Bank of Baroda v Central Government Industrial Tribunal-Cum-Labour Court, Ernakulam and others (Bank of Baroda WP(C) Nos. 5520/2022 & 5551/2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944** **WP(C) NO. 5520 OF 2022** ## **PETITIONER:** BANK OF BARODA REPRESENTED BY ITS REGIONAL HEAD, BANK OF BARODA, REGIONAL OFFICE, 5TH FLOOR, M.G. ROAD METRO STATION COMPLEX, ERNAKULAM, PIN - 682035. BY ADVS. K.M.ANEESH K.SANTHOSH KUMAR (KALIYANAM) ADARSH KUMAR BIJU VARGHESE ABRAHAM DILEEP CHANDRAN SHASHANK DEVAN ## **RESPONDENTS:** 1 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT REPRESENTED BY ITS REGISTRAR, KARITHALA LANE, KARSHAKA ROAD, RAVIPURAM, ERNAKULAM - 682016. 2 SUDISH U.R. UNNAKAPPAPUTHENPURAYIL HOUSE, S. MARADY P. O., MUVATTUPUZHA, ERNAKULAM -682068. BY ADVS. STINNIE JOHN, CGC Sri.Ashok B. Shenoy DSGI. R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2022, ALONG WITH WP(C).5551/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.5520 & 5551/2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944** **WP(C) NO. 5551 OF 2022** ## **PETITIONER:** BANK OF BARODA, REPRESENTED BY ITS REGIONAL HEAD, BANK OF BARODA, REGIONAL OFFICE, 5TH FLOOR, M.G.ROAD METRO STATION COMPLEX, ERNAKULAM, PIN CODE-682 035. BY ADVS. K.M.ANEESH K.SANTHOSH KUMAR (KALIYANAM) ADARSH KUMAR BIJU VARGHESE ABRAHAM DILEEP CHANDRAN SHASHANK DEVAN ## **RESPONDENTS:** 1 THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUMLABOUR COURT, REPRESENTED BY ITS REGISTRAR, KARITHALA LANE, KARSHAKA ROAD, RAVIPURAM, ERNAKULAM - 682 016. 2 SMT.SUNITHA LAKSHMANAN K.V., AVARAMKOTTU HOUSE, ERANALLOOR, KAKKATTOOR, MUVATTUPUZHA-686 675 BY ADVS. Ashok Shenoy B P.S.GIREESH(K/341/2013) RAYMOND GEORGE DIAS(K/000933/2018) ARJUN R NAIK(K/001044/2020) DSGI, R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2022, ALONG WITH WP(C).5520/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.5520 & 5551/2022 3 ## **JUDGMENT** This order of mine shall dispose of two Writ Petitions preferred by Bank of Baroda against two Labour Court awards whereby two workmen, one sweeper and one peon, who were granted 3 and 4 years of service, have been ordered to be reinstated with full back wages. 2. The case set up before the Labour Court was that the 2[nd] respondent/workman in W.P.(C) No.5551 of 2022 was employed in the Bank for the period 26.11.2007 to 29.10.2011 and the 2[nd] respondent/workman in in W.P.(C) No.5520 of 2022 for the period 22.01.2009 to 16.8.2011 and have been discharging the duties diligently and honestly without any complaint. But, their services were orally terminated without complying with the provisions of Section 25F of the Industrial Disputes Act (I.D. Act). No compensation as prescribed under the provisions was paid. Junior persons were retained without any reasonable cause amounting to violation of the provisions of Section 25G of the I.D. Act. Management had intentionally treated the workmen as temporary for the purpose of depriving the status and privileges of permanent workmen, which amounts to unfair labour practice. WP(C) Nos.5520 & 5551/2022 4 3. The management contested the case of the workmen by taking the plea that the employment was intermittent on daily wages, such services could not give the status of permanent employee nor rendered 240 days in a year. Their engagement was not against the sanctioned post much less any appointment letter was issued, but was purely casual on temporary basis for the period mentioned in the claim petition. The Labour Court on preponderance of the evidence ordered for reinstatement with full back wages. 4. Mr.Shashank Devan, learned counsel appearing on behalf of the petitioner submitted that the Labour Court failed to note that the appointment of the subordinate staff is to be made by a competent authority and subject to the fulfillment of eligibility criteria. The appointment of the workmen was neither sponsored by any employment exchange nor were issued any appointment letters. The workmen failed to prove that they worked for a period of 240 days continuously under the petitioner Bank, thus there could not be any violation of provisions of Section 25F of the I.D.Act. It was purely on contractual basis and on cessation of the work, services were dispensed with. The appointment was also not against the permanent vacancy sanctioned, but as a stop-gap WP(C) Nos.5520 & 5551/2022 5 arrangement. A request was also made to the Labour Court for determining the compensation instead of reinstatement, but the same was not pondered. In support of the contention, relied upon the judgment of the Supreme Court in _**State of Uttarakhand and another v. Raj Kumar** [(2019) 14 SCC 353]_ . 5. On the other hand, learned counsel appearing on behalf of the workmen supported the reasoning assigned by the Labour Court on the premise that it was a case of termination without resorting to the provisions of Section 25F, a case of unfair practice in order to overcome the consequential effect of regularisation and payment of other emoluments. The Bank had, erroneously, been resorting to employing the workmen and allowing them to work for number of years and then take the plea of daily wages or temporary wages. Such a practice has, in catena of judgments, been deprecated, therefore, the award of the Labour Court ordering reinstatement of the service with full back wages is perfectly legal and justified. 6. I have heard the counsel for the parties and appraised the paper books. 7. Both the workmen are of young age and had rendered the service of four years and two years as peon and sweeper. Ordering WP(C) Nos.5520 & 5551/2022 6 of reinstatement with full back wages is an attempt to foist workmen upon the management though not comfortable with them as there had been a litigation between the two. No doubt the management was required to serve them retrenchment compensation as enumerated under the provisions of Section 25F of the Act, as it is settled law that continuous employment on daily wages or on temporary wages cannot be a ground of defence of contractual employment. Concededly the workmen had rendered 240 days in the establishment and therefore are ‘workmen’ as per the provisions of the I.D.Act. 8. Since the workmen had rendered service only for the period aforementioned, I am of the view that the award of Labour Court ordering reinstatement in such circumstances is not appropriate. The course would have been for determination of the compensation in view of the ratio culled out in the judgment aforementioned. For the sake of brevity, the findings rendered in _**Raj Kumar**_ (supra) reads as under : > _“9. In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v. Bhurumal [BSNL Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development officer v. Satish Kantilal Amrelia [Distt. Development officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298: (2018) 2 SCC (L&S) 276] ._ > _10. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177: (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35)_ WP(C) Nos.5520 & 5551/2022 7 _"33. It is clear from the reading of that the of the aforesaid judgments ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or of by way victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka V. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose._ _35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a a worker daily wage juniors to him were retained. There may also be a a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.""_ 9. Accordingly, I modify the award of the Labour Court and hold that instead of ordering reinstatement with back WP(C) Nos.5520 & 5551/2022 8 wages, compensation of Rs.2,50,000/- in Writ Petition No.5520 of 2022 and Rs.2,65,000/- in W.P.(C) No.5551 of 2022 is ordered to be paid to respondents No.2 within a period of two months from the date of receipt of a certified copy of the judgment. Writ Petitions stand disposed of. Sd/- **AMIT RAWAL JUDGE** csl WP(C) Nos.5520 & 5551/2022 9 ## **APPENDIX OF WP(C) 5551/2022** PETITIONER'S EXHIBITS |EXHIBIT P1|COPY OF THE CLAIM IN I.D.NO.33/2012 FILED| |---|---| ||BY THE 2ND RESPONDENT BEFORE THE 1ST| ||RESPONDENT| |EXHIBIT P2|COPY OF THE WRITTEN STATEMENT FILED BY| ||THE PETITIONER IN I.D.NO.33/2012 BEFORE| ||THE 1ST RESPONDENT| |EXHIBIT P3|COPY OF THE AWARD DATED 24.2.2020 IN| ||I.D.NO.33/2012 PASSED BY THE 1ST| ||RESPONDENT| |EXHIBIT P4|COPY OF THE INTERIM ORDER OF STAY DATED| ||13.9.2021 IN WP(C) NO.18723/2021| |EXHIBIT P5|COPY OF THE INTERIM ORDER OF STAY DATED| ||12.01.2022 IN WP(C) NO.1037/2022| WP(C) Nos.5520 & 5551/2022 10 ## **APPENDIX OF WP(C) 5520/2022** PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 2ND RESPONDENT IN ID NO.19/2013 BEFORE THE 1ST RESPONDENT. Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN ID NO.19/2013 BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM. Exhibit P3 A TRUE COPY OF THE AWARD DATED 24.02.2020 IN ID NO.19/2013 PASSED BY THE 1ST RESPONDENT. Exhibit P4 A TRUE COPY OF THE INTERIM ORDER OF STAY DATED 13.09.2021 IN WP(C) NO.18723/2021. Exhibit P5 A TRUE COPY OF THE INTERIM ORDER OF STAY DATED 12.01.2022 IN WP(C) NO.1037/2022.