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2009 DIGILAW 2234 (PNJ)

State Of Bank Of India v. Shri Vinod Kumar Chawla

2009-12-23

ADARSH KUMAR GOEL, ALOK SINGH

body2009
Judgment Adarsh Kumar Goel, J. 1. This appeal has been preferred against order of learned Single Judge, setting aside the award of the Labour Court and directing reinstatement of the respondent-workman with continuity of service but without backwages. 2. The workman joined the service of the appellant Bank as Temporary Clerk-cum-Cashier on 14.5.1973. After a period of nine months, his services were terminated on 19.2.1974. After more than three years, he raised an industrial dispute which was referred for adjudication to the Labour Court in the year 1979. The Labour Court vide award dated 18.1.1984, held that for non-compliance of provisions of Section 25-F of the Act, the workman was entitled to reinstatement with backwages, but the management will be at liberty to pass a fresh order of termination after complying with the said provision. The said award was affirmed by the Delhi High Court vide order dated 18.2.1986. Accordingly. the workman was reinstated by the appellant Bank on 5.5.1986 and paid the backwages for about 12 years. Thereafter fresh order dated 19.7.1986 was passed, terminating his services, after complying with the provisions of Section 25-F of the Act, in term of liberty expressly given under the award dated 18.1.1984. 3. The workman raised an industrial dispute again which was referred for adjudication. The Labour Court upheld the order of termination and held that the workman was not entitled to any further relief. The Labour Court noticed that the Bank had given an offer to the workman to appear in the test for permanent appointment during pendency of earlier reference before labour Court vide letter dated 3.9.1982, Ex. W-22, but the workman did not appear in the said test. The termination was in pursuance of liberty expressly granted vide award dated 18.1.1984. 4. The workman challenged the said award by way of filing writ petition in this Court which has been allowed by learned Single Judge by the impugned order. Reason given in the impugned order is that opportunity to appear in the test was not a meaningful opportunity as the workman was out of station and he was wrongfully asked to forego his backwages in the event of his Dung taken back in service by way of a settlement. Non appearance in the test could not be a ground for terminating his services, as that event was prior to his reinstatement. Non appearance in the test could not be a ground for terminating his services, as that event was prior to his reinstatement. Aggrieved by order of learned Single Judge, this appeal has been filed. 5. We have heard learned counsel for the parties and perused the record. 6. Learned counsel for the appellant Bank submitted that the respondent was only a temporary employee and had worked for about nine months. Reinstatement vide award dated 18.1.1984 on the ground of violation of Section 25-F of the Act was with express liberty to pass fresh order of termination after compliance of the said provision. Accordingly, the appellant passed a fresh order of termination, which did not suffer from any infirmity. No doubt in the order of termination, the factum of respondent having failed to pass the test was mentioned, which was the reason considered by the Bank for not retaining the respondent in service. The test was required to be passed for absorption in the Bank. In absence of absorption in service of the Bank, the workman remained a temporary employee whose services could be terminated for unsuitability and such an order did not suffer from any illegality. Section 25-F of the Act was duly complied with. In these circumstances, the order of learned Single Judge is not sustainable. 7. Learned counsel for the workman supported the impugned order of learned Single Judge, by submitting that since the award granted continuity of service, there was automatic regularization. Even though the workman had worked only for nine months prior to earlier order of termination and for about two months after reinstatement, the total service should have been taken to be 13 years and order of termination should have been taken to be a stigma, requiring an inquiry. The order of termination was malafide as there was no reason to pass the said order on the ground of test having not been passed prior to reinstatement and earlier award. 8. Question for consideration is whether termination vide granted vide award order dated 19.7.1986, in the light of liberty granted vide dated 18.1.1984, could be held to be illegal or malafide. 9. In our view, the answer has to be in the negative. Admittedly, the workman was appointed on temporary basis. He never passed the test required for absorption in the bank service. 9. In our view, the answer has to be in the negative. Admittedly, the workman was appointed on temporary basis. He never passed the test required for absorption in the bank service. The award Earlier passed was only for non- compliance of Section 25-F of the Act with express liberty to pass fresh order after complying with the said provision. The workman was given reinstatement and backwages in compliance of the award. Fresh order was passed after due compliance of Section 25-F. In such circumstances, the order dated 19.7.1986 could not be held to be illegal. The Labour Court was, thus, justified in holding that the workman was not entitled to reinstatement or backwages. Order passed in terms of liberty granted in earlier award would not be held to be illegal or malafide. Mention of a fact that the workman had not passed test necessary for absorption, when opportunity was given to him, did not make the order to be arbitrary. The said fact was relevant for not absorbing the respondent in permanent service as a result of which termination became necessary. There was no order of any Court for giving fresh opportunity to appear in a test. The Bank was, thus, within its rights in taking a decision not to continue the respondent in service as a temporary employee. The impugned order of learned Single Judge cannot, thus be sustained. 10. Accordingly, we allow this appeal, set-aside the impugned order of learned Single Judge and dismiss the writ petition. There will be no order as to costs.