{"id":220616,"date":"2006-01-03T00:00:00","date_gmt":"2006-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/regional-manager-s-b-i-vs-rakesh-kumar-tewari-on-3-january-2006"},"modified":"2015-11-27T11:31:37","modified_gmt":"2015-11-27T06:01:37","slug":"regional-manager-s-b-i-vs-rakesh-kumar-tewari-on-3-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/regional-manager-s-b-i-vs-rakesh-kumar-tewari-on-3-january-2006","title":{"rendered":"Regional Manager, S.B.I vs Rakesh Kumar Tewari on 3 January, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Regional Manager, S.B.I vs Rakesh Kumar Tewari on 3 January, 2006<\/div>\n
Author: R Pal<\/div>\n
Bench: Ruma Pal, Dr.Ar.Lakshmanan<\/div>\n
           CASE NO.:\nAppeal (civil)  7 of 2006\n\nPETITIONER:\nRegional Manager, S.B.I.\n\nRESPONDENT:\nRakesh Kumar Tewari\n\nDATE OF JUDGMENT: 03\/01\/2006\n\nBENCH:\nRuma Pal & Dr.AR.Lakshmanan\n\nJUDGMENT:\n<\/pre>\n
J U D G E M E N T<\/p>\n
(Arising out of Special Leave Petition (Civil) No.20653 of 2003)
\nWITH
\nC.A.Nos.8-9 of 2006
\n(Arising out of SLP (C) Nos.20003-20004 of 2004)<\/p>\n
RUMA PAL, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThe respondent was employed as a messenger
\non a daily wage in a branch of the appellant Bank.
\nNo appointment letter was issued to him but he
\nworked for 87 days in that capacity.  The question in
\nthis appeal is whether the Labour Court had correctly
\nfound that the termination of the respondent’s
\nservice in 1982 was violative of Section 25G of the
\nIndustrial Disputes Act, 1947 (referred to as the
\n‘Act’).\n<\/p>\n
After the respondent ceased to serve with the
\nappellant on 5th October, 1982, the respondent
\nraised a demand under Section 33-C (2) of the Act
\nbefore the Labour Court praying for an amount of Rs.
\n148.74 towards his wages for 8 days holidays
\n(including Sundays) which occurred during the
\nperiod of his employment. The appellant accepted
\nthe demand and paid an amount of Rs. 155.23 to the
\nrespondent which was accepted by the respondent in
\nfull and final satisfaction of his claim.  About one
\nyear later, in 1984, the  respondent raised an
\nindustrial dispute claiming  that his services had
\nbeen wrongfully terminated by the appellant. The
\nCentral Government referred the following disputes
\nto the Industrial Tribunal:\n<\/p>\n
 “Whether the action of the management of
\nState Bank of India, Region-III, Lucknow, in relation
\nto their Gonda Main Branch in terminating the
\nservices of Shri Rakesh Kumar Tewari, subordinate
\nstaff with effect from 6.10.1982 and not considering
\nhim for further employment under Section 25H of
\nthe Industrial Disputes Act is justified? If not, to
\nwhat relief is the concerned workman entitled?”
\nThe respondent filed a statement before the
\nTribunal in which he claimed that he had been
\nappointed by the appellant as a whole time employee
\nagainst a vacancy in a permanent post.  He said that
\nafter his discharge other employees were taken in
\nservice against the same post, but he was not given
\na chance to continue. He challenged the non-issue of
\nappointment and termination letters as being in
\nviolation of “service conditions provided in different
\nbank awards as well as bipartite settlement”. It was
\nalleged that the bank had violated the provisions of
\nSection 25H of the Act and also paragraph 497 of the
\nShastri Award which was applicable to the Bank.
\nThe appellant filed a written statement opposing
\nthe claim of the respondent.  A preliminary objection
\nraised was that after recording  of full satisfaction of
\nhis claim against the appellant, the respondent was
\nbarred by the principles of res judicata from raising
\nan industrial dispute.  On the merits of the case it
\nwas contended that the services of the respondent
\nhad been validly terminated upon the payment of all
\nhis dues. It was denied that the respondent had
\nbeen appointed against any vacancy.  It was stated
\nthat he was engaged against a purely “temporary\/ad
\nhoc requirement of the said branch of the bank”.
\nThe Labour Court found that two employees,
\nnamely, Shri Pawan Kumar and Rakesh Kumar
\nTewari had been appointed as temporary workmen,
\nthe first between August, 1982 to December, 1982
\nand the second from January, 1983 to April, 1983.
\nIt was held that therefore the service of Pawan
\nKumar should have been dispensed with and not the
\nrespondent’s.  Furthermore, according to the
\nTribunal, there was a clear violation of Sections 25G
\nand 25H of the Act. It was also held that the
\nrespondent was not a casual but a temporary
\nworkman in terms of paragraph 207 of the bipartite
\nsettlement. It was held that in terms of the
\nsettlement, the bank should have maintained a
\nregister of all temporary employees and a service
\nbook and should have issued an appointment and
\ntermination letter to the respondent. According to
\nthe Tribunal 14 days notice of retrenchment was also
\nrequired to be given which had not been complied
\nwith.  Section 25G of the Act and Rule 78 of the
\nIndustrial Disputes Act Central Rules was held to
\nhave been violated. Circulars issued by the
\nManagement being circulars Nos. 168\/76 and 69\/81
\nwhich prohibited the employment of temporary
\nemployees beyond 90 days and the termination of
\nservice of temporary employees after 89 or 90 days
\nwas held to be unfair labour practice. In conclusion it
\nwas held that the termination of the services of the
\nrespondent was illegal and inoperative and that the
\nrespondent was entitled to be reinstated with full
\nback wages.\n<\/p>\n
The appellant challenged the award under Article
\n226 of the Constitution before the High Court.  The
\nHigh Court upheld the view expressed by the Labour
\nCourt and said that the Labour Court was right and
\nthat the appellant’s appointment amounted to unfair
\nlabour practice and was against the mandate of
\nSection 25H of the Act.\n<\/p>\n
The appellant challenged the decision of the
\nHigh Court by way of a Special Leave Petition under
\nArticle 136 of the Constitution.  While issuing notice
\non 17th November, 2003, this Court stayed the
\noperation of the High Court’s order.  In the
\nmeantime and during the pendency of the
\nproceedings before the High Court the appellant has
\npaid the respondent a sum of approximately Rs. 3.80
\nlakhs under Section 17-B of the Act.
\nMr. V.A.Bobde, learned counsel appearing on
\nbehalf of the appellant, has contended that there
\nwas no unfair labour practice indulged in by the
\nappellant as defined in Section 2(ra) read with the
\n5th  Schedule item 10 of the Act.  It was also
\ncontended that the case for violation under Section
\n25G had never been pleaded by the respondent in
\nhis statement of claim nor was any such alleged
\nviolation referred to the Industrial Tribunal for
\nadjudication. It was submitted that Section 25G did
\nnot in any event apply as the procedure for
\nretrenchment as defined in section 2(oo) of the Act
\ndid not apply to persons on a daily-wage. Reliance
\nhas been placed on the decision of Regional
\nManager, State Bank of India Vs. Raja Ram,
\n(2004) 8 SCC 164, and Himanshu Kumar
\nVidyarthi  & Ors. Vs. State of Bihar & Ors.
\n(1997) 4 SCC 391. It was contended that Section
\n25H which requires an employer to give re-
\nemployment to a  retrenched workman in preference
\nover other persons did not for that reason apply.  In
\nany event it had been complied with.  Three
\nadvertisements had been issued by the appellant
\ncalling upon retrenched employee to offer
\nthemselves for reemployment but the respondent did
\nnot apply.\n<\/p>\n
Mr Nagendra Rao appearing in SLP (C) Nos.
\n20003-20004 of 2004, State Bank of India Vs.
\nKanhaiya Lal Sahu has also supported the
\nsubmissions of Mr. Bobde and has adopted his
\nsubmissions.  In his case however, the period of
\nservice was 98 days between July,1980 to March,
\n1981 on daily wages. In that case also the Labour
\nCourt had held that the termination of the
\nworkman’s services was not justified and directed
\nthe reinstatement of the workman with full back
\nwages.  The application filed by the appellant before
\nthe High Court under Article 226 was  dismissed on
\nthe ground that in compliance with an interim order
\npassed by the High Court the appellant had
\nreinstated the workman and the workman had been
\ncontinuing in service for the last 16 years.  The High
\nCourt however allowed the writ petition to the extent
\nthat the Labour Court had  directed the payment of
\nback wages.  It needs to be mentioned here that
\nuntil the order was passed by the High Court
\ndisposing of the writ petition, the respondent had
\nbeen paid approximately Rs.200902\/-on account of
\nsalary.  The appellant filed a review application
\nstating that the  respondent had in fact not been
\nreinstated but had been paid idle wages without
\ntaking any work from him in terms of the liberty
\ngranted to the appellant by an interim order of the
\nHigh Court.  However, the review petition was
\ndismissed by merely recording that there was no
\nground for review.  Apart from this factual error, Mr.
\nRao has emphasized that Section 25H could not be
\nsaid to have been violated.  It was further argued
\nthat the employees who would be affected by the
\naward of the Labour Court had not been made
\nparties in violation of Rule 3 of the Industrial Dispute
\n(Central) Rules 1957.\n<\/p>\n
Learned counsel appearing on behalf of the
\nrespondents in both the appeals has submitted that
\nthe definition of retrenchment had undergone an
\namendment in 1984, whereas both the terminations
\nin question had taken place prior thereto.  In terms
\nof the unamended definition, daily wage employees
\nwhose services were terminated were also
\nretrenched. Reliance has been placed on the
\ndecisions in Central Bank of India Vs. S. Satyam
\n& Ors. (1996) 5 SCC 419 ;  Workmen of Subong
\nTea Estate Vs. The Outgoing Management of
\nSubong Tea Estate & Anr. (1964) 5 SCR 602;
\nPunjab Land Devl. & Reclamation Corpn. Ltd.
\nVs. Presiding Officer, Labour Court (1990) 3
\nSCC 682, L.Robert D’Souza Vs. The Executive
\nEngineer, Southern Railway & Anr. (1982) 3
\nSCR 251 and S.M. Nilajkar & Ors. Vs. Telecom
\nDistrict Manager, Karnataka, (2003) 4 SCC 27,
\nto contend that in the circumstances of the case the
\nfinding of the Tribunal that the services of the
\nworkmen had been illegally retrenched and that they
\nwere entitled to reinstatement and backwages was
\ncorrect.\n<\/p>\n
Both civil appeals arising out SLP(Civil) No.
\n20653 of 2003 and SLP(Civil) Nos.20003-20004 of
\n2004 which are referred to respectively as the first
\nand second appeal, are disposed of by this
\njudgment.\n<\/p>\n
Section 25G provides for the procedure for
\nretrenchment of a workman.  The respondents have
\ncorrectly submitted that the provisions of Sections
\n25G and 25H of the Act do not require that the
\nworkman should have been in continuous
\nemployment within the meaning of Section 25B
\nbefore he could said to have been retrenched.  The
\ndecision in Central Bank of India v. S. Satyam<\/a>
\n(1996) 5 SCC 419  is clear authority on the issue.
\nWe see no reason to take a contrary view.
\nSection 25G requires the employer to “ordinarily
\nretrench the workman who was the last person to be
\nemployed in a particular category of workman unless
\nfor reasons to be recorded the employer retrenches
\nany other workman”.  This “last come first go”, rule
\npredicates. 1) that the workman retrenched belongs
\nto a particular category; 2) that there was no
\nagreement to the contrary;3) that the employer had
\nnot recorded any reasons for not following the
\nprinciple. These are all questions of fact in respect of
\nwhich evidence would have to be led,  the onus to
\nprove the first requirement being on the workman
\nand the second and third requirements on the
\nemployer.  Necessarily a fair opportunity of leading
\nsuch evidence must be available to both parties.
\nThis would in turn entail laying of a foundation for
\nthe case in the pleadings.  If the plea is not put
\nforward such an opportunity is denied, quite apart
\nfrom the principle that no amount of evidence can be
\nlooked into unless such a plea is raised. [See Siddik
\nMahomed Shah  vs. Mt. Saran  AIR 1930 PC 57
\n(1); Bondar Singh & Or.  Vs.Nihal Singh and
\nOrs.  (2003) 4 SCC 161].\n<\/p>\n
In J.K.Iron and Steel Company Ltd. vs. The
\nIron and Steel Mazdoor Union Kanpur<\/a>  (1955) 2
\nSCR 1315, the court noted that even though
\nindustrial tribunals are not bound by all technicalities
\nof civil courts:\n<\/p>\n
“.they must nevertheless follow
\nthe same general pattern.  Now the
\nonly point of requiring pleadings and
\nissues is to ascertain the real dispute
\nbetween the parties, to narrow the area
\nof conflict and to see just where the
\ntwo sides differ.  It is not open to the
\nTribunals to fly off at a tangent and
\ndisregarding the pleadings, to reach
\nany conclusions that they think are just
\nand proper”.\n<\/p>\n
\tIn the first appeal, the respondent had raised no
\nallegation of violation of Section 25G in his
\nstatement of claim before the Industrial Tribunal.
\nHis only case was that Section 25H of the Act had
\nbeen violated.  Section 25H unlike Section 25G deals
\nwith a situation  where the retrenchment is  assumed
\nto have been validly made.  In the circumstances, if
\nthe employer wishes to re employ any employee, he
\nmust offer to employ retrenched workman first and
\ngive them preference over others.  The two sections
\nviz 25G and 25H therefore operate in different fields
\nand deal with two contradictory fact situations.  The
\nTribunal ignored the fact that there was no pleading
\nby the respondent in support of an alleged violation
\nof Section 25G.  Indeed the order of reference by the
\nCentral Government did not also refer to Section 25G
\nbut only to Section 25H.  In the circumstances it was
\nnot open to the Tribunal to “go off on a tangent”
\nand conclude that the termination of service of the
\nrespondent was invalid because of any violation of
\nSection 25G by the appellant.\n<\/p>\n
\tBesides the Tribunal in both appeals did not
\nconsider the plea of the appellant that there was no
\nvacancy against which the respondent had been
\nappointed and that it was merely an ad hoc
\narrangement.  In taking into consideration the
\nnames of the two employees who were appointed
\ntemporarily after the termination of services of the
\nrespondent, the Tribunal did not also consider in
\nwhat capacity these persons had been appointed
\nnamely whether they were actually appointed as
\nmessenger  in place of the respondent.
\nThe respondent’s case in the first appeal of
\nviolation of paragraph 497 of the Shastri Award was
\nalso wholly misconceived.  That paragraph deals with
\nthe rights of apprentices and has no application to
\ntemporary employees like the respondent. Assuming
\nthat there was a violation of the Shastri Award by
\nthe appellant in both cases either in not issuing
\nappointment letters or not maintaining a seniority
\nlist, service book in respect of temporary employees
\netc., this would not mean that therefore the
\nrespondents had been properly appointed and their
\nservices wrongly terminated.  Admittedly no
\nprocedure whether in law or under any award or
\nsettlement was followed in appointing either of the
\nrespondents in both appeals. No condition of services
\nwere agreed to and no letter of appointment was
\ngiven.  The nature of the respondents’ employment
\nwas entirely ad hoc.  They had been appointed
\nwithout considering any rule.  It would be ironical if
\nthe person who have benefited by the flouting of the
\nrules of appointment can rely upon those rules when
\ntheir services are dispensed with.
\nThe Tribunal also failed to deal with the issue
\nraised by the appellant in the first appeal that no
\ngrievance had been made nor any demand raised by
\nthe respondent either in his application under
\nSection 33 C (2) or otherwise that his services had
\nbeen illegally terminated. It may be that the
\nprinciples of res judicata may not disqualify the
\nrespondent from contending that his termination was
\ninvalid, nevertheless non raising of the issue earlier
\nwas a factor which the Tribunal should have taken
\ninto consideration in weighing the evidence.
\nSignificantly the High Court upheld the decision of
\nthe Tribunal as if the Tribunal had proceeded under
\nSection 25H. As we have said Section 25H proceeds
\non the assumption that the retrenchment has been
\nvalidly made.  Therefore, the High Court’s view that
\nthe termination was invalid under Section 25H
\ncannot in any event be sustained.\n<\/p>\n
Section 25H says:\n<\/p>\n
“25H. Re-employment of
\nretrenched workmen.- Where
\nany workmen are retrenched, and
\nthe employer proposes to take into
\nhis employ any persons, he shall,
\nin such manner as may be
\nprescribed, give an opportunity to
\nthe retrenched workmen who are
\ncitizens of India to offer
\nthemselves for re-employment,
\nand such retrenched workmen who
\noffer themselves for re-\n<\/p>\n
employment shall have preference
\nover other persons”.\n<\/p>\n
A statutory obligation is thus cast on the
\nemployer to give an opportunity to the retrenched
\nworkman to offer himself for re-employment.
\n\tIn fact pursuant to settlements entered into
\nbetween the appellant and the employees’ union,
\nseveral advertisements had been issued by the
\nappellant offering re-employment to retrenched
\nworkers.  It may be that these facts were not raised
\nby the appellant either before the Tribunal or the
\nHigh Court, but as was said in Regional Manager
\nSBI vs. Raja Ram (2004) 8 SCC 164 at p. 168:
\n“However the respondent’s counsel
\nis incorrect in his submission that
\nthe benefit of the Scheme could
\nnot have been availed of by the
\nrespondent because no offer was
\nmade to the respondent by the
\nappellant.  The settlements were
\nadvertised and it was for the
\nrespondent to have taken
\nadvantage of the Scheme.\n<\/p>\n
Although the settlements are,
\nstrictly speaking, not relevant to
\nthe question of the correctness of
\naward, nevertheless their terms
\nare necessary to be considered for
\nthe purpose of deciding whether,
\nassuming everything in favour of
\nthe respondent and against the
\nappellant, the respondent should
\nbe reinstated as a casual employee
\nsince the Scheme had been
\npropounded by the employer with
\nworkmen with a view to granting
\nbenefit to persons whose services
\nhad been terminated as casual
\nemployees”.\n<\/p>\n
\tNeither of the respondents in the appeals had
\noffered themselves for re-employment.
\nThe conclusion of the Tribunal in both appeals
\nthat the circulars endorsed an unfair labour practice
\nbeing followed by the appellant or that the appellant
\nhad indulged in unfair labour practice was also
\nincorrect.  Unfair labour practice has been defined in
\nClause (ra) of Section 2 of the Act as a meaning any
\nof the practices specified in the Fifth  Schedule.  The
\nFifth Schedule to the Act contains several items of
\nunfair labour practices on the part of the employer
\non the one hand and on the part of workmen on the
\nother.  The relevant item is Item 10 which reads as
\nfollows:\n<\/p>\n
“To employ workmen as ‘badlis’,
\ncasuals or temporaries and to
\ncontinue them as such for years,
\nwith the object of depriving them of
\nthe status and privileges of
\npermanent workmen”.\n<\/p>\n
\tWe have already dealt with this issue in Raja
\nRam’s case (supra) where we had said:
\n“before an action can be termed as
\nan unfair labour practice it would
\nbe necessary for the Labour Court
\nto come to a conclusion that the
\nbadlis, casuals and temporary
\nworkmen had been continued for
\nyears, as badlis, casuals or
\ntemporary workmen, with the
\nobject of depriving them of the
\nstatus and privileges of permanent
\nworkmen.  To this has been added
\nthe judicial gloss that artificial
\nbreaks in the service of such
\nworkmen would not allow the
\nemployer to avoid a charge of
\nunfair labour practice.  However, it
\nis the continuity of service of
\nworkmen over a period of years
\nwhich is frowned upon.  Besides, it
\nneeds to be emphasized that for
\nthe practice to amount to unfair
\nlabour practice it must be found
\nthat the workman had been
\nretained on a casual or temporary
\nbasis with the object of depriving
\nthe workman of the status and
\nprivileges of a permanent
\nworkman. There is no such finding
\nin this case.  Therefore, Item 10 in
\nList I of the Fifth Schedule to the
\nAct cannot be said to apply at all to
\nthe respondent’s case and the
\nLabour Court erred in coming to
\nthe conclusion that the respondent
\nwas in the circumstances, likely to
\nacquire the status of a permanent
\nemployee”.\n<\/p>\n
\tWe see no reason to take a contrary view
\nparticularly when the facts in Raja Ram’s case are
\nmaterially indistinguishable from those in the
\nappeals now before us.\n<\/p>\n
\tIn directing reinstatement, neither the High
\nCourt nor the Tribunal had considered that the order
\nmight affect the interest of those others who were
\nemployed after the respondent.  As was said in
\nCentral Bank of India vs. S. Satyam<\/a> (supra):
\n“The other persons employed in
\nthe industry during the intervening
\nperiod of several years have not
\nbeen impleaded.  Third party
\ninterests have arisen during the
\ninterregnum.  These third parties
\nare also workmen employed in the
\nindustry during the intervening
\nperiod of several years.  Grant of
\nrelief to the writ petitioners
\n(respondent herein) may result in
\ndisplacement of those other
\nworkmen who have not been
\nimpleaded in these proceedings, if
\nthe respondents have any claim for
\nre-employment”.\n<\/p>\n
Besides in the second appeal admittedly
\nseveral persons had been appointed prior to the
\nrespondent on a temporary basis.  They would have
\nprior rights to reemployment over the respondent
\non the basis of the principles contained in Sections
\n25G or 25H.\n<\/p>\n
In the circumstances, the award of the Tribunal
\nand the decision of the High Court holding that the
\nrespondent’s services were wrongfully terminated
\nwere both incorrect.  They are accordingly set
\naside. There is as such no question of payment of
\nany back wages. Additionally the only other reason
\ngiven by the High Court for directing reinstatement
\nof the respondent in the second appeal was based
\non an equitable consideration of the respondent
\nhaving allegedly been reinstated.  The factual basis
\nfor this conclusion was erroneous.  Both appeals are
\naccordingly allowed. However the appellant has
\npaid sums to the respondents in both the cases
\nwhich  sums    shall  not be  recoverable  from   the <\/p>\n
respondents by reason of the allowing of these
\nappeals.   There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Regional Manager, S.B.I vs Rakesh Kumar Tewari on 3 January, 2006 Author: R Pal Bench: Ruma Pal, Dr.Ar.Lakshmanan CASE NO.: Appeal (civil) 7 of 2006 PETITIONER: Regional Manager, S.B.I. RESPONDENT: Rakesh Kumar Tewari DATE OF JUDGMENT: 03\/01\/2006 BENCH: Ruma Pal & Dr.AR.Lakshmanan JUDGMENT: J U D G E M E N […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-220616","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRegional Manager, S.B.I vs Rakesh Kumar Tewari on 3 January, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/regional-manager-s-b-i-vs-rakesh-kumar-tewari-on-3-january-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Regional Manager, S.B.I vs Rakesh Kumar Tewari on 3 January, 2006 - 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