The Chief Manager, State Bank of India, Taliparamba Branch, Talipparamba, Kannur District v. P.M. Haridasan and The Central Government Industrial Tribunal Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` WEDNESDAY, THE 18[TH] DAY OF JANUARY 2023 / 28TH POUSHA, 1944 ``` ## **`WP(C) NO. 34793 OF 2011`** ## **`AGAINST THE ORDER/JUDGMENT ID 20/2008 OF CENTRAL GOVERNMENT LABOUR`** ## **`COURT,ERNAKULAM`** ## **`PETITIONER:`** ``` THE CHIEF MANAGER, STATE BANK OF INDIA, TALIPARAMBA BRANCH,TALIPARAMBA,KANNUR DISTRICT. ``` ``` BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.AMAL GEORGE SRI.MANU GEORGE KURUVILLA SRIN.RAYNOLD FERNANDEZ SMT.RINU JOSE ``` ## **`RESPONDENTS:`** ``` 1P.M.HARIDASAN PONMELI HOUSE,NEAR POOKOTH NADA, TALIPARAMBA,KANNUR DISTRICT. ``` ``` 2THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL ERNAKULAM,COCHIN-16 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 34793 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** The award of the Central Government Industrial TribunalCum-Labour Court, Ernakulam Ext.P15 rendered in I.D.No.20/2008 preferred by the respondent – workman is under challenge on behalf of the petitioner management. 2. The case of the respondent-workman in brief is that he was engaged as a substitute messenger due to exigencies of administration in the petitioner management - State Bank of India, Taliparamba Branch represented by The Chief Manager - to work in leave vacancies purely as a casual/daily worker from 1985 to 1992. Due to non-availability of vacancy for engaging the first respondent after 17/08/1992, he was not employed and thereafter raised an ID No.6/1995 before Labour Court Kozhikode challenging his retrenchment which was disposed off by Ext.P5 award dated 31.03.1997 directing the petitioner to reinstate the respondent workman with backwages, continuity and other attendant benefits. Though the workman accepted the backwages, he did not report for duty at the petitioner management as he was fighting for a ``` WP(C) NO. 34793 OF 2011 ``` ``` 3 ``` new scale of pay and permanent absorption and such requests were being continuously made by the workman through representations to this Hon'ble Court and vide Judgment dated 27.11.2006 Ext.P7 this Hon'ble Court allowing W.A. 448/2006 held that the respondent workman cannot claim regularisation of service in a public sector undertaking based on the ratio of the decision reported in 2006 (4) SCC 1 and directed the management to provide a pro rata increase in the daily wages of the workman depending upon the revision made at different times. After several rounds of litigation, the respondent workman rejoined duty on 19.01.2007 but he was retrenched from service by Ext.P8 notice dated 09.06.2007 owing to non requirement of service as there was no vacancy available at the petitioner management. Aggrieved by the action on part of the petitioner management the respondent workman preferred I.D. No.20/2008 before the Central Government Industrial Tribunal-Cum-Labour Court, Ernakulam where the subject matter of reference was the following:- “Whether the action of the management State Bank of India in retrenching Sri. P.M Haridasan from the services with effect from ``` WP(C) NO. 34793 OF 2011 ``` ``` 4 ``` 9/6/2007 in spite of his continuous service for years together, is fair and justifiable? To what relief is the workman concerned is entitled?” 3. Both the parties led the evidence, workman examined himself as WW1, and brought on record Exts.W1 to W11 and whereas the management also brought on record Exts.M1 to M7 by examining one Girija, Manager of State Bank of India, Thaliparamba branch / petitioner management as MW1. 4. Central Government Industrial Tribunal-Cum-Labour Court on preponderance of the evidences led by both parties, vide Ext.P15 award dated 18.08.2011, directed the petitioner management to reinstate the respondent-workman with back wages computed in accordance with Ext.P7 judgment in W.A. 448/2006, continuity of service and other attendant benefits. 5. Learned counsel appearing on behalf of the petitioner management submitted that the Tribunal-Cum-Labour Court went on a tangent and came to an erroneous conclusions in passing the impugned award totally ignoring the effect of Exts.M1 to M4 settlements and Exts.M5 to M7 judgment and awards. ``` WP(C) NO. 34793 OF 2011 ``` ``` 5 ``` 6. Learned counsel for the respondent workman takes appearance and submitted that the award of the Tribunal-CumLabour Court shall be effected and direct the petitioner management to act on its behalf. 7. I have heard the learned counsel for the parties and appreciated the paper book. 8. Since there has been a discord between the management and the workman, the order of the Labour Court resulting into fastening upon the workman which, in my view, ought not to have been done, instead compensation should be paid as per the judgment of the Supreme Court in **B.S.N.L v. Bhurumal (2014) 7 SCC 177** wherein it was stated that in case of an employee who cannot claim regularization and has no right to continue even as a daily wage worker, there will be no useful purpose in reinstating such a workman and he can be given monetary compensation by the Court itself in as much as if he is terminated again after reinstatement and he would receive monetary compensation only in the form of retrenchment compensation and notice pay. The same reads thus: ``` WP(C) NO. 34793 OF 2011 ``` ``` 6 ``` **“33.** It is clear from the reading of the aforesaid judgments that the 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 by way of 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 pay as 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)17]. 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 ``` WP(C) NO. 34793 OF 2011 ``` ``` 7 ``` 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.” 9. Accordingly, I modify the award of the Labour Court and order that compensation of Rs.1,25,000/- be paid to the respondent - workman in lieu of reinstatement. Award is modified and writ petition is allowed in part. Petitioner is directed to offer the payment of Rs.1,25,000/- within a period of two months of receipt of copy of this judgment. With the aforementioned modification the writ petition stands disposed of. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 34793 OF 2011 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 34793/2011`** ``` PETITIONER EXHIBITS TRUE COPY OF SETTLEMENT DATED 17/11/87 EXHIBITP1- TRUE PHOTOCOPY OF SETTLEMENT DATED 16/07/88 EXHIBITP2- TRUE PHOTOCOPY OF SETTLEMENT DATED 09/01/91 EXHIBITP3- TRUE PHOTOCOPY OF SETTLEMENT DATED 06/06/95 EXHIBITP4- TRUE PHOTOCOPY OF AWARD IN I.D 6/95 DATED EXHIBITP5- 31/3/1997 TRUE PHOTOCOPY OF THE JUDGMENT IN WA 2003/99 EXHIBITP6DATED 24/07/1999 TRUE PHOTOCOPY OF THE JUDGMENT IN WA 448/06 EXHIBITP7DATED 27/11/2006 TRUE PHOTOCOPY OF NOTICE DATED 09/06/2007 EXHIBITP8 TRUE PHOTOCOPY OF CLAIM STATEMENT IN ID 20/08 EXHIBITP9DATED 30/10/08 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN EXHIBITP10ID 20/08 DATED 17/06/09 TRUE PHOTOCOPY OF REJOINDER DATED 24/09/2009 EXHIBITP11 TRUE PHOTOCOPY OF JUDGMENT IN W.A 1272/06 EXHIBITP12DATED 13/10/09 TRUE PHOTOCOPY AWARD IN ID 207/04 DATED EXHIBITP1331/1/2007 TRUE PHOTOCOPY OF AWARD IN ID 9/08 DATED EXHIBITP1421/5/2008 TRUE PHOTOCOPY OF AWARD IN ID 20/08 DATED EXHIBITP15 18.8.2011 ```