1. By way of this petition under Article 226 of the Constitution of India, the petitioner-Bank has challenged validity of judgment and award dated 29.09.2001 passed by the learned Central Industrial Tribunal, Gujarat in Reference (ITC) No.14 of 1990 whereby, the learned Tribunal has directed the petitioner-Bank to reinstate the original respondent-workman–Smt.Premibai Pitambar Vela on her original post with continuity in service with 100% back wages.
2. This Court (Coram: Ravi R. Tripathi, J.) on 21.01.2002 passed the following order.
“Rule returnable on 20.02.2002. Notice as to interim relief returnable on the same date. Ad-interim relief in terms of para 10(B) till then.”
3. It appears from the record that thereafter, the said ad-interim relief came to be continued and ultimately, this Court (Coram: D.H. Waghela, J.) vide order dated 22.04.2002, granted interim relief till further orders subject to compliance of the provisions of Section 17B of the Industrial Disputes Act, 1947 (for short, the 'Act').
4. Apropos the said order, the original respondent-workman, by affidavit dated 05.01.2003, declared before this Court that she is not gainfully employed since the date of termination and also from the date of the award. It transpires that the said stand taken by the original respondent-workman is not controverted by the petitioner-Bank. It is also necessary to note that original respondent-workman-
Smt.Premibai Pitambar Vela expired on 25.03.2004 pending final hearing of this petition and, by order dated 08.02.2006 passed by this Court (Coram: K. S. Jhaveri, J.) in Civil Application No.1626 of 2006, the legal heirs of original respondent-workman–Smt.Premibai Pitambar Vela have been brought on record.
5. In view of the above position, as far as the award of reinstatement is concerned, it is not necessary to deal with the same in this judgment.
6. On perusing the impugned judgment and award, it transpires that the learned Tribunal, on the basis of the evidence on record, has come to the conclusion that the original respondent-workman has worked continuously without any break from the year 1981 to 1988. The learned Tribunal has also recorded that the petitioner has failed to bring on record any evidence to show, by way of producing the attendance register or by any other cogent evidence, that the original respondent- workman has not worked for 240 days in the preceding year. On that premises and on appreciation of the oral as well as documentary evidence, the Tribunal has come to the conclusion that the petitioner had committed breach of the provisions of Section 25-F of the Act.
7. Mr.B.D. Karia, learned counsel appearing for the petitioner-Bank has taken this Court through the impugned judgment and award of the learned Tribunal and submitted that, in fact, the learned Tribunal has wrongly come to the conclusion that there is breach of provisions of Section 25-F of the Act. Mr.Karia, learned counsel pointed out that the learned Tribunal has committed an error apparent on the face of the record in coming to the conclusion that the original respondent- workman had completed 240 days. Mr.Karia, learned counsel submitted that the Tribunal has also misread the bi-parte settlement between the petitioner-Bank and the representative Union of the Government and has thus, committed an error apparent on the face of the record. Mr.Karia, learned counsel submitted that the appointment of the original respondent-workman was without following the due procedure of recruitment and even her name was not recommended by the Employment Exchange and as respondent-workman being an irregular appointee, cannot claim the right as settled by bi-parte settlement. Mr.Karia, learned counsel also submitted that, in fact, the appointment of respondent-workman was only on casual and ad-hoc basis and that too only for few hours and the work which was taken from her, was to look after the needs of the staff of the Bank as well as the customers by providing drinking water in the Branch at Jamnagar. Mr.Karia, learned counsel, therefore, submitted that the present petition deserves to be allowed and even the award of back wages deserves to be quashed and set aside.
8. Per contra, Mr.Mukesh Rathod, learned counsel appearing for the respondents herein has supported the impugned judgment and award. Mr.Rathod, learned counsel submitted that the learned Tribunal has, on the basis of the evidence on record, rightly come to the conclusion that the petitioner-Bank has not been able to prove that the original respondent- workman has not worked for 240 days. Mr.Rathod, learned counsel relying upon bi-parte settlement, vehemently pointed out that, in fact, as per the said settlement, the services of the original respondent-workman should have been made permanent. Mr.Rathod, learned counsel further submitted that even otherwise, as the original respondent-workman has already expired, question of reinstatement no more survives. However, Mr.Rathod, learned counsel submitted that the petition deserves to be dismissed and award of back wages as awarded by the learned Tribunal deserves to be confirmed.
9. Considering the factual matrix of the petition and on perusing the impugned judgment and award, the learned Tribunal has not committed any error in coming to the conclusion that the original respondent-workman has worked for 240 days in the preceding year. The petitioner-Bank has, on oral submission, only put up its case that the original respondent-workman did not work for 240 days. However, the petitioner-Bank has failed to prove the same by way of any cogent documentary evidence in support of such a stand and as rightly noted by the learned Tribunal, the same cannot be proved merely by relying upon a chart prepared by the petitioner-Bank itself because the Bank, being an employer, is in possession of such a cogent and documentary evidence which would reveal that the original respondent-workman has worked for how many days. It is more so because the Bank being a nationalized bank, has to make payment on vouchers and even such evidence is also not brought on record before the learned Tribunal.
10. However, considering the fact that the matter is very old and the judgment and award impugned in the present petition is dated 29.09.2001 and the date of termination is 07.09.1998 and also considering the fact that the original respondent-workman was engaged as a daily wager, instead of confirming the award of back wages passed by the learned Tribunal, lump sum monetary compensation would meet the ends of justice.
11. It is also brought to the notice of this Court during the course of hearing that in spite of specific order of this Court to comply with the provisions of Section 17B of the Act, the petitioner-Bank has not complied with the said direction. Moreover, considering the fact that right from 1988, at-least till 25.03.2004, the date on which the original respondent-workman expired, she would have been granted increment at least to the level of minimum wages as a daily wager.
12. At this stage, it would be appropriate to rely upon the judgment of the Hon'ble Apex Court in the case of Bharat Sanchar Nigam Limited V/s. Man Singh and allied matters reported in (2012)1 SCC 558 wherein, the Hon'ble Apex Court in paras 4 and 5 has observed thus:-
“4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as daily wagers“ and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be justified and instead, monetary compensation would meet the ends of justice.”
13. Considering the facts of this case and relying upon the judgment of the Hon'ble Apex Court in the case of Bharat Sanchar Nigam Limited (supra), as the original respondent-workman has expired, the petitioner-Bank is directed to pay lump sum amount by way of compensation in lieu of back wages and considering the factors, as observed above, more particularly, the period of service of 8 years as well as the date of dismissal being 07.09.1998 and the date on which the original respondent-workman expired i.e. on 25.03.2004, interest of justice would be served if the said amount is quantified to Rs.75,000/- (Rupees Seventy Five Thousand only). However, as the original respondent-workman is not alive, no interest is provided for in this judgment.
14. The petitioner-Bank shall, within a period of 60 days from the date of receipt of this order, open savings bank account in the names of present respondent Nos.1/1 to 1/4 and deposit the aforesaid amount of Rs.75,000/- in the said savings bank account. The respondent Nos.1/1 to 1/4 shall, within a period of 60 days as provided above, approach the petitioner-Bank having branch at Jamnagar along with the requisite documents for opening new savings bank account in the joint names of respondent Nos.1/1 to 1/4.
15. The impugned judgment and award as far as the reinstatement is concerned, does not survive and is hereby quashed and set aside as original respondent-workman Smt.Premibai Pitambar Vela expired on 25.03.2004. The award of back wages is hereby substituted and modified to lump sum amount of Rs.75,000/-, as aforesaid.
16. Rule is made absolute to the aforesaid extent. No order as to costs.
Hitesh (R.M.CHHAYA, J.)