LPA No. 350 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 350 of 2009 (O&M)
Date of decision: November 30, 2009
State Bank of India ...Appellant
Versus
Presiding Officer and another ...Respondents
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE GURDEV SINGH
Present: Mr. Kapil Kakkar, Advocate for the appellant.
ORDER
1. This appeal has been preferred against the order of learned
Single Judge, dismissing the writ petition against the order of Labour Court
by which claim of respondent No. 2 under Section 33-C (2) of the Industrial
Disputes Act, 1947 (hereinafter referred to as the Act) for backwages from
16.1.1976 to 19.9.1980, amounting to Rs. 34,966.70 with interest, was
allowed.
2. The contesting respondent–workman was employed as
temporary Clerk-cum-Cashier for a period 28.8.1972 to 13.1.1973 and
26.11.1973 to 4.5.1974 when his services were terminated for failing in
departmental test. He had not completed 240 days service prior to
termination. The workman did not take any remedy against the order of
termination.
3. In similar circumstances, case of another workman was decided
by Hon’ble Supreme Court in State Bank of India versus N. Sundra Money
LPA No. 350 of 2009 2
A.I.R. 1976 Supreme Court 1111 and it was held that Section 2 (oo) of the
Act was applicable to termination “for any reason whatsoever” and, thus,
even if termination of workman was for not passing written test, it
amounted to retrenchment and if there was violation of Section 25-F, the
workman was entitled to reinstatement with backwages. In view of this
judgment, the Bank reached agreement dated 22.8.1977 to reinstate
similarly placed workmen whose services were terminated after completion
of 240 days. The workman in the present case neither claimed nor was
reinstated according to the said agreement. Later the Bank issued a policy
dated 26.9.1979 of conducting a fresh test and to re-employ the workman
who may pass such test, even if they had not completed 240 days of service
but had completed 270 days total service, prior to 30.6.1975. Case of the
workman was covered by the said policy and accordingly he was given
opportunity to appear in the test held on 25.5.1980 which he passed. He
was given fresh appointment on 19.9.1980.
4. The workman filed petition under Section 33-C (2) of the Act
on 9.3.1988 claiming backwages from 16.1.1976 to 19.9.1980, relying on
agreement dated 22.8.1977. The said claim was opposed by the Bank. The
Labour Court as well as learned Single allowed the said claim holding that
case of the workman was covered by agreement dated 22.8.1977.
5. We have heard learned counsel for the appellant.
6. It is pointed out that agreement dated 22.8.1977 was applicable
only to the workmen whose services were terminated after completion of
240 days and whose case was covered by the judgment of Supreme Court in
N. Sundra Money (supra). In the present case, the claim of the workman
was covered by the later policy dated 26.9.1979 and as per this he was given
LPA No. 350 of 2009 3
opportunity to appear in written test and was given fresh appointment on
passing the test. Thus, there was no question of backwages.
7. Prima facie, on a perusal of agreement Annexure P/1 and Policy
Annexure P/5, we find that distinction put forward exists. The matter
requires consideration.
8. Admitted. To be heard within one year.
9. Stay operation of impugned order.
(ADARSH KUMAR GOEL)
JUDGE
November 30, 2009 (GURDEV SINGH )
prem JUDGE