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Rajasthan High Court · body

2006 DIGILAW 693 (RAJ)

S. B. B. J. v. Hakim Ali

2006-02-28

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-Instant petition is directed against award dated 04/06/1992 (Annexure-10) by Central Industrial Tribunal, Jaipur, whereby termination of respondent workman w.e.f. 12.01.1981 has been held to be illegal and directed to be reinstated in service with continuity in service but back wages from 12.01.1981 to 312.1985 was declined. 2.Facts, in brief , are that respondent workman was initially engaged as Collection Agent vide order dated 011.1978 (Annexure-1) and after working for almost two years, his services were terminated vide order dated 12.01.1981 (Annexure-10). He challenged his retrenchment by raising industrial dispute, to which a Reference was made by appropriate Government. Sole objection raised by petitioner before Tribunal was that there was no relationship of employer and employee as respondent did not fall in the ambit of term “workman” under Section 2(s) of Industrial Disputes Act, 1947 (“the Act”) as he was engaged as Collection Agent and was paid commission based on deposits collected from Bank customers; as such there was no requirement for petitioner to comply with Section 25-F of the Act. Tribunal, after taking into consideration objection, ibid, and so also other material on record, recorded finding that respondent was workman within the meaning of Section 2(s) of the Act and petitioner was under obligation to comply with mandatory requirement under Section 25-F of the Act as workman had worked for almost two years continuously in service and consequently directed for his reinstatement and while allowing continuity in service, since there was delay in approaching the authority, back wages for intervening period (from 12.01.1981 to 312.1985) was declined. Hence this petition. 3.Counsel for petitioner Bank has primarily only raised prime issue in writ petition that since respondent is not a workman within the meaning of Section 2(s) of the Act, as he was engaged as Collection agent and there was no relation of master and servant, as such provisions of the Act are not attracted and finding of the Tribunal is not legally sustainable and they were not liable to comply with requirement under the Act but after going through Judgment of Apex Court in Indian Banks Assocn. vs. Workmen of Syndicate Bank, 2001 (3) SCC p. 36, Counsel frankly conceded that Collection agents are workman within the meaning of Section 2(s) of the Act as held and provisions of the Act are applicable and as a result whereof , question raised in this petition in so far as it relates to applicability of the Act, does not survive any further. Counsel further contends that as he was appointed as Collection agent, his assignment was purely contractual and was paid commission on the amount of deposits collected by him; as such he was not a regular employee of the Bank and they are not comparable with those of regular employees even their work is also not comparable and are not entitled to pay scale, allowances and other service conditions of the regular employee of the Bank, and respondent workman is not in service for last 25 years and was appointed purely on contract basis as Collection agent and by such passage of time when there is no such Scheme functioning in the Bank of Collection Agent, he cannot be now reinstated in service of the Bank in terms of impugned Award and in that eventuality, adequate compensation which this Court may consider proper in lieu of reinstatement, be awarded to him. 4.Counsel for respondent workman supported the award and urged that there is no material placed on record to show that the Scheme is not functioning, in the absence whereof , workman is entitled for reinstatement as Collection agent or on other equivalent or equated post particularly when petitioner has failed to comply with mandatory provisions of Section 25 -F of the Act; and as a logical consequence of which respondent is entitled for reinstatement with back wages as awarded by Tribunal. 5.So far as grant of compensation is concerned, Counsel for respondent relied upon decision of Apex Court in Punjab Land Devt. & Recl. Corpn vs. P.O. Labour Court, Chandigarh, 1990 (2) LLJ 70 (SC) and so also of this Court in Resident Engineer vs. Lakhpati, 2003 (4) RLW 2509, and submitted that if this Court comes to conclusion that he cannot be reinstated then atleast in lieu of reinstatement, adequate compensation be considered to be awarded in facts and circumstances of the case. 6.I have considered rival contentions of the parties and with their assistance, examined material on record. 6.I have considered rival contentions of the parties and with their assistance, examined material on record. This fact remains undisputed that in view of Judgment of Apex Court in Indian Banks Assocn. vs. Workmen of Syndicate Bank (Supra), respondent is a workman within meaning of Section 2(s) of the Act and petitioner was under obligation to comply with Section 25-F, which indeed has not been complied with. But while upholding finding of non-compliance of Section 25-F, this fact cannot be ignored that respondent had worked for almost 2 years from 1978 to 1981 and he is not in service for almost 25 years and nature of work which he had discharged in Office of petitioner Bank is of such nature which was under a scheme which too is no more in existence with the Bank and that apart he raised dispute after six years of his impugned retrenchment and even if he is to be reinstated in terms of the award obviously as Collection Agent on contract basis and he cannot be considered to be regular employee of the Bank. Undeniably, at the time of his retrenchment, he was being paid remuneration in the nature of Commission computed on collection of deposits and that apart, possibility of respondent workman remaining employed else where during this intervening period of 25 years cannot be ruled out altogether and his reinstatement may result in further complications and administrative difficulties particularly when there is no such post like Commission Agent existing in the petitioner Bank in view of the non-existence of Scheme under which workman was initially engaged on contract basis and in that eventuality, logical course to be adopted is to be awarded appropriate compensation in the facts of the case, as held by Apex Court in Punjab Land Devt. & Recl. Corpn vs. P.O. Labour Court, Chandigarh & in Resident Engineer vs. Lakhpati (Supra), where workman had worked as Bhisti from 012.1979 to 01.09.1983 on daily wages basis, this Court considered Rs. 75,000/-as appropriate compensation in lieu of reinstatement. 7.Taking an overall conspectus of the matter and Judgment s, ibid, I consider Rs. 75,000/-as compensation to be paid in lieu of reinstatement of respondent workman, which will meet ends of justice. 8.Consequently, the writ petition is partly allowed and petitioner is directed to make payment of Rs. 75,000/-as appropriate compensation in lieu of reinstatement. 7.Taking an overall conspectus of the matter and Judgment s, ibid, I consider Rs. 75,000/-as compensation to be paid in lieu of reinstatement of respondent workman, which will meet ends of justice. 8.Consequently, the writ petition is partly allowed and petitioner is directed to make payment of Rs. 75,000/-as compensation on full and final settlement to respondent workman in lieu of reinstatement and back wages and to that extent, impugned award dated 04.06.1992 (Annexure-10) stands modified. Petitioner Bank shall make payment of Rs. 75,000/-(ibid) to respondent workman within one month from today. No costs.