Deputy General Manager (B&O), State Bank of India, LHO Ernakulam; Chief General Manager, State Bank of India, Local Head Office, Rotary Junction, Poojappura, Trivandrum; Assistant General Manager (HR), State Bank of India, HR Department, Local Head Office, Rotary Junction, Poojappura, Trivandrum; Chief Manager, State Bank of India, MG Road Branch, Ernakulam v. K.V Joy Kollamolath House, Karukapilly, P.O., Kolenchery, Ernakulam-682 311

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BADAR** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** ## **WP(C) NO. 14221 OF 2021** ## **PETITIONER/S:** 1 THE DEPUTY GENERAL MANAGER(B&O) STATE BANK OF INDIA, LHO ANNEX, SHANMUGHAM ROAD, ERNAKULAM-682 301 2 THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, ROTARY JUNCTION, POOJAPPURA, TRIVANDRUM 695 012, (FORMERLY AT S.S. KOVIL ROAD, THAMPANOOR, TRIVANDRUM-695 001 3 THE ASSISTANT GENERAL MANAGER (HR), STATE BANK OF INDIA, HR DEPARTMENT, LOCAL HEAD OFFICE, ROTARY JUNCTION, POOJAPPURA, TRIVANDRUM695 012. (FORMERLY AT S.S. KOVIL ROAD, THAMPANOOR, TRIVANDRUM-695 001 4 THE CHIEF MANAGER, STATE BANK OF INDIA, M.G. ROAD BRANCH, ERNAKULAM682 011 BY ADVS. GEORGE THOMAS (MEVADA)(SR.) AMAL GEORGE ## **RESPONDENT/S:** K.V JOY KOLLAMOLATH HOUSE, KARUKAPILLY P.O, KOLENCHERY, ERNAKULAM-682 311 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 14221 OF 2021** -2- ## **A.M.BADAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - W.P.(C) No.14221 of 2021 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of July, 2021 ## **JUDGMENT** The petitioners employer are challenging the award Ext.P1 passed by the learned Central Government Industrial Tribunal-cum-Labour court, Ernakulam in I.D. No.17 of 2014, thereby allowing the complaint filed by the respondent and directing to award monetary compensation of Rs.4,50,000/- in lieu of reinstatement by holding that he is in fact entitled for 50% of back wages. 2. The learned counsel for the petitioners strenuously alleged before this court that on an earlier occasion, the respondent had approached this court seeking relief of appointment on permanent basis and this court has rejected that contention of the respondent and other similarly situated workers by holding that they are over **WP(C) NO. 14221 OF 2021** aged persons having crossed the age of 45 years and as such, according to the rules and regulations, they are not entitled for appointment in permanent vacancy. The learned counsel for the petitioners drew my attention to paragraph No.11 of the judgment of this court in W.P.(C) Nos.21153 of 2013 and connected cases (Ext.P3), which reads as follows: “11. As far as the claim of the armed guards appointed on temporary basis is concerned, such persons who are qualified as per the guidelines issued by the bank are definitely entitled to participate in the selection process. However, the claim for permanent appointment cannot be granted in view of the law laid down by the Supreme Court in State of Karnataka v. Umadevi [(2006) 4 SCC 1] which is reiterated in State of Kerala v. G.V.Chandrashekar [(2009) 4 SCC 342]. In the **WP(C) NO. 14221 OF 2021** -4- writ petitions filed by the exservice men the main relief sought for is to direct the ALC (Central) to pass appropriate orders in the matter and to intervene in the selection process. As already stated, ALC (Central) cannot intervene in the recruitment process of the bank. It can only consider whether the applicants before it has a valid dispute, which is required to be adjudicated by the appropriate authority. It is not open for ALC to issue interim directions to stop the recruitment process which is taken up to fill up the vacancies in the bank.” Taking help of the observation of this court in paragraph No.11 of the judgment, it is argued that once claim for permanent appointment of the respondent was rejected by this court while deciding the Writ Petition, the learned Central Government Industrial Tribunal-cum-Labour court ought not have granted the relief as prayed by the respondent as the respondent was an over aged person and **WP(C) NO. 14221 OF 2021** -5- having no entitlement to the permanent post of the Armed Guard. 3. I have considered the submissions made and also perused the materials placed before me. 4. Perusal of the complaint filed by the respondent under Section 2A(2) of the Industrial Disputes Act, 1947 makes it clear that the main relief claimed by the respondent was reinstatement with back wages as well as consequential reliefs. Material averment made by the respondent in his complaint can be found in paragraph No.12 thereof, wherein the respondent has stated that he was appointed by the petitioners by following due process of selection and was working continuously with the petitioners herein for the period from 7.10.2005 to 2.1.2013. However, when he had reported on duty on 3.1.2013, the petitioners herein informed him that his services were no longer required by them. As such the respondent alleges termination without following due course of law with effect from 3.1.2013. **WP(C) NO. 14221 OF 2021** -6- 5. This claim came to be refuted by filing written statement, Ext.P6 by contending that engagement of the respondent herein as an armed guard in the bank was purely on temporary basis and he was not terminated illegally. His termination, according to the petitioners herein, was not an unfair labour practice. He was purely engaged as an armed guard on temporary basis by the bank at the time when he was 44 years age. 6. The petitioners herein, in the written statement, allege that the averment of the respondent that he worked continuously for 1335 days in various branches of bank for a period of 9 years is far from truth. The respondent was not in continuous engagement. It is averred by the petitioners herein that there was no violation of any of the provisions of the Industrial Disputes Act including Section 25F of the Industrial Disputes Act thereof. 7. On the basis of the rival pleadings parties went for trial. 8. The respondent adduced evidence on affidavit as **WP(C) NO. 14221 OF 2021** -7- Ext.P8 and in the rebuttal, the petitioner Management has also adduced evidence of the Chief Manager, State Bank of India, Mr.N G Mathew (Ext.P9). Reliance was placed on documentary evidence. Ultimately, the learned Central Government Industrial Tribunal-cum-Labour court came to the conclusion that the respondent was in continuous service of the petitioners and his termination is in breach of provisions of Section 25F of the Industrial Disputes Act and accordingly, he was directed to be paid lump-sum compensation of Rs.4.5 lakhs in lieu of his re-instatement. 9. While exercising writ jurisdiction, this court cannot convert itself into the court of appeal. The supervisory jurisdiction of this court is limited to the extent of keeping the subordinate courts or Tribunals within the limits of their authority. This court is enjoined with the duty of seeing that the subordinate courts or Tribunals obey the law. This court cannot review or re-appreciate the evidence upon which the determination of the subordinate court or Tribunal is based. Finding of fact cannot be **WP(C) NO. 14221 OF 2021** -8- corrected unless and until it is shown that there is gross failure of justice or that the impugned judgment is totally perverse. 10. Keeping in mind these principles, if we examine the record of the instant case, then it is clear from the duly sworn testimony of the respondent herein/workman that he was in continuous employment of the petitioners herein from the date of his engagement on 7.10.2005 till his termination with effect from 3.1.2013. The respondent had placed on record the certificates issued by the petitioners regarding his service, which were mentioning the number of days on which the respondent served with the petitioners. The Central Government Industrial Tribunal-cum-Labour court relied on one such certificate (Ext.W6), which was showing that the petitioner had actually worked for a period of 246 days for the period from 1.12.2011 to 12.10.2012. It is required to be kept in mind that while calculating the continuous service rendered by a workman, paid holidays are also required to be **WP(C) NO. 14221 OF 2021** -9- included. In the case in hand, finding of fact that the respondent workman had rendered continuous service with the petitioners is based on oral testimony as well as documentary evidence adduced by the respondent. That documentary evidence is nothing else than the record of the petitioners herein/employer. To crown this all, it is seen that the respondent workman had tendered a notice to produce documents which was not replied by the petitioners nor the documents showing the actual service rendered by the respondent were placed on record of the Labour court by the petitioners. Being an employer, petitioners were bound to have documentary evidence regarding number of days on which the respondent worked with them and the period for which they had paid salary or wages to the respondent for the work rendered by him. When no such record was forthcoming, no fault can be found with the finding of the Government Industrial Tribunal-cum-Labour court to the effect that the respondent had rendered continuous service as envisaged by Section **WP(C) NO. 14221 OF 2021** ## 25(B) of the Industrial Disputes Act. 11. Even if it is assumed that the respondent had entered in the employment of the petitioners without undergoing any selection process as per the rules, then also for termination of his service provisions of Section 25F of the Industrial Disputes Act are required to be followed. Section 25F of the Industrial Disputes Act is the piece of welfare legislation and by virtue of this provision while retrenching the workman who had rendered continuous service, such workman becomes entitled for monetary benefit on the basis of service rendered by him with the employer. If the employer wants to remove such workman for any reason such as he being not engaged by following due process of law, still such workman is at least entitled for retrenchment compensation for the past service rendered by him with such employer. For want of payment of retrenchment compensation to the respondent at the time of his retrenchment by the petitioners, the retrenchment so effected becomes illegal making the respondent entitled for **WP(C) NO. 14221 OF 2021** -11- the benefit of reinstatement etc. 12. In the case in hand, admittedly the petitioners have not paid any retrenchment compensation to the respondent while removing him from service. So far as the claim for permanency of the respondent is concerned, that is not the subject matter of the dispute and the award is not dealing with the same. What is challenged before this court is the award of compensation in lieu of reinstatement. Considering the age at which the respondent came to be terminated from the employment of the petitioners without following the due course of law, in my considered opinion, the quantum of compensation awarded to him cannot be said to be exorbitant so as to require the interference at the hands of this Court. In the result, this Writ Petition fails and accordingly, it is dismissed. Sd/ ## **A.M.BADAR, JUDGE** . dl/ **WP(C) NO. 14221 OF 2021** -12- ## **APPENDIX OF WP(C) 14221/2021** PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE AWARD PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT ERNAKULAM IN ID 17 OF 2014 DATED 09.03.2020. Exhibit P2 TRUE PHOTOCOPY OF THE COMMON JUDGMENT PASSED IN W.P.(C) NOS. 8520 OF 2011 AND OTHER CONNECTED WRIT PETITIONS DATED 11.10.2012. Exhibit P3 TRUE COPY OF THE JUDGMENT PASSED IN W.P 22055 OF 2013 DATED 20.12.2013 Exhibit P4 TRUE COPY OF THE JUDGMENT PASSED IN WRIT APPEAL 64 OF 2014 ALONG WITH OTHER CONNECTED WRIT APPEALS DATED 10.02.2014. Exhibit P5 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE RESPONDENT DATED 26.03.2014. Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT FILED DATED 01.09.2014. Exhibit P7 TRUE PHOTOCOPY OF THE REJOINDER FILED BY THE RESPONDENT DATED 17.10.2014. Exhibit P8 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE RESPONDENT DATED 30.12.2015. Exhibit P9 TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT FILED BY THE MANAGEMENT BANK DATED 20.08.2019.