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Allahabad High Court · body

2007 DIGILAW 1032 (ALL)

KAILASH NATH GUPTA v. BRIJ MOHAN

2007-04-19

S.U.KHAN

body2007
JUDGMENT Hon’ble S.U. Khan, J.—At the time of argument, no one on behalf of contesting respondents was present hence only the arguments of learned Counsel for the petitioner were heard. 2. The relevant pedigree through which contesting parties are related to each other is given below : Mata Dayal------------------------------------------Ram Lal / / Mathura--------------------------------Makdum Shitla Prasad / / / /----------------/ --------------------------- Brij Mohan Radhey / / Res.No. 1 Shyam / / Res.No. 2 Chameli = Hira Lal Lakhpati = Jagannath / / / Kailash Nath Petitioner ----------------------------------------------------- / / / / Shiv Shanker Munna Lal Paras Nath Ghanshyam Das Res.No. 4 3. Mathura was issueless. His brother Makdum had two daughters Chameli Devi and Lakhpati. Smt Lakhpati had only one son Kailash Nath Gupta, the petitioner. Smt. Chameli Devi had four sons, Shiv Shanker and three others. Mathura on 18.4.1944, executed a will deed bequeathing his property including four houses to petitioner and Shiv Shanker jointly. Afterwards Smt. Chameli asserted that Mathura executed another will on 21.10.1948 bequeathing his property in favour of the other sons of Smt. Chameli i.e. Munna Lal, Paras Nath and Ghanshyam Das. In respect of agricultural property bequeathed by Mathura dispute arose in mutation proceedings and it appears that the case of petitioner Kailash Nath Gupta and Shiv Shanker was accepted and it was held that the first will executed by Mathura dated 18.4.1944 was his last will meaning thereby that the subsequent alleged will dated 21.10.1948 was not found to have been executed by Mathura. 4. Admittedly in the year 1944 petitioner and Shiv Shankar were minors. 5. Petitioner filed a suit basically against Shiv Shanker for partition of the four houses bequeathed through the will of 1944 being O.S. No. 10 of 1964 before Civil Judge Jaunpur. However, in the suit Chameli Devi and her other three sons were also impleaded as defendants. It was alleged in the plaint of the said suit that by virtue of will of 1944 plaintiff petitioner and Shiv Shanker defendant No. 1 were joint owners of the four houses. It was further alleged that the other defendants were being impleaded in order to avoid any complication or dispute, however, they had no right in the suit property i.e. four houses. During the trial of the said suit, one Ram Pratap was examined as defendant’s witness. It was further alleged that the other defendants were being impleaded in order to avoid any complication or dispute, however, they had no right in the suit property i.e. four houses. During the trial of the said suit, one Ram Pratap was examined as defendant’s witness. While his examination was in progress he stated that earlier the matter had been referred to arbitration and he was one of the arbitrators and arbitrators had given award on 26.5.1949 which was registered. Sri Ram Pratap filed copy of the registered award in the suit during his examination whereupon a Misc. Case No. 17 of 1965 was registered by the same Court under Section 14 of Arbitration Act 1940. The said Misc. Case was dismissed on 18.11.1965 on the sole ground that original award had not been filed hence arbitration proceedings were misconceived and not maintainable. However, 8 days before the said order i.e. on 10.11.1965, original award had already been filed in the Court. Against order dated 18.11.1965, a revision was filed in this Court being Civil Revision No. 191 of 1966. The said revision was dismissed on 18.9.1968, copy of the judgment is Annexure 6 to the writ petition. The complete order dated 18.9.1968, is quoted below : “I agree with the Court below that the Court could not act on the basis of the certified copy of the award. The original award or signed copy thereof should have been filed as prescribed by Section 14(2) of the Arbitration Act. The original award was, however, filed on 10th November 1965. It will be open to the Court below to issue notice of the filing of that award and to proceed in accordance with law. With these observations this application in revision is dismissed with costs. Signed S.K. Verma 18.9.1968" 6. In view of the observations of the High Court in the above order a fresh suit in the form of suit No. 102 of 1971 was registered on the basis of original award (it is not clear that why the suit was registered after about 3 years). In the said suit notices were issued. Petitioner filed objections, which were registered as suit No. 67 of 1972. Both the suits were disposed of together by common judgment and Civil Judge, Jaunpur rejected the objections of the petitioner and made the award, rule of the Court through judgment and order dated 29.2.1980. In the said suit notices were issued. Petitioner filed objections, which were registered as suit No. 67 of 1972. Both the suits were disposed of together by common judgment and Civil Judge, Jaunpur rejected the objections of the petitioner and made the award, rule of the Court through judgment and order dated 29.2.1980. Against the said judgment and order petitioner filed Misc. Civil Appeal No. 98 of 1980 and Civil Revision No. 111 of 1980. Appeal and Revision were heard and disposed of together by IIIrd Additional District Judge Jaunpur through order dated 31.8.1988, dismissing both of them. Through this writ petition the aforesaid judgments and order dated 29.2.1980 passed by the Civil Judge, Jaunpur and order dated 31.8.1988 passed by the IIIrd A.D.J Jaunpur have been challenged. 7. Both the Courts below rejected the objections of the petitioners mainly on the ground of delay placing reliance upon AIR 1962 SC 666 , S.S Ningashetty v. K.S. Ningashetty. Supreme Court in the said authority held that notice of filing of the award need not be in writing and in case award was filed within the knowledge of the parties then the limitation to file objection started from the actual knowledge and not from the date of service of notice. Similar view has been taken in Indian Rayon Corpn. v. Raunaq and Company, A.I.R. 1988 S.C. 2054. 8. However, both the Courts below have rejected the objections of the petitioners on merits also. 9. As far as the question of limitation is concerned, in my opinion, the view taken by both the Courts below is erroneous in law. Even though the original award had been filed on 10.11.1965, however, on 18.11.1965 Misc. Case No. 17 of 1965 registered under Section 14 of Arbitration Act had been dismissed on the ground that the said case had been initiated on registered copy of the award. Neither the Court nor any of the parties had any intention of taking or participating in any further proceeding on the basis of filing of the original award. 10. Unless an award is filed with the prayer for making it rule of the Court, no valid proceeding can be initiated. It was also observed by the Civil Judge in its order dated 18.11.1965 dismissing Misc. Case No. 19 of 1975. Accordingly mere filing of the original award without any proper application was no proper filing of award. 10. Unless an award is filed with the prayer for making it rule of the Court, no valid proceeding can be initiated. It was also observed by the Civil Judge in its order dated 18.11.1965 dismissing Misc. Case No. 19 of 1975. Accordingly mere filing of the original award without any proper application was no proper filing of award. If the High Court had not passed the aforesaid order dated 18.9.1968 then no proceedings would have been initiated on the basis of filing of original award. Even the case on the basis of filing of original award was registered in 1971. Neither the High Court in the above order dated 18.9.1968 nor the trial Court considered it permissible or proper to permit to continue/continue with the case which was registered on the basis of filing of copy of award i.e. Misc. Case No. 17 of 1965. In view of this, limitation could not start from the date of filing of award i.e. 10.11.1965. Moreover, when copy of award was filed, petitioner filed his objections. On 17.11.1965 petitioner filed an application praying that his written statement/objections filed against copy of award be taken on record. The objections which were perfectly within time could very well be treated to be the objection against award. In para-29 of the writ petition it has been stated that vide trial Court’s order dated 11.12.1971 original award was taken out from the record of O.S. No. 17 of 1965 and was kept in the file of O.S. No. 102 of 1971. The contention of the petitioner raised in the said paragraph to the effect that written statement/objections filed alongwith Court fee, stamp of Rs. 200/- also ought to have been taken out from the file of O.S. No. 17 of 1965 and kept in the record of O.S. No. 102 of 1971 and treated as objection is well founded. 11. As far as merit of the case is concerned, the agreement to refer the matter to arbitrator dated 23.4.1949 has been filed along with supplementary affidavit. The agreement was executed by Shitla Prasad, Hira Lal father and guardian of Shiv Shanker, Jagannath Prasad father and guardian of petitioner Kailash Nath. In the said agreement, Shitla Prasad was described as party No. 1 and Hira Lal and Jagannath Prasad fathers of Kailash Nath and Shiv Shanker as party No. 2. The agreement was executed by Shitla Prasad, Hira Lal father and guardian of Shiv Shanker, Jagannath Prasad father and guardian of petitioner Kailash Nath. In the said agreement, Shitla Prasad was described as party No. 1 and Hira Lal and Jagannath Prasad fathers of Kailash Nath and Shiv Shanker as party No. 2. It is also mentioned in the said agreement that Mathura had executed a “will deed” in favour of Shiv Shanker and Kailash Nath. Thereafter, it was mentioned that dispute had arisen in between party No. 1 and party No. 2, i.e. Shitla Prasad on the one hand and Hira Lal and Jagannath Prasad on the other hand. 12. In the award, share was given to Shitla Prasad as well as Smt. Chameli Devi mother of Shiv Shanker. In the agreement, there was no mention of share of Chameli Devi. In the arbitration award, copy of which is Annexure-2 to supplementary affidavit, it is mentioned that share of Kailash Nath is 6 Ana, share of Shiv Shanker 6 Ana and share of Shitla Prasad 4 Ana. One of the houses was given to Smt. Chameli Devi. Gold and silver had been divided among the parties to the agreement and Smt. Chameli Devi. Agricultural property was also mentioned in the arbitration award. 13. In my opinion, the award is illegal at least in part for the reason that share could not be given to Smt. Chameli Devi, as she was not party to the agreement referring the matter to arbitrator; she also did not claim any legal title to the properties. 14. The award was given in 1949. For 16 years i.e. until 1965 it was not acted upon. No claim on the basis of the said award was made by any of the parties. In view of this the argument of the petitioner that even if the award was given, it was not intended to be acted upon and it was a mock award is quite sustainable. Such pleas are available as valid objection to the award as held by the Supreme Court in Bhawarlal Bhandari v. M/s. Universal Heavy Mechanical Lifting Enterprises, A.I.R. 1999 S.C. 246. 15. The more important question to be decided is regarding limitation to file award. Such pleas are available as valid objection to the award as held by the Supreme Court in Bhawarlal Bhandari v. M/s. Universal Heavy Mechanical Lifting Enterprises, A.I.R. 1999 S.C. 246. 15. The more important question to be decided is regarding limitation to file award. Under Article 119 of the Schedule to the Limitation Act, the limitation for application by any of the parties for filing of the award in the Court is 30 days from the date of service of the notice of making of the award. It has been held that the said limitation applies only to the parties and not to the Arbitrator. However, the Supreme Court in Patel Motibhai Naranbhai and another v. Dinubhai Motibhai Patel and others, A.I.R. 1996 S.C. 997 has held that even though 30 days limitation provided under Article 119 does not apply to the arbitrator, still the award may be filed by the Arbitrator only within three years as the matter would be covered by Article 137 which prescribes period of three years for any other application for which no period of limitation is provided elsewhere in the said schedule. In the aforesaid authority the Supreme Court held that Arbitrator was acting as Agent of one of the parties. Similar is the position in the instant case. Here also Arbitrator was appearing as witness of the defendants. First half of para-7, paras 9 and 10 of the aforesaid authority are quoted below : “7. The only question that falls for determination in this case is whether the Arbitrator could after a long lapse of nearly six years from the date of the Award file his Award and ask for a decree in terms of the Award, especially when neither of the two parties made any application for filing of the Award in Court even after receiving intimation of making of the Award. The question of making an application under Section 17 of the Arbitration Act for judgment according to the Award cannot arise until and unless the Award is filed in Court. There is no specific provisions in the Arbitration Act casting a duty upon the Arbitrator to file his Award in Court suo motu. Article 119 of the Limitation Act lays down a time limit for making an application for filing the Award in Court or for setting aside the Award or getting the Award remitted for reconsideration. There is no specific provisions in the Arbitration Act casting a duty upon the Arbitrator to file his Award in Court suo motu. Article 119 of the Limitation Act lays down a time limit for making an application for filing the Award in Court or for setting aside the Award or getting the Award remitted for reconsideration. In the instant case, the Arbitrator has not merely filed the Award in Court, he has also made an application (Miscellaneous Civil Application No. 19/1992) in the Court of Civil Judge (S. D.) Anand, under Section 14 of the Arbitration Act and has engaged a lawyer Shri G.B. Shah to obtain orders as prayed. 9. Under sub-section (2) of Section 14 a duty is cast upon the arbitrator to file the award or cause the award to be filed in the Court at the request of the party to the arbitration agreement or if so directed by the Court. There is no provision which requires the arbitrator to apply to the Court for filing of the award and pass a decree in terms of the award. An application for filing the award in Court has to be made within thirty days from the date of service of the notice of making of the award under Article 119 of the Limitation Act. Even if it is held that Article 119 will apply only to an application made by a party and not by the arbitrator, Article 137 will come in the way of the arbitrator’s making any application beyond the period of three years from the date of making of the award. 10. Faced with the situation that an application for filing the Award in Court under Section 14 (2) of the Arbitration Act has become barred by limitation, Jayantikumar Ishwarbhai Patel induced the Arbitrator to make an application for filing of the Award and also for making the Award the rule of the Court. In other words, Jayantikumar Ishwarbhai Patel, a party to the dispute, with the help of the Arbitrator, did indirectly what he could not have done directly. We are of the view that law cannot be allowed to be circumvented in this fashion. The Court should have declined to entertain the application moved by the Arbitrator nearly six years after making of the Award. We are of the view that law cannot be allowed to be circumvented in this fashion. The Court should have declined to entertain the application moved by the Arbitrator nearly six years after making of the Award. Without the application of the Arbitrator, the application made by Jayantikumar Ishwarbhai Patel under Section 14(2) could not survive. The Court should not come to the aid of a party where there has been unwarrantable delay in seeking the statutory remedy. Any remedy must be sought with reasonable promptitude having regard to the circumstances.” 16. The said authority has been noticed in Bhawarlal Bhandari v. M/s. Universal Heavy Mechanical Lifting Enterprises, A.I.R. 1999 SC 246 (supra). However, in the latter authority objection regarding limitation was not permitted to be raised for the reason that when award was filed (after about 4 years) the aggrieved party did not file any objection and award was made Rule of the Court. Afterwards when decree passed on the basis of the award was put in execution, the aggrieved party raised the objection pertaining to bar of limitation in filing original award and award being mock and not intended to be acted upon. The Supreme Court held that in execution said objections could not be raised and such questions could be considered if they had been raised in the proceedings which initiated on the filing of award for making the award Rule of the Court. 17. Accordingly, the award could not be made Rule of the Court as it was filed much after the period of limitation of three years that is after about 16 years. It is also held that the said award was not intended to be acted upon and it was a mock award. 18. Writ petition is therefore allowed. Both the impugned orders are set aside. ——— [2007(5) ADJ 721] ALLAHABAD HIGH COURT BEFORE : TARUN AGARWALA, J. UCO BANK AND ANOTHER ......Petitioners Versus CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, KANPUR NAGAR AND OTHERS ......Opposite Parties (Civil Misc. 18. Writ petition is therefore allowed. Both the impugned orders are set aside. ——— [2007(5) ADJ 721] ALLAHABAD HIGH COURT BEFORE : TARUN AGARWALA, J. UCO BANK AND ANOTHER ......Petitioners Versus CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, KANPUR NAGAR AND OTHERS ......Opposite Parties (Civil Misc. Writ Petition No. 3404 of 2007, decided on 2nd April, 2007) Reinstatement—Driver of bank—Legality of—Respondent-workman worked for more than 240 days—His service was dispense with on retirement of Senior Manager on the ground that he was personal driver of said Senior Manager and no appointment letter issued by the Bank—Evidence brought on record indicate that the salary paid by the Senior Manager was reimbursed to him by bank and he was driving the Bank’s Vehicle and was transferring the currency from one branch to another alongwith security guard—Relationship of master and servant established—Hence, such employee to be reinstated and would be entitled to 25% of back wages. [Paras 9 and 10] Result; Petition Partly Allowed. Cases cited : 1978(2) SCC 358 ; 2005(10) SCC 792 ; 2005(2) SCC 363 ; 2006(1) SCC 479 (Para 9)-Relied on.; 2005(5) SCC 591 (Para 16)-Referred. Counsel : Manoj Mishra for the Petitioners; V.K. Shukla, Ashok Khare, S.D. Shukla, A.G.A. for the Opposite Parties. JUDGMENT Hon’ble Tarun Agarwala, J.—By means of this petition, the petitioners have challenged the validity and legality of the award passed by the Central Government Industrial Tribunal reinstating the respondent No. 2 with full back wages and with all consequential benefits attached with the post. The facts leading to the filing of the present writ petition is, that a dispute was referred to the tribunal for adjudication. The terms of the reference order was : “Whether any employer employee relationship existed between the UCO Bank and Sri Rajesh Kumar Diwakar ? If yes, whether the action of the management in terminating the services of the said workman w.e.f. 1.6.2001 is legal and justified ? If not, to what relief is the workman entitled for ? 2. The workman in his written statement submitted that he was appointed by the bank on 7.12.1999 in its Armapore branch, Kanpur on the post of Driver on a consolidated wages @ 1800/- per month. The bank also provided a dress to the workman and was also given travelling allowance, dearness allowance, etc. 2. The workman in his written statement submitted that he was appointed by the bank on 7.12.1999 in its Armapore branch, Kanpur on the post of Driver on a consolidated wages @ 1800/- per month. The bank also provided a dress to the workman and was also given travelling allowance, dearness allowance, etc. It was alleged that the workman was appointed on a temporary basis against a regular and permanent post of driver and worked without any break in service upto 31.5.2001, and thereafter, his services were dispensed with by an oral order w.e.f. 1.6.2001 without giving any show cause notice or charge-sheet and without any reasonable cause. The workman contended that his work and conduct was satisfactory and that there was no complaint against him. The workman further contended that he had worked for more than 240 days in a calendar year, and therefore, his services could not be dispensed with without complying with the provision of Section 25-F of the Industrial Disputes Act, 1947. Since the provision of Section 25-F of the Act was not complied with by the employers, the termination of the services of the workman was wholly illegal and that he was liable to be reinstated with continuity of service and with full back wages. 3. The petitioners denied the claim of the workman and contested the matter alleging that the workman was never appointed by the bank and that there was no master and servant relationship between the parties, and therefore, the question of terminating the service of the workman did not arise. The petitioners further submitted that the workman was appointed as a personal driver of the then Senior Manager, Sri U.S. Wahi, who was working in the bank’s branch at Kanpur and that the salary to the workman was also paid by the Senior Manager. It was contended that the Senior Manager had never appointed the workman to work as the Cash Van driver on a temporary basis. The senior Manager in any case was not competent to appoint the workman either on a temporary basis or on a regular basis in the services of the Bank. It was contended that the Senior Manager, Sri U.S. Wahi retired from the service of the bank on 31.5.2001 and consequently he disengaged the services of the workman w.e.f. 1.6.2001. The senior Manager in any case was not competent to appoint the workman either on a temporary basis or on a regular basis in the services of the Bank. It was contended that the Senior Manager, Sri U.S. Wahi retired from the service of the bank on 31.5.2001 and consequently he disengaged the services of the workman w.e.f. 1.6.2001. The petitioners contended that since the workman was never an employee of the bank, the question of complying with the provision of Section 25-F of the Act did not arise. 4. The tribunal after considering the evidence on record, found that the Armapore branch of the petitioners’ bank at Kanpur and the Belaganj branch at Agra were the currency chest branches of the bank and that the post of a permanent cash van driver existed at both the branches on account of the retirement of the permanent cash van drivers. The tribunal, after considering the evidence on record, came to the conclusion that even though no appointment letter was issued to the workman by the bank, nonetheless, the workman was driving the Bank’s van for carrying cash to different branches of bank in the city as well as to outstation branches of the bank. The tribunal further found that whenever the van was used by the petitioner’s bank, it was driven by the workman and was accompanied by two arms guard. The tribunal further found that the workman used to fill up the logbook of the van in his own handwriting and that the bank used to provide him with a uniform, etc. The tribunal further found that even though the workman was paid Rs. 1800/- per month salary by the Senior Manager, the amount paid to the workman was reimbursed by the bank to the Senior Branch Manager. The tribunal further found that the car provided by the petitioner was only used by the bank for official purposes and it was not being used for personal purpose by the Senior Branch Manager. The tribunal further found that the workman had worked for more than 240 days continuously in a calendar year. The tribunal also found that the senior Manager was authorised to appoint a cash van driver. 5. The tribunal further found that the workman had worked for more than 240 days continuously in a calendar year. The tribunal also found that the senior Manager was authorised to appoint a cash van driver. 5. In view of the aforesaid findings, the tribunal came to the conclusion with there existed a master and servant relationship between the workman and the bank and that the workman was in fact an employee of the bank. The tribunal further found that the workman had worked continuously for more than 240 days in a calendar year and that his services were dispensed with without complying with the provision of Section 25-F of the Industrial Disputes Act. Consequently, the tribunal found that the termination of the workman amounted to retrenchment, as defined under Section 2 (oo) of the Industrial Disputes Act, and therefore, was entitled to reinstatement in the services of the bank on the post of driver with all consequential benefits attached with that post. The petitioners, being aggrieved by the aforesaid award, have filed the present writ petition. 6. Heard Sri Manoj Mishra, the learned Counsel for the petitioners’ bank and Shri Ashok Khare, the learned Senior Counsel assisted by Sri S.D. Shukla, the learned Counsel for the respondent No. 2. 7. The learned Counsel for the petitioners has assailed the award contending that the finding of the tribunal that there was a master and servant relationship between the bank and the workman, was based on surmises and conjectures. The petitioners contended that the workman was employed as the personal driver of the Senior Manager of the bank and that under the terms and conditions of his employment, the Senior Manager was entitled for the reimbursement of the salary paid by him to the workman. Consequently, the mere fact that the amount paid towards salary by the Senior Manager was reimbursed by the petitioners did not mean that there was a master and servant relationship between the petitioners’ bank with that of the workman. 8. The learned Counsel further urged that there was no evidence to indicate that the bank had appointed the workman. The learned Counsel further submitted that the tribunal, while reinstating the workman, had mechanically, and without any application of mind, granted full back wages with all consequential benefits attached to that post. 8. The learned Counsel further urged that there was no evidence to indicate that the bank had appointed the workman. The learned Counsel further submitted that the tribunal, while reinstating the workman, had mechanically, and without any application of mind, granted full back wages with all consequential benefits attached to that post. The learned Counsel submitted that the award of full back wages was wholly illegal and excessive, inasmuch as, no averment was ever made out by the workman that he was not gainfully employed during the interim period. 9. In support of his submissions, the learned Counsel for the petitioners’ bank placed reliance on a decision of the Supreme Court in Punjab National Bank v. Ghulam Dastagir, 1978 (2) SCC 358 and, on the question of back wages, placed reliance upon the decision of the Supreme Court in Bank of Baroda v. Ghemarbhai Harjibhai Rabari, 2005 (10) SCC 792 and in Kendriya Vidyalaya Sangathan v. S.C. Sharma, 2005 (2) SCC 363 and in the case of U.P. State Brassware Corporation Ltd. and another v. Uday Narain Pandey, 2006 (1) SCC 479 . 10. Having given my thoughtful consideration, this Court is of the opinion that in view of the overwhelming evidence that has come on record, it is clear that a master and servant relationship existed between the bank and the workman. Even though, no formal order has come on record, showing the appointment of the workman by the bank, it is clear, that the authority to appoint any person as the driver was the Senior Manager, who, in fact, had appointed the workman as the driver. The employers, however, contended that the Senior Manager had appointed the workman as his personal driver. Therefore, the question that arises for consideration is, whether the workman was appointed as the personal driver of the Senior Manager or was he appointed for the purposes of doing the work of the bank. The evidence which has come before the tribunal is that there was one Van which was used by the bank for its official purposes for sending the currency to various branches in the city as well as to the branches located outside the city. The van, driven by the workman was accompanied by two arms guards of the bank. The evidence which has come before the tribunal is that there was one Van which was used by the bank for its official purposes for sending the currency to various branches in the city as well as to the branches located outside the city. The van, driven by the workman was accompanied by two arms guards of the bank. A specific finding has been given that the bank had not provided any car to the Senior Manager for his personal use nor any evidence has been given by the Senior Manager himself that he had a personal car and that he had appointed the workman for his personal use. In fact the Senior Manager in his deposition has clearly indicated that a vehicle was given by the bank for the use of the work of the bank and for that purposes, the workman was engaged as a driver. The witness had also admitted that he used to drive the vehicle and he was given a dress etc., by the bank. The evidence brought on the record also indicated that the salary paid by the senior Manager was reimbursed to him by the bank. In my opinion, this leads to an irresistible conclusion that the workman was appointed as a driver in the bank and was not appointed as the personal driver of the then Senior Manager. The finding given by the tribunal is based on the findings of fact which is not perverse and which cannot be interfered in a writ jurisdiction. 11. The reliance of the learned Counsel for the petitioners in the case of Punjab National Bank (supra) is misplaced. In that case a specific finding had been arrived at that the driver was engaged by the Area Manager of the bank and that the Area Manager was paid allowance for the use of a driver for his personal purpose. The Supreme Court further found that there was no nexus between the bank and the driver. In the present case, all the evidence are to the contrary. It has been clearly established that the workman was driving the Bank’s vehicle and was transferring the currency from one branch to another branch along with the security guards. No evidence has come forward to show that he was the personal driver of the Senior Manager. In the present case, all the evidence are to the contrary. It has been clearly established that the workman was driving the Bank’s vehicle and was transferring the currency from one branch to another branch along with the security guards. No evidence has come forward to show that he was the personal driver of the Senior Manager. Further, no evidence has been shown by the bank to indicate that the driver’s allowance was part of the terms and conditions of service or perks given to the Senior Manager. From the evidence that has come on record, it is clear that the bank had adopted an unfair labour practice and adopted this method of employment in order to avoid appointing a permanent driver which post was existing. 12. In view of the aforesaid, this Court is of the opinion that the submission of the learned Counsel for the petitioners to the effect that there was no master and servant relationship between the bank and the workman is misconceived and bereft of merit and no interference is required in the finding given by the tribunal. 13. The learned Counsel for the bank further submitted that the tribunal had mechanically directed the bank to reinstate the workman with continuity of service and with full back wages and with all consequential benefits attached to the post. The learned Counsel for the bank further submitted that the said direction was wholly illegal, arbitrary and had been passed without any application of mind. In support of his submission, the learned Counsel has placed reliance upon various decisions of the Supreme Court. On the other hand, the learned Counsel for the workman submitted that since the termination of the service of the workman was wholly illegal and that the employer had adopted an unfair labour practice, the tribunal while exercise its discretion validly granted full back wages with continuity of service which does not require any interference in a writ jurisdiction. 14. Payment of back wages is automatic consequent upon a declaration that the order of termination is unsustainable for whatever reason. This was the normal rule which was being followed since the enactment of the Industrial Disputes Act. 15. 14. Payment of back wages is automatic consequent upon a declaration that the order of termination is unsustainable for whatever reason. This was the normal rule which was being followed since the enactment of the Industrial Disputes Act. 15. The Supreme Court in U.P. State Brassware Corporation Ltd. (supra) held : “The Industrial Disputes Act was principally established for the purpose of pre-empting industrial tensions, providing the mechanics of dispute resolutions and setting up the necessary infrastructure so that the productive battles and assurance of industrial justice may create a climate of goodwill. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior Courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.” 16. The Supreme Court in various decisions held that no precise formula could be laid down as to under what circumstances, the entire back wages was to be allowed and that it would depend on the facts and circumstances of each case. The Supreme Court, however, has categorically stated that back wages is not automatic and should not be granted mechanically because the order of termination was being set aside or that the order of termination was found to be in contravention of the provisions of Section 25-F of the Industrial Disputes Act. The Supreme Court in the case of G.M., Haryana Roadways v. Rudhan Singh, 2005 (5) SCC 591 held : “A host of factors like the manner and method of selection and appointment i.e. Whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short-term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balance in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.” 17. In the light of the aforesaid observations and in view of the fact that the workman did not plead that after the termination of his services he was unemployed or that he remained wholly unemployed or that he was not gainfully employed during the interim period, this Court is of the considered opinion that since the workman had only rendered a small length of service with the bank and on the other principle of ‘no work no pay’, this Court is of the opinion that the grant of full back wages with consequential benefits attached to the post is excessive and is liable to be modified. Since not much evidence has been given in this regard, consequently, the Court in exercise of its power under Article 226 of the Constitution of India modifies the award with regard to the back wages in the manner stated hereinafter. 18. In view of the aforesaid, the writ petition is partly allowed. The award is modified to the extent that the respondent No. 2 shall be reinstated as a driver in the bank and would be entitled to 25% of the back wages from the date of his termination till the date of his reinstatement which shall be computed @ Rs. 1800/- per month. It is also made clear that the bank would pay the wages attached to the post of driver from the date of his reinstatement. 1800/- per month. It is also made clear that the bank would pay the wages attached to the post of driver from the date of his reinstatement. The reinstatement shall be arried out within one month from today. ————