JUDGMENT D.P. Singh, J.
1. The award of the Tribunal given on June 5, 1987, by which reinstatement with full back wages have been granted to the workman, has been challenged by the petitioner Bank.
2. Heard Sri Yeshwant Varma learned counsel for the petitioner and Sri K.P. Agarwal, learned senior advocate assisted by Sri A.K. Gaur and Sri Hasan for the respondents.
3. The respondent workman Sri Santosh Kumar Mishra was given a temporary appointment by the petitioner-bank as Watchman at the Transport Nagar Branch at Kanpur for a period between September 20, 1982 to December 8, 1982 (a total period of 80 days) vide appointment letter specifying the definite period of appointment. In view of the specific period mentioned in the appointment letter, the services of the workman came to an end after the period mentioned therein had expired. No order of termination was passed by the petitioner Bank. The Government referred the dispute under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) vide Notification dated May 29, 1986 which was to the following effect:
"Whether the action of the management of State Bank of Bikaner and Jaipur in terminating the services of Sri Santosh Kumar Misra Ex-temporary Watchman at Transport Nagar Branch, Kanpur w.e.f, December 8, 1982 is justified and legal in. view of the provisions of Sections 25G and 25H of the I.D. Act, if not, to what relief the workman is entitled to?"
4. The respective parties after filing their written statements also led evidence and examined their respective witnesses.
5. Inter alia, the stand of the workman was that the bank has started a practice of appointing temporary employees for performing regular nature of work in view of the directions issued by the Head Office and his appointment was also in accordance with the said policy. It was further stated that the business of the bank was increasing and in fact new branches were opened at Kanpur after cessation of his employment. The workman further went on to state that fresh hands were taken in and juniors were retained while his services were terminated. Further he contended that no notice for retrenchment or compensation was given. All this, he claimed, apart from being in violation of Section 25-G and H of the Act, also contravened the provisions of Shastri Award and Tripartite Settlement. This action, it was contended, was arbitrary, discriminatory, unjustified and amounted to unfair labour practice. Therefore, the workman was entitled to reinstatement with full back wages from the date of cessation of his employment.
6. The petitioner bank in their written statement claimed that the appointment of the workman was for a fixed term and the very nature of the appointment was such that it was not covered by Section 25G. It was further stated that the workman had neither worked for 240 days nor his appointment continued for one year and as such he was not entitled to any relief. It was also stated that Section 25H was not violated and no fresh hands were taken. It was further stated that the selection of all posts in the bank is being done by a Recruitment Board and the Bank itself could not make any appointment in view of the laws applicable to it. Therefore, it was contended, to meet the administrative exigencies, temporary and casual appointments were made for the smooth working of the Bank. Further, it was stated that in view of the definition of the word, 'retrenchment' as defined in Section 2(oo), no reference ought to have been made and if made ought to be rejected.
7. The Government, in somewhat similar circumstances, had made seven references in relation to 30 workmen and the Tribunal after consolidating all those references had given a common award on May 14, 1987. In the Reference No. 12793 of 1987 (with respect to 3 workmen), Reference No. 12795 of 1987 (with respect to one workman), and Reference No. 12796 of 1987 (with respect to six workmen), the Government had made a simple reference, somewhat to the effect, whether the termination of the workmen was justified? In the other set of references namely, 12794 of 1987 (with respect to one workman), 12792 of 1987 (with respect to one workman) 12797 of 1987 (with respect to 16 workmen) the reference was similar to the reference as in the present case and noted hereinabove. The Tribunal after hearing the parties held that in all cases the provisions of Section 25G and 25H were attracted and since the termination was in violation of those provisions it ordered reinstatement with full back wages. The Tribunal repelled the contention of the bank that sub-section (bb) of Section 2(oo) would apply on the ground that the amendment by which Sub-clause (bb) had been added was brought about in 1984 while the rights of the workmen had already crystallized in 1982.
8. Learned counsel for the petitioner has made three submissions, (a) since the appointment was for a fixed period, therefore, the provisions of Section 25G would not apply (b) that there was no evidence to support the finding with respect to violation of Section 25H and (c) that violation of Section 25H would not result in automatic re-employment of the workman concerned.
9. Learned counsel for the workman has contended that in the facts of the case Section 25-G and H were attracted and the Tribunal was fully justified in directing reinstatement and payment of full back wages. The other contention of the learned counsel for the workman was that since the workman has been in continuous service of the bank since 1987 i.e. during the pendency of the writ petition in this Court, equity demands that at this belated stage his services may not be jeopardized.
10. No other point has been urged by either of the parties. Besides, neither the Shastri Award nor the Tripartite Settlement has been produced before this Court.
11. It is common ground that the period of engagement was duly mentioned in the appointment letter itself and after the expiry of the said period there was automatic cessation of engagement and no order of termination was passed. It is not disputed that the employment was only for a period of 80 days. Section 25G of the Act provides the method of retrenchment namely, the last to come is the first to go. But the Section itself provides that if the retrenchment is in terms of an agreement contrary to the rule of 'last come first go' then Section 25G is not attracted. Section 25G as it stood is quoted:
"Section 25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workman in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
12. As already noted above, it is not disputed that the contract of engagement specified the date of cessation of employment and that the employment would not continue after the mentioned period. Thus, there was an agreement to the principles of 'last come first go' as contemplated in Section 25G. A feeble attempt was made by Mr. Agarwal, learned counsel for the respondent that the agreement should be expressed. However, I am not impressed by this argument. Giving a plain meaning to the word, 'agreement' and 'contrary' it would take within its sweep even implied agreement. I am supported in my view by a decision of Punjab and Haryana High Court rendered in Kashmira Singh v. Haryana Electricity Board and Ors. 1976 LIC 348, where the agreement stipulated that the services could be terminated by giving one month notice, the Court held that such an agreement amounted to an agreement to the contrary as envisaged in Section 25G. The application of Section 25G can also be examined by another angle. It is not disputed that regular appointment is to be made by the Recruitment Board and in case the bank is permitted to make such temporary arrangement de hors those rules, such back door appointments would violate the provisions of Articles 14 and 16 of the Constitution of India. It has time and again been said that back door appointment do not help the cause of the workmen at large.
13. An attempt was made on behalf of the petitioner that in view of the amendment to Section 2(oo) by addition of Sub-clause (bb) by the Amending Act 49 of 1984, since it was declaratory, thus, was applicable to all cases of termination. The argument has no force. A perusal of the amendment and the Amending Act would show that it was not given retrospective operation by the nature of the word used therein. In any event, even if cessation of such employment amounted to retrenchment, the rigor of Section 25G is not attracted in the present case.
14. Section 25H mandates that if the employer proposes to take new hands, he would have to give preference to the retrenched, employee who offers himself for re-employment. Though the written statement of the employee contained a statement that fresh hands were taken in, which was specifically denied by the employer, no specific details of such employment of fresh hands was brought on record. Some witnesses examined on behalf of management did say that fresh hands were taken in but the workman has failed to place on record any material or evidence that such, fresh employment was for the same category or post or that it was not through the normal procedure prescribed i.e. through the Recruitment Board. In absence of such evidence, the Tribunal was not justified in giving mechanical finding that Section 25H of the Act was violated. The Tribunal has not noted, even in a cursory manner, or found as a matter of fact, that fresh hands were taken in an the same post or category and that one temporary hand was replacing another. In my view Section 25H would apply when all the foresaid ingredients are present. The third submission of the learned counsel for the petitioner also carries weight. It is trite to say that Section 25F does not control Section 25H but it is also correct to say that Section 25H merely gives a preference in fresh appointment but does not ipso facto a right for re-employment.
15. Mr. Agarwal, learned senior counsel for the respondent laid reliance on a decision of the Calcutta High Court in the case of Food Corporation of India Workers Union and Anr. v. Food Corporation of India 1993-I-LLJ-359, to show that Section 25G was applicable in the present case. In this case the employment was admittedly for twenty years and the employees were employed by the Agents of Food Corporation of India. Though Section 25G was called in question but the contract of appointment did not contain any agreement as in the present case. Similarly, the ratio decided in General Manager, Northern Railway, New Delhi v. Judge, Central Industrial Tribunal and Ors. 1994-III-LLJ (Suppl)- 754 (Raj) does not apply as in that case the employment was for one year and also no contrary agreement as envisaged in Section 25G were present. Similarly, the ratio of the decision rendered in Management of State Bank of India v. Swamp Narain Pandey and Ors., Writ Petition No. 12815 of 1986 decided on May 24, 1996, of this Court also is not applicable. In this case also, the view which I have already taken in so far as application of Section 25G is concerned, has been upheld.
16. In normal circumstances, the observations aforesaid would suffice the quashing of the impugned award of the Tribunal. But, the other contention of the learned counsel for the respondent has some force. This Court under Article 226 of the Constitution is also a Court of equity and while granting relief the Court ought to balance the equities between the parties. The workman concerned has been discharging his duties for the last more than fifteen years and there is nothing on record brought by any of the parties that the performance of the workman has not been up to the mark or he is not fit to continue in employment. The presumption would be that he is working to the full satisfaction of the management. In the present case counter affidavit by the workman was filed in October, 2000 while the rejoinder affidavit was filed in May, 2001 but there is no mention whatsoever, about the performance of the workman concerned in his employment. The Supreme Court in the case of Jacob M. Puthuparambil v. Kerala Water Authority AIR 1990 SC 2228 : 1991 (1) SCC 28 : 1991-11- LLJ-65, in paragraph 15 has held that it would be unfair and unreasonable to remove people who have been rendering service for a long period. The ratio of the said case, in my view, applies squarely to the facts of the present case. I am of the view that even though the award is Contrary to the provisions of law, the same cannot be set aside in its entirety. The workman who is working on the strength of the stay order of this Court would continue in the normal course in accordance to the relevant rules applicable to such workman. So far award of full back wages is concerned, the award is modified to the extent that back wages already granted by this Court vide order dated July 16, 1987 is made final and the workman would not be entitled to any other back wages etc., and would continue on the post on which he was initially appointed. Of course, he is entitled to the benefit of the length of his services.
17. In the result, the writ petition is partly allowed to the extent observed hereinabove and the respondent workman would continue on his post on the conditions mentioned hereinabove. No order as to costs.