IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4900/1997. Suresh Kumar Versus State Bank of India & Ors. Date of Order:- April 15, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Neeraj Kumar Bhatt for the petitioner. Shri Abhishek Pareek for the respondents. ***** BY THE COURT:-
This writ petition has been filed by the petitioner against the award of the Central Industrial Tribunal, Jaipur dated 4/6/1997 by which, question whether action of terminating services of petitioner w.e.f. 13/11/1982 and not considering his candidature for appointment in the Bank in accordance with the settlement dated 17/11/1987 entered into between the State Bank of India and the All India State Bank of India Staff Federation was justified and if not, to what relief the workman is entitled to, was answered in favour of the employment.
2) Contention of Shri Neeraj Kumar Bhatt, learned counsel for petitioner is that petitioner did apply for appointment in terms of the circular dated 24/4/1985 but his candidature was not considered by the respondents and he was not given benefit in accordance with settlement dated 17/11/1987 on the ground that only temporary and daily wage employees from different categories would be allowed to be absorbed. Subsequently, however, management issued Circular dated 6/4/1991 offering to consider such of the workmen who had rendered services to them on daily wage basis. Case of the petitioner fell within category C of the settlement. Learned counsel submitted that petitioner was never informed that he was required to apply in terms of the Circular dated 6/4/1991 and therefore he could not apply in terms of that advertisement published in the newspapers. Learned counsel submitted that even otherwise, an evidence was led before the Tribunal that after termination of service of petitioner, respondents engaged new person and therefore violation of Section 25H of the Industrial Disputes Act, 1947 (for short, Act of 1947) was clearly proved but that argument was illegally not considered by the learned Tribunal holding that every branch will be termed as a separate unit and therefore violation of Section 25H of the Act of 1947 is not made out. State Bank of India is within the territory of India and therefore for the purpose of Section 25H, it has been taken as one establishment. In support of his argument, learned counsel placed reliance on the judgments of this Court in SBCWP No.1170/90 (Prem Singh Vs. State of Raj. & Ors.) decided on 3/1/1992 and DBSAW No.25/1991 (Shiv Kumar Vs. State of Raj. & Ors.) decided on 1/10/1991. Learned counsel therefore prayed that the award of the Tribunal be set-aside and the petitioner be held entitled to absorption in the services of the respondents.
3) Per contra, Shri Abhishek Pareek, learned counsel for respondents opposed the writ petition and submitted that Circular dated 6/4/1991 was not only published in different newspapers but same was also affixed on the notice board inviting applications from those eligible persons who though eligible but could not apply for chance of permanent absorption pursuant to the advertisement dated 1/5/1991. In this connection, another advertisement was issued on 20/8/1991. Petitioner was personally informed vide letter dated 4/5/1991, which fact has been enumerated in para 4 of reply to the statement of claim filed by the respondents. Petitioner failed to respond the letter dated 4/5/1991. Learned counsel submitted that question as to applicability of Section 25H of the Act of 1947 shall have to be examined in the facts of the present case where respondents did offer to the petitioner opportunity of appointment which the petitioner failed to avail. In support of his argument, learned counsel placed reliance on the judgment of Supreme Court in Regional Manager, S.B.I. Vs. Rakesh Kumar Tewari : AIR 2006 SC 839 and it was argued that service rendered at two different places at different times cannot be clubbed together for the purpose of Sections 25F and 25G as held by the Division Bench at Principal Seat in Kusheshwar Mandal Vs. State of Raj. & Ors. : 2004 WLC (Raj.) UC 670.
4) Upon hearing learned counsel for parties and perusing the award, I find that there was indeed an offer made by the respondents to such of the employees, who were working with them on daily wage basis and were not considered for appointment in the first scale in terms of Settlement dated 17/11/1987. Respondents have substantiated the fact that advertisement inviting application from eligible temporary candidates was issued on 1/5/1991 and such notice was also affixed on the notice board of the concerned branch from eligible temporary candidates who could not apply pursuant to the aforesaid advertisement for permanent appointment. Respondents also reproduced in their reply to the statement of claim dated 12/5/1991. Although petitioner has disputed about receipt of this letter but that part that such advertisement being issued by the respondents inviting applications from eligible persons and having it notified on the notice board of the various branches including the branch where petitioner rendered service, but this is a factor which cannot be so easily ignored even if petitioner contend that he did not see the branch or newspaper where the said notice was published. Supreme Court in Rakesh Kumar Tewari supra while dealing with the similar issue where the workmen concerned were never offered themselves for re-employment held that direction of reinstatement of such workmen by the Tribunal was not sustainable in law. Contention that engagement of another employee in different branch after termination of petitioner should be taken as basis for holding violation of Section 25H and on that basis it should be held that petitioner would be entitled to reinstatement, cannot be accepted because in the present case, what is evident is that retrenchment of the petitioner was made way back on 13/11/1982 and admittedly when writ petition was filed after five years thereof, a direction was issued for making reference of the industrial dispute and when reference was made by the appropriate Government on 13/4/1997, the award was lateron was passed by the labour court on 4/6/1997. Argument of violation of Section 25G cannot be said to be applicable in the facts of the present case in view of offer being given by the respondents to the petitioner for his fresh appointment which the petitioner failed to avail for reasons which were not at all attributable to the management. Respondents acted in terms of the judgment of the Supreme Court in Rakesh Kumar Tewari supra. The petitioner therefore cannot be held entitled for reinstatement.
5) I do not find any merit in this writ petition, which is accordingly dismissed.
(MOHAMMAD RAFIQ), J.
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