Bank of Baroda v. Central Government Industrial Tribunal cum Labour Court, Ernakulam and Christopher P.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939** ## **WP(C).No. 3171 of 2010 (V)** **---------------------------** **PETITIONER:** **---------------------------** **BANK OF BARODA REGIONAL OFFICE, VASUDEVA BUILDING, T.D. ROAD, ERNAKULAM.REP BY ITS ASST GENERAL, MANAGER.** **BY ADVS.SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN** ## **RESPONDENT(S):** **-----------------------------** **1. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM.** **2. CHRISTOPHER P.P, PANJIKKARA HOUSE, NEAR EAST CHURCH, ANGAMALY PO, 683 572.** **R1 BY ADVS. SRI.N.NAGARESH, ASST.S.G OF INDIA SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI R2 BY ADVS. SRI.PAULSON C.VARGHESE SRI.BABY JOSEPH(KOCHI)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 3171 of 2010 (V)** **---------------------------** ## **APPENDIX** **--------------------** ## **PETITIONERS EXHIBITS** **---------------------------------------** ## **EXT.P1 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 2ND RESPONDENT** **EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER** **EXT.P3 TRUE COPY OF THE AWARD DATED 18.06.2009** ## **EXT.P4 SERIES TRUE COPY VOCHERS** **EXT.P5 TRUE COPY OF LETTER DATED 3.8.2011 ISSUED BY THE PETITIONER EXT.P6 TRUE COPY OF LETTER DATED 9.8.2011 ISSUED BY THE RESPONDENT** **RESPONDENTS EXHIBITS --------------------------------------** **EXT.R2(A) TRUE COPY OF NOTICE DATED 14/05/2009** **EXT.R2(B) TRUE COPY OF THE PROCEEDINGS DATED 12.08.2009 EXT.R2(C) TRUE COPY OF THE NOTICE DATED 22.10.2009 EXT.R2(D) TRUE COPY OF THE APPLICATION DATED 08.02.2010** **EXT.R2(E) TRUE COPY OF THE INFORMATION DATED 9.12.2013 PROVIDED BY THE MANAGEMENT BANK TO 2ND RESPONDENT** **EXT. R2(F) TRUE COPY OF THE JUDGMENT DATED 05.06.2015** **EXT. R2(G) TRUE COPY OF THE LETTER DATED 17/07/2001** **EXT.R2(H) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 09.01.1998** ## **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.3171/2010** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 15[th] day of November, 2017 ## **J U D G M E N T** 1. The petitioner, Bank of Baroda, questions an award passed under the Industrial Disputes Act, 1947. The dispute referred to adjudication is as follows: “Whether the action of the management of Bank of Baroda in terminating the service of Shri.Christopher P.P. is correct or not? If not what relief is entitled to?” 2. The workman, namely, Christopher was engaged as a Peon initially at Kothamangalam Branch of the bank in the year 1993. The said engagement was, as a casual worker. It appears that he was shifted to Alwaye Branch in the year 1998. He was disengaged on 7.10.2002. The Tribunal found that he had worked in different branches of the Bank and put 410 days continuous service without any break from 1.11.1999 to 5.4.2001 and therefore, he could not ``` WPC 3171/2010 ``` ## **-:2:-** have been terminated from service without recourse to the procedure contemplated under Section 25F of the ID Act. 3. The learned counsel for the petitioner/bank argued that there was no evidence to show that, immediately prior to the disengagement of the workman, he had put 240 days continuous service and therefore, the finding of the Tribunal that the management had not followed the procedure under Section 25F has to be interfered. He also argued that it is for the workman to adduce evidence to prove that he had worked for 240 days. Further, the learned counsel relied upon the judgment of the Hon'ble Supreme Court in **Rajasthan State Ganganagar S.Mills Ltd.v. State of Rajasthan** **and Anr. [Manu /SC/0749/2004]** in that context **.** The learned counsel also impugned the relief granted to the workman of reinstatement with back wages. The argument is that every reinstatement with back wages is not automatic and the Tribunal has the discretion to award compensation instead of reinstatement. He referred to the judgment of the Hon'ble Supreme Court in **Haryana State Agriculture Marketing Board and Another [2009IV-LLJ-336]** in support of the said argument. ## **`WPC 3171/2010`** ## **-:3:-** 4. However, the Tribunal appreciated the evidence and found that the workman was continuously working for 410 days. After referring to the details of engagement of the workman, appended in a prescribed format, it was observed as follows: “...As per the format the worker was engaged in Alwaye branch from 23.06.1998 to 05.04.2001 for 482 days. Out of this engagement from 01.11.1999 to 05.04.2001 is for 410 days and it is continuous service without break...” It is relying upon this observation, the learned counsel for the petitioner argued that after 5.4.2001 till the alleged date of disengagement, i.e., on 7.10.2002, there was nothing on record to show that the workman had 240 days' service without any break in a year. 5. There is no such stipulation under Section 25B of the ID Act that, 240 days' of work has to be calculated immediately preceding to the date to which such calculation has to be made. It is appropriate to refer Section 25B(1) and (2) in this context, which reads as follows: “25B. Definition of continuous service.- For the purposes of this Chapter,-- ``` WPC 3171/2010 ``` ## **-:4:-** (1)a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-- - (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-- - (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case...” 6. The provisions as above would show that any time preceding the date with reference to which calculation has to be made, if the workman had worked under the employer for a period of 240 days, he will be deemed to be in continuous service of the employer for the purposes of Chapter V A of the ID Act. The worker was disengaged as per the findings of the Tribunal on 7.10.2002. There was evidence before the Tribunal to show that he was engaged under the employer from 23.06.1998 to 05.04.2001 for ``` WPC 3171/2010 ``` ## **-:5:-** 482 days and out of this engagement, 410 days were continuous service without a break, i.e., from 01.11.1999 to 05.04.2001. Therefore, I uphold the finding of the Tribunal that the workman had continuous service and that the workman was entitled to the relief as granted by the Tribunal. 7. However, the learned counsel for the petitioner persisted with the argument that the workman need be paid compensation in lieu of reinstatement. In the judgment relied upon by the learned counsel in **Jagbir Singh v. Haryana State Agriculture Marketing Board and Another [2009-IV-LLJ-336 (SC)],** the Hon'ble Supreme Court referred the factors which are relevant for awarding compensation in lieu of compensation. It is appropriate to refer para.7 of the judgment, which reads as follows: “7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed ``` WPC 3171/2010 ``` ## **-:6:-** procedure. Compensation instead of reinstatement has been held to meet the ends of justice.” 8. In this case, the workman entered into the service as a casual worker in the year 1993. He had put nearly eight years' service with the employer. Long service rendered by a casual worker cannot be ignored in such circumstances. Therefore, I am of the view that in the interest of justice, the relief as granted by the Tribunal has to be upheld. There is no merit in the writ petition, and it is accordingly, dismissed. No costs. ## **A.MUHAMED MUSTAQUE, JUDGE** ms