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2016 DIGILAW 689 (GUJ)

Vipinbhai C. Valand v. Chief General Manager

2016-03-30

K.M.THAKER

body2016
JUDGMENT K.M. Thaker, J. 1. Heard Mr. Sharma, learned advocate for the petitioner and Mr. Macwan, learned advocate for the respondents. 2. The award which is brought under challenge is passed by the learned Industrial Tribunal in October-2005, whereby the learned Tribunal rejected the reference taken out by present respondent. 3. In present petition, the petitioner has prayed, inter alia, that:-- "8(II) To quash and set aside Annexure F (i.e. Order passed by Labour Court in Ref ITC No. 23/1999) and direct the respondent to reinstate the petitioner with full back wages with all consequential benefits." 4. So as to support and justify the relief prayed for in the petition, the petitioner has averred and stated that:-- "2.1 The petitioner submits that the petitioner has approached the Hon'ble Labour Court vide Ref ITC No. 23/1999, copy of Demand Claim filed by the Petitioner in Labour Court vide ITC No. 23/1999 is annexed herewith as Annexure-A, the Schedule is, Whether the action of the management of State Bank of India and through its officers in terminating/discontinuing the service of terminating/discontinuing the service of the Workman Shri Vipinbhai C. Valand, Farass-cum-Messenger at Baroda Main Branch w.e.f. 27.01.1997 is justified, valid and legal? If not, to what relief the concerned workman is entitled to and what other directions are necessary in the matter? 2.2 The petitioner submits that the petitioner was appointed against the clear vacancies issued vide Notification dated 01.08.1988 annexed herewith as Annexure-B and he was selected against the notification issued by the respondents, in which the petitioner has applied and attending the Interview and was selected. 2.3 The petitioner submits that the Memorandum was issue by the S.B.I. (i.e. the respondents) on dated 01.05.1995 giving the appointment letter on monthly basis and on 1995 onward the petitioner continuously working up to 1997. 2.4 The petitioner submits that he has worked as temporary messenger at Main Branch for 240 days in the year 1995, 380 days in 1996 and 1997 and without issuing any notice the respondents have reduced the salary of the petitioner from Rs. 2575/- to 1000/-, inspite of regularization the petitioner after completion of 240 days. They have given 18 days salary and terminating the service of the petitioner, which is also illegal. 2575/- to 1000/-, inspite of regularization the petitioner after completion of 240 days. They have given 18 days salary and terminating the service of the petitioner, which is also illegal. When the petitioner has completed more then 240 days in Calendar year, the petitioner is required to be considered as regular employee of the Bank (i.e. the respondents). 2.5 The petitioner submits that on 15.06.1995 list of sub-ordinate cadre of 8 employees issued, which included name of Shri Vipin C. Valand i.e. workman and the workman appearing at Sr. No. 5 as per letter to BMB/Per/219 dtd. 15.06.1995. 2.6 The petitioner submits that the respondents have submitted the Written Statement, in which the respondents have illegally deny that the workman (i.e. petitioner) has not completed 240 days in any of the years. Whereas, the documents produced by the petitioner are Exh. 17 to 31, which proves the petitioner has completed 240 days in year 1995 and 380 days in 1996 and 1997 and the respondents have failed to produce any record from their Bank, whereas the learned Labour Court has accepted that the records are produced, which is not correct. 2.7 The petitioner submits that it is admitted by the respondents that in year 1989 the Notification was issued and after appearing in the selection, the petitioner has come on duty from 01.05.1995. In the cross-examination the respondents have admitting the facts that the petitioner has completed 240 days as per the List of document i.e. Exh. 22 and in fact the petitioner has produced the application letter given by the respondents to the petitioner i.e. 01.06.1995, 01.07.1995, 01.08.1995, 01.11.1995, 01.12.1995, 01.01.1996, 07.03.1996, 02.04.1996, 02.05.1996 as per Exhibit-23 to 28." 5. The factual aspects which emerge from the record and from the submissions by learned advocates for the petitioner and respondent bank are that the petitioner raised an industrial dispute alleging, inter alia, that he was in employment with the State Bank of India and his service was illegally, arbitrary and abruptly terminated with effect from 27.01.1997. The dispute raised by the petitioner was referred for adjudication to the learned Tribunal (Central) at Vadodara and the said reference culminated into Reference (ITC) No. 23/99. 5.1 During the proceedings before the learned Tribunal (Central), the petitioner herein filed his statement of claim, wherein he alleged and claimed, inter alia, that:-- "1. The dispute raised by the petitioner was referred for adjudication to the learned Tribunal (Central) at Vadodara and the said reference culminated into Reference (ITC) No. 23/99. 5.1 During the proceedings before the learned Tribunal (Central), the petitioner herein filed his statement of claim, wherein he alleged and claimed, inter alia, that:-- "1. That the Workman was working under the direct control and management of Chief General Manager, State Bank of India Ahmedabad and other two mentioned above. 2. That the workman was appointed against the clear vacancy since 01.08.1988 as he was selected against a notification issued by State Bank of India in which the workman as applied and the respondents have issued an interview call to the workman vide letter dated 28.09.1989 shown at Annexure-A and on 02.04.1995 the workman was called with the certificate and documents for the interview and from 01.05.1995 they issued an appointment letter which is shown at Annexure-B for clear picture of the service, the tenure of the workman is shown in Tabular form in Para 5 of the application. 3. During the course of his tenure no charge sheet or memo has been served to workman, his work always been found satisfactory and he had no direct or conflict or controversy with the management. He being hones and diligent his performance all through out no adverse remarks against his qualification and competency exist in records. 4. The workman was continued up to 01.01.1997 and without assigning any reason for further extension the workman was continued on daily wages w.e.f. 27.01.1997 at the Consolidated salary of Rs. 1000/- which is not clear on the workman was appointed on daily wages when he was already working as temporary employee. As per the Supreme Courts judgment, the scheme laid down to the casual labour should not be appointed and if the nature of work is such regular the person is required regularly the appointment should be made. 5. The workman submits that the Chief Manager of SBI has issued as certificate dated 15.02.1997 shown at Annexure-A stating that the workman has worked as temporarily in main branch fro 240 days in the year 1995, 380 days in 1996 and in January 1997, the last gross salary in the month of December 1996 is Rs. 2574.20. 5. The workman submits that the Chief Manager of SBI has issued as certificate dated 15.02.1997 shown at Annexure-A stating that the workman has worked as temporarily in main branch fro 240 days in the year 1995, 380 days in 1996 and in January 1997, the last gross salary in the month of December 1996 is Rs. 2574.20. The workman submits that it is a case of perpetual adhocism and also violates the Section 25 of the Industrial Disputes Act which state that no workmen employee in Industry Act but has been in continuous service for not less than one year under employer shall be retrenched by that employer until the workman has been given one months notice in writing. The reason for retrenchment and the period of notice is expired. The workman has worked continuously for more than 2 years and has been terminated from the post of temporary Farras-cum-messenger without following the conditions laid down under Section 25 Act which are mandatory conditions. The details of working days of the workman 22.8.1989 Interview call letter issued 02.04.1995 Call the workman with the Certificate and Documents 01.05.1995 Issue the appointment letter for temporary post for a period of one month. 01.06.1995 Extension for one month 01.07.1995 Extension for one month 01.08.1995 Extension for one month 01.09.1995 Extension for one month 01.10.1995 Extension for one month 01.11.1995 Extension for one month 01.12.1995 Extension for one month 01.01.1996 Extension for one month 01.02.1996 Extension for one month 01.03.1996 Extension for one month 02.04.1996 Extension for one month 02.05.1996 Extension for one month 02.06.1996 Extension for one month 02.07.1996 Extension for one month 02.08.1996 Extension for one month 02.09.1996 Extension for one month 30.10.1996 Extension for 18 days 15.02.1997 Certificate issued by Chief manager for number of days work done by the workman in the year 1995, 1996, 1997 5.2 The respondent bank filed its written statement and submitted that the petitioner was engaged on temporary basis for causal work and he was engaged intermittently and he was not appointed on any vacancy of sanctioned post. It was also claimed that the claimant was not appointed after following selection and recruitment procedure on any vacancy on a sanctioned post. The bank claimed that since the workman was engaged on temporary basis, his claim for reinstatement is not justified. It was also claimed that the claimant was not appointed after following selection and recruitment procedure on any vacancy on a sanctioned post. The bank claimed that since the workman was engaged on temporary basis, his claim for reinstatement is not justified. 5.3 In the written-statement, the respondent bank merely denied the allegations by the claimant-workman, but it did not mention actual and complete facts according to its record. 5.4 The evidence of the workman was recorded. The respondent bank also examined one witness whose deposition was recorded at Exh. 40. The deposition of the claimant workman was recorded at Exh. 15. After the stage of evidence was completed, the petitioner i.e. claimant workman submitted written arguments. The relevant part of the written arguments submitted on behalf of claimant workman reads thus:-- "2. The workman submits that on 02.04.1995 the workman was called with the Certificates and documents and verified the same and issued the Appointment letter on 01.05.1995 (w.e.f. 26.04.1995) as per Exhibit-22 and it was continue issued the appointment letter in continuation from 01.06.1995, 01.07.1995, 01.08.1995, 01.09.1995, 01.10.1995, 01.11.1995, 01.01.1996, 07.03.1996, 02.04.1996, 02.05.1996 as per Exhibit-23 to 28 and continue up to 18.01.1997. The Workman completed 240 days in continuation in a year and termination has been done without following the procedure and neither one month pay was not given nor notice was given, which is illegal and the termination is required to be quashed. 3. The workman submits that on 15.06.1995 list of sub-ordinate cadre of 8 employees issued, which included name of Shri Vipin C. Valand i.e. workman and the workman appearing at Sr. No. 5 as per Exhibit-43. 4. The workman submits that the Chief Manager, State Bank of India, Kurali Branch, Ta:Karjan, Dist:Baroda issued as Certificate in year 1989 as per Exhibit-18 and when the notification was issued, the workman was called for interview. The contents of Exhibit-19 is under:-- This is to certify that Shri V.C. Valand, Village-Kurali who has served in this branch as Temporary Part time Swapper during the period of 1985 to 86. In the Year 1985 286 days In the Year 1986 290 days. 5. The contents of Exhibit-19 is under:-- This is to certify that Shri V.C. Valand, Village-Kurali who has served in this branch as Temporary Part time Swapper during the period of 1985 to 86. In the Year 1985 286 days In the Year 1986 290 days. 5. The workman submits that the Chief Manager (A & A), State Bank of India, Main Branch, Baroda issued a certificate on 15.02.1997 as per Exhibit-19 stating that, The workman has worked as temporary Messenger at this branch fro 248 days in the year 1995 and 383 days in 1996 and January 1997. The last gross salary for the month of December 1996 is Rs. 2574.20, 6. The workman submits that after termination of service, the workman has appointed on daily wages w.e.f. 01.03.1997 as per Exh. 15." 5.5 The learned Tribunal considered the details and material available on record and on the basis of statement/admission made by the concerned workman during his deposition, the learned Tribunal came to the conclusion that the concerned workman failed to establish that his service was terminated on the date which he mentioned in the statement of claim or which was mentioned in the order of reference. On reaching such conclusion, the learned Tribunal dismissed the reference. 5.6 Feeling aggrieved by the learned Tribunal, the petitioner has taken out present petition. 6. During the hearing of present petition, Mr. Sharma, learned advocate for the petitioner submitted that the concerned claimant workman had submitted his application in response to the advertisement issued by the bank, and that thereafter, he was appointed by the respondent bank. However, the bank continued to issue different orders engaging the workman on temporary basis and several such letters were issue by the bank during the period for which the claimant was continued in service with the bank. 7. Mr. Sharma, learned advocate for the petitioner workman submitted that in his deposition the workman stated that he was employed in 1998 and that it was in light of the said statement that the learned Tribunal reached to the conclusion that the date of termination mentioned in the order of reference is not proved, and therefore, reference deserves to be rejected. He submitted that in this view of the matter the scope of his submissions is restricted. 8. Mr. He submitted that in this view of the matter the scope of his submissions is restricted. 8. Mr. Macwan, learned advocate for the respondent submitted that the petitioner-claimant was engaged on temporary basis for casual work and that appointment letter under which he was appointed was only for 18 days and that therefore, the claim of the claimant workman is rightly rejected by the learned Tribunal. 9. I have considered the submissions by learned advocates for the petitioner and respondents and have also considered the award which is impugned in present petition as well as other material and documents on record. 10. It is true that according to the order of reference, the petitioner workman was orally terminated with effect from 27.01.1997. 11. However, when the appointment letter is taken into account and the discussion with regard to the workmans deposition in the award is taken into account, some inconsistency and anomalies strike out. 12. It is not in dispute that the petitioner workman was working as Farass-cum-Messenger. The petitioner workman claimed that he had submitted an application in response to the advertisement issued by the bank. The assertion of the workman is not disputed by the respondent bank. 13. The petitioner workman also claimed that after consideration of his application and after interview, he was appointed by the respondent bank. The said assertion by the petitioner workman is also not disputed by the bank. 14. From the written arguments, which was submitted by the petitioner workman and the copies of the appointment letters which are placed on record of present petition by the workman, it appears that the respondent bank issued consecutive orders of appointment and by such consecutive appointment orders the bank continued the person in employment over a period of time. 15. In this context, it is relevant to mention that the petitioner workman heavily relied on certificate issued by the Manager of the bank Kurali Branch in Karjan Taluka, District:Baroda. The certificate issued by Kurali Branch, the respondent bank reads thus:-- "This is to certify that Shri V.C. Valand, Village-Kurali who has served in this branch as Temporary Part time Swapper during the period of 1985 to 86. In the Year 1985 286 days In the Year 1986 290 days." 16. The petitioner workman also relied on another certificate issued by the Manager of main branch, Baroda. In the Year 1985 286 days In the Year 1986 290 days." 16. The petitioner workman also relied on another certificate issued by the Manager of main branch, Baroda. The said details mentioned in the certificate dated 15.02.1997 issued by the Manager of the Main Branch, reads thus:-- "The workman has worked as temporary Messenger at this branch fro 248 days in the year 1995 and 383 days in 1996 and January 1997. The last gross salary for the month of December 1996 is Rs. 2574.20" 17. From the said certificate, it comes out that the workman had worked for more than 240 days during the period mentioned in the said certificates (i.e. from 1995 to January, 1997) 18. The bank claimed that the petitioner was engaged under appointment order dated 01.01.1997. However, what is important is that the said appointment letter dated 01.01.1997 is only one of several letters which were issued by the respondent bank under which the petitioner workman was consecutively engaged over a long period of time. 18.1 So far as the said appointment letter dated 01.01.1997 is concerned, it emerges from the said letter that according to the letter, he was engaged for period from 18 days from 01.01.1997. 18.2 According to the said letter, the said engagement would have come to an end on 18.01.1997. 18.3 However, according to the petitioner workman, he was orally terminated with effect from 21.01.1997. 18.4 Meaning thereby, he was continued even after 18.01.1997. 18.5 According to the order of reference, the petitioner workman raised dispute on the allegation that his service was terminated with effect of 27.01.1997. 18.6 In this background, the observation by the learned Tribunal have to be examined. 19. The learned Tribunal has proceeded on the premise that during his deposition the workman mentioned that he was continued in service even after 1997 and he was employed in 1998 also. 18.6 In this background, the observation by the learned Tribunal have to be examined. 19. The learned Tribunal has proceeded on the premise that during his deposition the workman mentioned that he was continued in service even after 1997 and he was employed in 1998 also. 19.1 The learned Tribunal heavily relied on the said statement of the workman and taking into account the said statement in his deposition, the learned Tribunal observed that the workman raised industrial dispute on the premise that his service was terminated on 27.01.1997, whereas in his deposition he claimed that he was engaged in 1998 as well and since the termination of his service by the bank in 1998, was not challenged and the dispute of termination in 1998 was not referred, the reference cannot be allowed and other aspects cannot be considered. On the said ground, the Court dismissed the reference. 19.2 It is pertinent that in its written statement the Bank never claimed that the petitioner was engaged in 1998 and/or that he was continued in service until 1998. The respondent bank in its written statement merely denied the allegations and did not mention the exact, correct and complete facts. 19.3 On the other hand, in his statement of claim, the claimant workman did not mention 21.07.1997 as date of his termination. However, disregarding the said aspect, the learned Tribunal concentrated on one statement made by the petitioner in his deposition viz. that he was engaged by the bank in 1998. 20. During hearing of present petition, learned advocate for the petitioner has not placed any material on record to demonstrate that the said observation by the learned Tribunal is erroneous and/or it is contrary to evidence or document which were available on record. 21. From the record, it emerges that any document demonstrating that the concerned workman was engaged in 1998 was not placed before the learned Tribunal. It was not the claim of the bank that the workman was engaged in 1998. 22. In this background, the statement of the workman made during his deposition that he was engaged in 1998 deserved to be scrutinized more carefully and should have be scrutinized in light of the material on record instead of mechanically catching one statement in the deposition and deciding the reference by concentrating on such one statement of the petitioner claimant. 23. In this background, the statement of the workman made during his deposition that he was engaged in 1998 deserved to be scrutinized more carefully and should have be scrutinized in light of the material on record instead of mechanically catching one statement in the deposition and deciding the reference by concentrating on such one statement of the petitioner claimant. 23. Though this Court has noticed above mentioned discrepancies and anomalies, at this stage, it is difficult and impracticable for the Court to take view different from the view taken by the learned Labour Court and to interfere with the impugned award, more so in absence of any material which would demonstrate that the workmans statement had to be considered in light of such material. 24. This anomaly would normally persuade the Court to remand the matter for fresh consideration by the learned Tribunal. 25. However, the Court is also required to keep in focus the fact that the award came to be passed in 2005 and almost 11 years have passed since then. The Court has also to keep in focus that though there are anomalies with regard to the statement of the workman during his deposition on which the learned Tribunal has concentrated, it cannot be ignored that the workman seems to have made the said statement during his deposition and contrary material is not on record. 26. More particularly, when it is not the case even of the petitioner workman that he never made such statement during his deposition before the learned Tribunal. 27. In this view of the matter, any error cannot be found with the decision of learned Industrial Tribunal to take into account, and to rely upon, the statement made by the workman in his deposition, whereby he appears to have claimed that he was engaged by the bank in 1998. 28. When any contrary material, which may counter the observation by the learned Tribunal with regard to the workmans employment in 1997 is not available on record, then the decision of the learned Tribunal of taking into account the said statement in his deposition and/or in considering the order of reference (whereby the dispute came to be referred for adjudication) cannot be faulted. When the said statement of the workman is considered, then it comes out that the dispute with regard to alleged termination in 1998 was not referred to the learned Tribunal vide order of reference and that therefore, the Tribunal could not have examined the dispute related to the petitioner workmans termination in 1998. 29. In this view of the matter, it would not be proper for this Court to interfere with the award impugned in present petition, which is passed on the basis of, and by relying on, the statement made by the petitioner workman in his deposition and when it is not established before this Court that the petitioner workman had not made such statement during his deposition before the learned Tribunal. 30. In this view of the matter, the petition fails and deserves to be rejected. Hence, the petition is hereby rejected. Rule is discharged.