978, where after he got himself registered with the Ex-servicemen Welfare D.S.S. and A. Board.
4. The workman was appointed as a substitute Watchman by the State Bank of India at their branch at Guindy on 9th May, 1978 and served there till 22nd December, 1978. Prior to being so appointed, he was asked to furnish a declaration to the effect that he had not served the State Bank of India in any temporary capacity earlier and the necessary declaration was furnished by him. After 22nd December, 1978, he worked at the Adyar Branch of the State Bank of India for three days, viz., 13th, 14th and 15th January, 1979 and thereafter served at the local Head Office of the State Bank of India from 17th January, 1979 till 21st May, 1979. His services were terminated at the close of duty hours on 21st May, 1979 without any rhyme or reason. At the time of termination of his services, however, he was neither given any notice nor any retrenchment compensation. He, therefore, raised an industrial dispute, which, on the failure of conciliation proceedings, came to be referred for adjudication to the Industrial Tribunal as notice above. In the claim petition filed by the workman before the Industrial Tribunal, he, inter alia, averred that:
He was appointed by the respondent Bank as a watchman in their branch at Guindy from 9.5.1978 and he was retained there till 22.12.1978. Thereafter he was given three days work namely on 13,14 and 15th January, 1979 at their Adyar Branch. Subsequently, he was employed by the respondent at their local Head Office from 17.1.1979 till 21.5.1979. The respondent Bank without any rhyme or reason terminated the services of A. Perumal at the close of duty hours on 21.5.1979. At the time of termination he was neither given any notice nor any compensation was offered to him, and urged that since he has put in 279 days within a period of 12 months between 9th May, 1978 and 21st May, 1979, his services could not be terminated without following the procedure prescribed by Section 25-F of the Act, notwithstanding the interruptions of his services by the management on two occasions.
5. The claim of the workman was resisted by the Management and inter alia it was pleaded that since the Guindy Branch of the State Bank of India was in need of a temporary watchman, the workman was appointed, on the basis of his application with effect from 9th May, 1978 and was specifically informed at the time of his temporary appointment that the period of his temporary engagement by the Bank might not exceed 180 days: that before the expiry of 180 days, his services were terminated on 12.12.1978 and his accounts settled: That his subsequent appointments for three days at the Adyar Branch and during 17.1.1979and 21.5.1979 at the Head Office were fresh appointments, unconnected with his earlier appointment at the Guindy Branch which had come to an end on 22.12.1978. According to the Management, the employment
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