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2020 Supreme(Ori) 19

IN THE HIGH COURT OF ORISSA, CUTTACK
Kumari Sanju Panda, S.K. Sahoo, JJ.
Urmila Shah - Appellant
Versus
Presiding Officer, Industrial Tribunal & Ors. - Respondents
Writ Appeal No. 208 of 2008; Review Petition No. 57 of 2010, 58 of 2010, 59 of 2010, 60 of 2010, 61 of 2010, 62 of 2010, 63 of 2010, 64 of 2010, 65 of 2010
Decided On : 29-01-2020

Advocates Appeared:
J.R. Dash, Advocate, Sukumar Ghose, Advocate, K.K. Mohapatra, Advocate
Cases Referred
Arun -Vrs.- Addl. Inspector General of Police, (1986) 3 SCC 696
Asst. Engineer, Rajasthan Dev. Corp. & Another -Vrs.- Gitam Singh, (2013) 5 SCC 136
Deepali Gundu Surwase -Vrs.- Kranti Junior Adhyapak Mahavidyalaya, (2013) AIR(SCW) 5330
Dharwad District PWD Literate Daily Wages Employees Assn. -Vrs.- State of Karnataka, (1990) 2 SCC 396
District Development Officer -Vrs.- Satish Kantilal Amrelia, (2018) 12 SCC 298
Durgapur Casual Workers Union -Vrs.- Food Corporation of India, (2015) 5 SCC 786
Executive Engineer, Badanala Irrigation Division, Kenduguda -Vrs.- Ratnakar Sahoo and another, (2011) Supp1 OrissaLR 556
General Secretary, North Orissa Workers Union -Vrs.- The Superintendent, Prospecting Division, (2019) 1 OrissaLR 485
Ghaziabad Development Authority -Vrs.- Ashok Kumar, (2008) 4 SCC 261
Hindustan Times Ltd. -Vrs.- Union of India, (1998) 2 SCC 242
Hindustan Tin Works Pvt. Ltd. -Vrs.- Employees, (1979) 2 SCC 80
Jagbir Singh -Vrs.- Haryana State Agriculture Marketing Board and another, (2009) 15 SCC 327
Maharashtra SRTC -Vrs.- Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556
Maya Devi -Vrs.- Raj Kumari Batra, (2010) 9 SCC 486
Muralidhar Sahu -Vrs.- State of Orissa, (2003) 1 OrissaLR 178
Nagendra Chandra -Vrs.- State of Jharkhand, (2008) 1 SCC 798
Official Liquidator -Vrs.- Dayanand, (2008) 11 JT 467
R.M. Yellatty -Vrs.- Assistant Executive Engineer, (2006) 1 SCC 106
Ram Phal -Vrs.- State of Haryana, (2009) 3 SCC 258
Secretary and Curator -Vrs.- Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732
Sita Ram and others -Vrs.- Motilal Nehru Farmers Training Institute, (2008) 5 SCC 75
State Bank of India -Vrs.- N. Sundara Money, (1976) AIR(SC) 1111
State of Karnataka -Vrs.- Umadevi, (2006) 4 SCC 1
State of M.P. and others -Vrs.- Lalit Kumar Verma, (2007) 1 SCC 575
State of Orissa -Vrs.- Hari Behera, (1999) 2 OrissaLR 236
Surendra Kumar Verma -Vrs.- The Central Government Industrial Tribunal, (1981) AIR(SC) 422
U.P. Power Corporation Ltd. -Vrs.- Bijli Mazdoor Sangh, (2007) 5 JT 611
Union of India -Vrs.- Jai Prakash Singh, (2007) AIR(SC) 1363
Uttaranchal Forest Development Corporation -Vrs.- M.C. Joshi, (2007) 9 SCC 353
Vikramaditya Pandey -Vrs.- Industrial Tribunal, (2001) AIR(SC) 672

Termination of services of workmen without following the due procedure under section 25-F of the Industrial Disputes Act, 1947 is illegal and violative of the Act.

Headnote:
The court held that the termination of services of the workmen was illegal and violative of section 25-F of the Industrial Disputes Act, 1947 (ID Act), as the employer failed to follow the due procedure for retrenchment. However, considering the length of service, litigation costs, and sufferings of the workmen, the court found that reinstatement was not feasible and instead awarded compensation of Rs. 50,000/- to each workman in lieu of back wages and reinstatement.
Fact of the Case:

The workmen were engaged on a daily wage basis by the bank and worked continuously for more than 240 days in a calendar year. Their wages were revised from time to time. However, their engagement was not in accordance with the Central Co-operative Banks Staff Service Rules, 1984 (1984 Rules). The bank terminated their services without following the due procedure under section 25-F of the ID Act.
Finding of the Court:

The court found that the workmen were engaged on a daily wage basis and worked continuously for more than 240 days in a calendar year, which made them workmen under the ID Act. The court also found that the bank failed to follow the due procedure under section 25-F of the ID Act for retrenchment. Therefore, the court held that the termination of services of the workmen was illegal and violative of section 25-F of the ID Act.
Issues: 1. Whether the workmen were engaged on a daily wage basis and worked continuously for more than 240 days in a calendar year, which made them workmen under the ID Act? 2. Whether the bank followed the due procedure under section 25-F of the ID Act for retrenchment?
Ratio Decidendi: The court held that the workmen were engaged on a daily wage basis and worked continuously for more than 240 days in a calendar year, which made them workmen under the ID Act. The court also found that the bank failed to follow the due procedure under section 25-F of the ID Act for retrenchment. Therefore, the court held that the termination of services of the workmen was illegal and violative of section 25-F of the ID Act.
Final Decision: The court allowed the writ appeal and set aside the order of the lower court. The court also dismissed the review petitions. The bank was directed to pay compensation of Rs. 50,000/- to each workman in lieu of back wages and reinstatement within a period of three months.

JUDGMENT

S. K. Sahoo, J. - In the writ appeal vide W.A. No.208 of 2008, the appellant Urmila Shah has challenged the impugned order dated 19.06.2008 passed by the learned Single Judge of this Court in W.P.(C) No.298 of 2003 in dismissing the writ petition and thereby confirming the award dated 23.10.2002 passed by the learned Presiding Officer, Industrial Tribunal, Rourkela in I.D. Case No.12 of 2001.

I.D. Case No.12 of 2001

2. In pursuant to the provision under section 10(1)(d) read with section 12(4) of the Industrial Disputes Act, 1947 (hereafter 'I.D. Act'), the appropriate Government referred the following dispute vide letter No.8096/L.E dated 07.06.2001 for a decision:

"Whether the termination of services of the workman Urmila Shah working as Accounts Assistant at Mahila Branch, Basanti Colony, Rourkela of the Bank by the Secretary, Sundargarh Dist. Central Coop. Bank Ltd, Sundargarh with effect from 28.07.2000 is legal and/or justified? If not, to what relief the workman Urmila Shah is entitled?"

On the basis of such reference, I.D. Case No.12 of 2001 was initiated before the learned Presiding Officer, Industrial Tribunal, Rourkela. The Secretary and Branch Manager of Sundargarh District Central Cooperative Bank (hereafter 'the Bank') were the 1st parties and appellant Urmila Shah was the 2nd party in the said proceeding. It is the case of the appellant2 nd party that she was selected as Account Assistant and joined the Bank on 02.04.1997 and continued there as such till 27.07.2000 when her services from the Bank were terminated. The Bank employed her in the post without regularizing her service which continued till her retrenchment. The appellant used to work sincerely and diligently and to the full satisfaction of the authority. She discharged her duties which were assigned to her. In spite of giving her full remuneration as per banking rules, she was being paid Rs.80/- per day and without following the due procedure under section 25-F of the I.D. Act, her services were terminated. She prayed for reinstatement in the Bank, payment of her back wages with compensation and all other consequential service benefits.

It is the case of the 1st parties Bank that the services of the appellant were not under regular establishment and she was working as a casual worker on daily wage basis. She was not selected as per the Staff Service Rules of the Bank rather she was engaged by the Branch Manager of the Bank without following due procedure prescribed for recruitment of regular employees. It is the further case of the 1st party Bank that the Branch Manager appointed the appellant in the Bank in a concealed, clandestine and illegal manner for which there was a special audit in the Bank and the amount paid to the appellant was to be recovered from the concerned Branch Manager.

3. The learned Tribunal in I.D. Case No.12 of 2002 framed the following issues for determination:-

(i) Whether the 2nd party workman was in continuous employment for more than one year under the 1st party management?

(ii) Whether the termination of service of 2nd party workman by the 1st party management w.e.f. 28.07.2000 is legal and/or justified?

(iii) If not, to what relief the 2nd party is entitled?

(iv) Whether the reference is maintainable?

4. While answering the issue no.(i), the learned Tribunal in its award dated 23.10.2002 held that the appellant was engaged in the services of the Bank on daily wage basis and worked there continuously for more than two hundred and forty days and the rate of her daily wage was enhanced from time to time. While answering the issue no.(ii), the learned Tribunal held that the appointment of the appellant was void ab-initio and illegal in view of the fact that the authority was not competent under Staff Service Rules to appoint her in the Bank. The then Branch Manager made the illegal appointment for which she was placed under orders of suspension and facing a departmental proceeding as per charge sheet submitted against

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