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IN THE HIGH COURT OF MADRAS
K.A. Swami, J. Kanakaraj, JJ.
A. SELVARAJ AND ANOTHER - Appellant
Vs.
THE MANAGEMENT OF INDIAN BANK - Respondent
W.A. No's. 196 and 197 of 1991
Decided On : 07-08-1996
Temporary employees who come within the said Paragraph 20.7 of the Bipartite Settlement are temporary employees and the Bank has to maintain a panel of such employees for eventual absorption in permanent vacancies, as and when such vacancies arise in the order of seniority. This is the one and only way by which the Banks can safeguard the rights of such temporary employees without offending the Rules of fairpaly and justice.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 25F, 25G, 25H, 20.7, 20.8 - TEMPORARY EMPLOYEES - TERMINATION OF SERVICE - ENQUIRY - REINSTATEMENT - DAILY WAGE WORKMEN - ARREARS OF WAGES - BIPARTITE SETTLEMENT - INTERPRETATION - COURT ANALYSIS AND CONCLUSION - The court held that the termination of service of the appellants was by way of punishment and consequentially held that any such termination cannot be undertaken without a proper enquiry and without giving due opportunity to the appellants. The court also held that the appellants are entitled to the benefit of Paragraphs 20.7 and 20.8 of the Bipartite Settlement and that the respondent/Bank is justified in discontinuing their service without even a written order on the ground that they were found to be undesirable and being involved in a fraud. The court allowed the writ appeals and set aside the order passed in both the writ petitions and allowed the writ petitions in the following terms: (1) Both the writ petitioners shall be reinstated in service as daily wage workmen coming under Paragraph 20.7 of the Bipartite Settlement. (2) Both the petitioners shall be paid the arrears of wages from the date of their respective termination at the rate of daily wages payable during the respective periods. (3) On reinstatement the petitioners shall be paid at the rates paid by Banks in respect of such employees, on the date of reinstatement.
Fact of the Case:
The appellants were engaged as casual employees in leave vacancies in the respondent/Bank. They were discontinued from service without any written order on the ground that they were found to be undesirable and being involved in a fraud. The appellants filed writ petitions challenging the termination of their service. The learned single Judge dismissed the writ petitions. The appellants filed writ appeals.
Finding of the Court:
The court held that the appellants are entitled to the benefit of Paragraphs 20.7 and 20.8 of the Bipartite Settlement and that the respondent/Bank is justified in discontinuing their service without even a written order on the ground that they were found to be undesirable and being involved in a fraud. The court also held that the termination of service of the appellants was by way of punishment and consequentially held that any such termination cannot be undertaken without a proper enquiry and without giving due opportunity to the appellants.
Issues: 1. Whether the appellants are entitled to the benefit of Paragraphs 20.7 and 20.8 of the Bipartite Settlement. 2. If the appellants are so entitled, is the respondent/Bank justified in discontinuing their service without even a written order on the ground that they were found to be undesirable and being involved in a fraud. 3. To what relief are the appellants entitled ?
Ratio Decidendi: The court held that the appellants are entitled to the benefit of Paragraphs 20.7 and 20.8 of the Bipartite Settlement and that the respondent/Bank is justified in discontinuing their service without even a written order on the ground that they were found to be undesirable and being involved in a fraud. The court also held that the termination of service of the appellants was by way of punishment and consequentially held that any such termination cannot be undertaken without a proper enquiry and without giving due opportunity to the appellants.
Final Decision: The court allowed the writ appeals and set aside the order passed in both the writ petitions and allowed the writ petitions in the following terms: (1) Both the writ petitioners shall be reinstated in service as daily wage workmen coming under Paragraph 20.7 of the Bipartite Settlement. (2) Both the petitioners shall be paid the arrears of wages from the date of their respective termination at the rate of daily wages payable during the respective periods. (3) On reinstatement the petitioners shall be paid at the rates paid by Banks in respect of such employees, on the date of reinstatement.
ORDER :
1. These two writ appeals arise out of the judgment of the learned single Judge made in Writ Petition Nos. 6855 and 6857 of 1986 on August 9, 1990. The petitioners in both the writ petitions came up with identical averments and therefore, they were considered by a common judgment by the learned single Judge. The petitioner in W.P. No. 6855 of 1986 was appointed as a Sub-Staff in the respondents/ Bank on September 22, 1980 while the petitioner in W.P. No. 6857 of 1986 was appointed as a Sub-Staff on March 3, 1978. While the former was discontinued from service with effect from October 26, 1984 the latter was discontinued from service with effect from July 8, 1983. According to the petitioner in W.P. No. 68552C of 1986 he had worked for a total number of 394 days during the period from September 22, 1980 to October 26, 1984. According to the petitioner in W.P. No. 6857 of 1986 he had worked for a total period of 400 days during the period from March 3, 1978 to July 8, 1983. The affidavits filed in support of the writ petitions proceeded on the basis that the oral termination of service ab initio was void and violative of Section 25F of the Industrial Disputes Act (hereinafter called "the Act"). It was further contended that the petitioners were deemed to he in continuous service from the date of the first appointment as per Section 25B of the Act. It was also contended that several juniors appointed subsequent to the date of the appointment of the petitioners were being continued in service and therefore, the discontinuance of the petitioners is illegal. On the above averments, the prayer in the writ petitions was for the issue of a writ of mandamus to direct the respondents/ Bank to absorb the petitioners as Sub-Staff with continuity of service and other attendant benefits. In the counter affidavits filed by the respondents/Bank it was contended that the petitioners were engaged as casual employees in leave vacancies as and when vacancies arose in different branches of the Bank. It was contended that the allegations required factual proof and question cannot be agitated in proceedings under Article 226 of the Constitution of India. The remedy if any of the petitioners was to raise a dispute under the Act. On merits the specific plea was that the petitioners were not retrenched within the meaning of Section 25G of the Act, but on account of undesirability in engaging him even on a casual basis due to his involvement in a fraud. In respect of such a disengagement of services of casual labour, the a provisions of Sections 25F, 25G and 25H of the Act have no application at all. It was also contended that the petitioners had not put in continuous service of one year as defined u/s 25B of the Act. It was also specifically contended that the reliefs sought for by the petitioners could not be granted and there was no question of permanent absorption of the petitioners.
2. On the above pleadings, Govindasamy, J. who heard the writ petitions observed :
"From the above, it is clear that the petitioners cannot even he construed as temporary employees. It is in these circumstances, the contention on the part of the respondents that the petitioners were disengaged on account of undesirability in engaging them even on casual basis due to their involvements in a fraud and that the provisions of Sections 25F, 25G and 25H have no application cannot be said to be unsustainable".
The learned Judge also found that there was no retrenchment as such and found that the petitioners had no claim to be absorbed as Sub-Staff in the respondents/Bank. Consequently, the writ petitions were dismissed. The Writ Appeals have been filed by the petitioners. In the Writ Appeals, a fresh ground has been raised by relying on paragraph 20.7 of the Bipartite Settlement. It is contended that there was no category as casual employees in Banks. Persons employed in leave vacancies are really temporary employees entitled to he absorbed. It was also contended that on th
