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Judgment
M. Venugopal, J.—The Appellant/Co-operative Bank has filed the present Writ Appeal as against the order dated 20.08.2010 passed by
the Learned Single Judge in W.P.No. 9162 of 2003. The Learned Single Judge, while passing orders in the Writ Petition filed by the
Appellant/Petitioner, has, among other things, observed that ''... However, the fact was that the order of retrenchment was made pursuant to a
resolution dated 2.12.1987 alleging poor financial condition of the Petitioner bank and that they were unable to pay the wages to their employees.
Therefore, the Labour Court concluded that prior to the order of retrenchment, the Management was bound to comply with the provisions of
Section 25(f) of the Industrial Disputes Act and on failure to comply with the mandatory provisions, the resolution retrenching the second
respondent from service is not sustainable'' etc. Further, the Learned Single Judge opined that the Labour Court disbelieved the reasons given in
the resolution passed by the Petitioner for retrenching the service of the 2nd Respondent more particularly when immediately after the 2nd
Respondent was retrenched, they have employed several persons in various positions and that the Labour Court came to a conclusion that the 2nd
Respondent has to be reinstated in service. In short, the Learned Single Judge found no valid reason to re-appreciate the findings arrived at by the
Labour Court to come to a different conclusion and held that no error could be attributed to the Award passed by the Labour Court and
consequently, dismissed the Writ Petition.
Assailing the correctness of the dismissal of the Writ Petition filed by the Appellant/Management, the Learned Counsel for the
Appellant/Management (Co-operative Bank) submits that the order of the Learned Single Judge dated 20.08.2010 in dismissing W.P.No. 9162 of
2003 is opposed to facts and law of the present case.
The Learned Counsel for the Appellant/Bank urges before this Court that the dispute was raised by the 2nd Respondent/Employee after a lapse
of more than 12 years and that itself is a fatal one.
According to the Learned Counsel for the Appellant/Bank, the Learned Single Judge should have seen that the 2nd Respondent/Employee after
his retrenchment was employed in Pondicherry Fishermen Co-operative Society between 01.07.1989 to 06.06.1991 and it was only as an
afterthought that after a lapse of 12 years had raised the Industrial Dispute against the Appellant. As such, the Learned Single Judge ought to have
interfered with the Award of the Labour Court which directed reinstatement with full back wages.
It is the submission of the Learned Counsel for the Appellant/Bank that merely because the Appellant/Bank had sent 3 communications during
the period of 12 years, it could not be construed that the Appellant/Bank was actively pursuing the dispute. Per contra, it is the contention of the
Learned Counsel for the Appellant/Bank that the communications were sent after a lapse of 5 years and thereafter, a lapse of 12 years clearly
points out that the 2nd Respondent was never interested in pursuing the present dispute and therefore, delay and latches on the part of the 2nd
Respondent/Employee should have been taken into account by the Learned Single Judge.
The Learned Counsel for the Appellant/Bank projects a legal plea that the Appellant/Bank at no point of time claimed that though the 2nd
Respondent/Employee was designated as Manager, he was performing duties and responsibilities as that of workmen defined u/s 2(s) of the
Industrial Disputes Act, 1947.
Even in the petition for vacating the stay before the Learned Single Judge, the 2nd Respondent/Employee reiterated that he was working as
Manager and no averment or claim was made that he was performing the duties of workmen as defined u/s 2(s) of the Industrial Disputes Act.
The Learned Counsel for the Appellant/Bank submits that when the 2nd Respondent/Employee admitted that he was only working as a
Manager of the Appellant/Bank and as such, whether he was a workman or not within the purview of Section 2(s) of the Industrial Disputes Act
was only a point of law and therefore, the Learned Single Judge was not right in observing in the order of the Writ Petition that the Appellant/Bank
had not raised an issue in this regard at the earliest point of time.
Yet another stand taken on behalf of the Appellant/Bank is that even as per the terms of reference of the Industrial Dispute in G.O.Rt.No.
92/2000/Labour. All., Labour Department of the Government of Pondicherry, dated 24.07.2000, the dispute u/s 10(1) of the Industrial Disputes
Act which was referred for adjudication was ''Whether the act of filling up of the vacancies by the management of M/s. Arignar Anna Primary
Agricultural Cooperative Bank, T.R. Pattinam, Karaikal without giving preference to the retrenched employee viz., Thiru T. Arangasami is justified
or not'' etc. and indeed, the 1st Respondent/Labour Court, Karaikal exceeded its jurisdiction in adjudicating the claim as if the present case was a
case of non-employment of the 2nd Respondent and this issue goes to the very route of the jurisdiction of the 1st Respondent/Labour Court, which
aspect the Learned Single Judge while dismissing the Writ Petition failed to consider the same.
Expatiating his contention, the Learned Counsel for the Appellant/Bank contends that the Learned Single Judge should have seen that the 2nd
Respondent/Employee had categorically admitted during cross examination that he was working as a Manager and supervising the work of
persons under him.
The Learned Counsel for the Appellant/Bank takes a plea that the Appellant/Bank was incurring losses ought to have seen that the numerous
reasons furnished by the Appellant/Bank before the Labour Court in their Counter Statement and the Learned Single Judge had committed error in
coming to the conclusion that the order of retrenchment passed against the 2nd Respondent/Employee was punitive in nature.
Lastly, it is the submission of the Learned Counsel for the Appellant/Bank that even assuming that the 2nd Respondent was discharging the
functions of the workman in the light of the fact that the Appellant/Bank had never employed any manner until 1996 and even during 1996, an
existing clerk was promoted as a manager, the action of the Appellant/Bank could not be found fault in any manner and therefore, the ingredients
of Section 25H or the relevant rules would not be attracted in the instant case on hand.
Conversely, it is the submission of the Learned Counsel for the 2nd Respondent/Employee that the Learned Single Judge as well as the 1st
Respondent/Labour Court had appreciated the available material facts on records and merits and has rejected the contentions put forward by the
Appellant/Bank [Petitioner in Writ Petition] and ultimately, the Writ Petition filed by the Appellant came to be dismissed which need not be
interfered with by this Court at this distance point of time.
At this stage, a cursory perusal of the contents of Claim Statement filed by the 2nd Respondent/Employee in I.D.No. 8 of 2000 [on the file of
the 1st Respondent/Labour Court] shows that he was employed as Manager of the Appellant/Bank and initially appointed as Special Officer of the
Bank through an order undated from 1.3.1978 and subsequently, worked as Manager of the Bank. Further, as per the resolution passed by the
Appellant/Bank dated 21.2.1987, it was mentioned that there was deficit funds and decided to stop the business and employment of people
employed then were decided to be retrenched. As per the order of retrenchment given on 23.02.1987, he was retrenched along with another
salesman V. Govindarasu and that the very retrenchment itself is not legally valid on more than one ground u/s 25(f) of the Industrial Disputes Act,
1947.
The stand taken by the 2nd Respondent/Employee, in the Claim Statement, was that one month notice mentioning the reasons for retrenchment
was not furnished by the Appellant/Bank and also that in lieu of retrenchment notice wages for the said period was not paid to him and also that
notice was not served in the prescribed manner on the appropriate Government besides no notification or in the official gazette.
In effect, the contention of the 2nd Respondent/Employee was that the ingredients of 25(f)(c) of the Industrial Disputes Act were not complied
with by the Appellant/Bank. Without payment of compensation, his retrenchment is involved in law. Therefore, he claims that he is entitled for
reinstatement with full back wages.
That apart, in the Claim Statement in paragraph 4, the 2nd Respondent had stated that he and another salesman viz., Govindarasu were
retrenched from service by the Appellant/Bank based on the reason of deficit of funds and business. Later, the financial and business positions of
the Appellant/Bank became commendable and presently about 6 persons were employed and the society was enhanced to the status of the co-
operative bank and the clerk previously employed in the Bank is the present manager. The persons employed in the Bank are as follows:
The 2nd Respondent/Employee took a stand before the 1st Respondent/Labour Court that as per Section 25(h) of the Industrial Disputes Act,
if an Employer proposes to take into his employment, any person he wish in such manner, as may be prescribed must give an opportunity to the
retrenched workman to offer themselves for re-employment and they shall have the first preference over the others. Inspite of repeated
applications of the 2nd Respondent/Employee to employ him, the Appellant/Bank ignored his rightful claim and employed new persons.
Even the order of dismissal and a resolution passed as the basis for his dismissal had not mentioned about the alleged deficit handling of the
business of the Appellant/Bank. As such, his non-employment is not legally proper. Therefore, he made a claim for reinstatement into the
Appellant/Bank''s service with the reservation for seniority with back wages and all perquisites with increment, bonus, salary as per the revised and
applicable pay to him.
It transpires from the Counter Statement filed by the Appellant/Bank [before the 1st Respondent/Labour Court in Industrial Dispute] that the
Appellant/Bank had taken a categorical stand that the 2nd Respondent''s conduct was not good while he was working as a Manager in the Bank
and further, he committed so many irregularities in the business of paddy procurement and caused deficiency to the society''s funds, amounting to
Rs. 31,145.51/- paise and till date, he has not paid the deficiency dues to the Bank inspite of reminder letters sent to him. Also that while he was
working as a Manager in the Appellant/Bank, he was also in charge of fair price shop under the control of the Appellant/Bank and because of his
inability under mis-management, he was charged by the food cell police and a case was registered against him before the Court of Law and he was
convicted and paid the fine amount.
Continuing further, right from the beginning, the activities of the 2nd Respondent was totally against the improvement of the Appellant/Bank and
he also committed lot of unwanted things against the bank. Furthermore, he was working in the Pondicherry fishermen federation limited for more
than two years, after his retrenchment from service in the Appellant/Bank and therefore, he cannot again claim for reinstatement from his earlier
Employer. He was retrenched from service legally and one month salary was given to him by the Appellant/Bank in lieu of one month notice to him
about his retrenchment. However, he returned the amount to the Appellant/Bank and informed to adjust the amount for his dues with the bank.
Earlier, the 1st Respondent/Labour Court on 14.06.2002 passed an Award with costs in I.D.No. 8 of 2000 [filed by the 2nd
Respondent/Claimant], inter alia, observing that prior to termination of the 2nd Respondent/Employee, he was not given one month notice or
wages as required u/s 25(f) of the Industrial Disputes Act and further, it ordered for his reinstatement with continuity of service and back wages
[after deducts the wages received by him in the Pondy Fisheries Cooperative Federation for the period from 1.7.89 to 6.6.91].
We deem it appropriate to point out that the Appellant/Bank takes a plea that the 2nd Respondent/Employee was working in the Bank at the
time of his retrenchment on 21.02.1987 as ''Manager'' and therefore, he could not be called as ''Workman'' as per Section 2(s) of the Industrial
Disputes Act and therefore, the very dispute itself is not per se maintainable before the 1st Respondent/Labour Court.
At this juncture, a perusal of the Claim Statement filed by the 2nd Respondent/Employee in I.D.No. 8 of 2000 on the file of the 1st
Respondent/Labour Court shows that he was employed as the Manager of the Appellant/Bank and initially he was appointed as the Special
Officer of the Bank through an order undated from 1.3.1978 and subsequently, worked as the Manager of the Bank. Also, the counter filed by the
Appellant/Bank proceeds to mention that the 2nd Respondent working as Manager in the Appellant/Bank at the time of his retrenchment and he
was also in charge of the fair price shop and which was under the control of the Bank. Furthermore, the termination order dated 23.02.1987
issued under the proceedings of the Appellant/Bank signed by its President also speaks of the 2nd Respondent as Manager whose services the
Appellant/Bank decided to terminate along with Govindarasu since the services were no longer required and they were ordered to be relieved
from the services with effect from 23.02.1987 by giving them a month''s notice. Even in W.P.M.P. 21305 of 2003 [wherein the 2nd Respondent
had sought for issuance of direction of this Court to pay him the last drawn wages by the Appellant/Bank as per Section 17(B) of the Industrial
Disputes Act. The 2nd Respondent had, in paragraph 1, inter alia, stated that he was working as Manager on 21.2.1987 and he was removed
from service on 23.02.1987 by way of retrenchment.
We worth recall the decision in Shri Aloysius Nunes Vs. Thomas Cook India Ltd., wherein, it is observed as follows:
From the evidence as considered it cannot be said that the petitioner herein was engaged mainly in a managerial or administrative capacity. All that
is seen, is that he was assigned the work to look after tourists arriving by airways and their lodging. He was not exercising any managerial or
administrative function as normally understood. He was not incharge of the section. He had no authority to appoint any worker. All that he was
doing was to receive the tourists, make out their bills, verify the bills as received. All these would be checking work of clerk and not that of a
manager or administrative officer.
Also, in the aforesaid decision, at page 161, it is held as follows:
One of the tests to find out whether the person employed is in a managerial or administrative capacity was to ascertain if he was entrusted with the
duty/responsibility of distribution of work.
Another test that could be considered is whether in the discharge of his managerial or administrative duties, did he perform any supervisory work.
It is clear that for a person to be an officer (managerial/administrative) another test would be does he occupy a position, to command or decide
and is he authorised to act in certain matters within the limits of the authority given to him without the sanction of Manager or other supervisor?
Another test would be: Is he in command of a territory or department over which he exercises his managerial function?
The next is: What is the designation in the official record of the person and in the attendance register.
We relevantly point out the decision in Leena Patade (Smt.) Vs. Union of India (UOI), Ministry of Labour and Others, whereby and
whereunder, in paragraph 6, it is observed as follows:
It is apparent from the above observations that where a detailed investigation is necessary to determine whether the person raising the industrial
dispute is workman as defined u/s 2(s) of the Act, then the Government will make a reference u/s 10 of the said Act. The reasons given by the
Government would show that the Government came to the conclusion that there is no convincing evidence that the petitioner is a ""workman"" within
the meaning of Section 2(s). It would further appear that the Government was satisfied that the petitioner was getting all the benefits available to an
officer of the bank. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made
to it.
In the interest of justice, we cite the following decisions:
(a) In the decision C. Channaiah V. Labour Court, Mysore and another, [1991-2-L.L.N.-684], it is observed that ''The petitioner admitted that he
was drawing salary of Rs. 500/- per month, and was designated, appointed and working as manager of the company'' and ''he contended that the
nature of his work was clerical which included conduct of business, maintenance of accounts and ledgers and several other clerical duties'' and
consequently held that he is not a workman and further, it has been stated that ''salary drawn by a person is not the sole criterion to decide whether
he is a workman or not''.
(b) In the decision Ahmed N. Makada Vs. Government of India and Others, in paragraphs 6 & 7, it is observed and held as follows:
Rejoinder was also filed by the petitioner before the Conciliation Officer in which it was mentioned that he had no power and control over the
employees of Surat Branch and that he was working merely as Senior Officer under the control of higher Authority of the Bank. The failure report
Annexure-E also shows that the management''s contention was that the petitioner is not a workman under the law and that the contention of the
petitioner was that he was workman under the provisions of the Industrial Disputes Act. It was because of this dispute that the conciliation
proceeding failed and failure report was submitted.
It was therefore clear from the material on record that there was disputed question whether the petitioner is a workman or was Branch Manager
on the relevant date within the meaning of Sec. 2(s)(iv) of the Industrial Disputes Act and this dispute could not be adjudicated upon by the
appropriate Government through Annexure-F. As such the impugned order contained in Annexure-F cannot be sustained. It has therefore to be
quashed.
(c) In the decision of the Hon''ble Supreme Court in Hussan Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and Another, it is held
as follows:
In a case where the Labour Court as well as the High Court entertains doubts about the status of the appellant as a workman within the meaning of
S. 2(s) of the I.D. Act, instead of embarking upon an adjudication in the first instance as to whether the undertaking in which the appellant works is
an industry or not, so as to attract the provisions of the Industrial Disputes Act, it should take up the question about the status of the appellant for
adjudication at the threshold and if only the finding recorded is against the appellant refrain from adjudicating on the larger issue affecting the
various kinds of other employees, as to the character of the undertaking, as an industry or not. The larger issue should be entertained for
consideration only in case where it is absolutely necessary and not when the claim before it could have been disposed of otherwise without going
into the nature and character of the undertaking itself.
(d) In the decision C. Narayan Reddy V. Management of Ajantha Theatre, [1996 (69) IFLR 998 & 999], it is held that ''Person is mainly
employed in the managerial or administrative capacity would not be a ''workman'' and the salary drawn by him would be of no consequence for the
purpose of determining whether he is a ''Workman'' or not''.
There is no two opinion of the fact that the status of ""Workman"" is to be determined with reference to the nature of duties and functions
performed by an individual. Admittedly, neither the designation nor salary is the factor to determine whether an employee is a workman or not.
On going through the Award dated 14.06.2002 in I.D.No. 8 of 2000 passed by the 1st Respondent/Labour Court, we are of the considered
view that the 1st Respondent/Labour Court has not framed an issue whether the 2nd Respondent was a Workman as per Section 2(s) of the
Industrial Disputes Act or Manager of the Appellant/Bank and also not rendered its finding/decision in this regard. In case, the 2nd Respondent
was working as Manager in Bank at the time of his retrenchment on 21.02.1987, then, the 1st Respondent/Labour Court should have rendered a
finding whether the Industrial Dispute referred to by the Government of Pondicherry as per G.O.Rt.No. 92/2000/Labour. All., Labour
Department, dated 24.07.2000 is per se maintainable in law.
To put it shortly, the essential condition of an individual to be a workman within the definition of Section 2(s) of the Industrial Disputes Act is
that there should be a relationship between the Employer and himself as that of Employer-Employee or between Master and Servant. As a matter
of fact, it is to be initially found out as to whether a person is employed to do manual or clerical work, be it skilled and unskilled, technical or non-
technical job. If the manual or clerical work is only a small portion of the duties of an individual concerned and incidental to his main work, which is
not manual or clerical, then such a person would not come within the purview of ''Workman'', in our considered view.
The power of distribution of work and allocating specific duties is one of the other factors that will have to be taken into account while deciding
whether a certain workman is employed to discharge supervisory work. Managerial or administrative functions of a person signifies that he is to
control the work of others. To put it succinctly, only if a person is to come within the purview of the definition of Section 2(s), then, he should fulfil
the following requisite factors: (a) he ought to be an individual employed in an industry for hire or reward; (b) he should be engaged in skilled or
unskilled manual, supervisory, technical or clerical work; and (c) he ought not to be a person falling under any of the four clauses viz., (i) to (iv)
specified in the definition of Section 2(s) of the Industrial Disputes Act. Also, the definition visualises that a workman employed in an industry to do
any skilled or unskilled manual, supervisory, technical or clerical work for hire reward includes within its ambit any such individual who has been
dismissed, discharged or retrenched in connection with, or as a consequence of an Industrial Dispute, or whose dismissal, discharge or
retrenchment has led to that dispute.
If an Employee has the power of distribution of work to others and assign duties to them, then, his position is that of a supervisor performing
the act of supervision. After all, the term ''Supervisor'' is one who has authority/control over others. It also means some one who directs others. A
supervisory work may be differentiated from the position of Manager/Administrator. The primordial duty of a supervisor is to see that work is
performed by other employees/workers are under his control in accordance with the norms prescribed by the Employer/Management.
Even the Learned Single Judge, while dismissing W.P.No. 9162 of 2003 [filed by the Appellant/Bank], in paragraphs 14 & 15, has
categorically observed as follows:
Before the Labour Court, the second respondent filed his claim statement. Apart from various other grounds, the second respondent has raised
a contention that the order of retrenchment is in violation of section 25(f) of the Industrial Disputes Act. The petitioner Management filed their
counter statement and even in the said counter statement, the petitioner did not raise the question of jurisdiction. Thus, it is clear that the question as
to whether the second respondent was a workman or a person employed in Managerial capacity is raised for the first time before this Court. A
faint plea has been raised by the learned counsel for the petitioner contending that in the written argument before the Labour Court, such contention
was raised. As held by their Lordships of the Hon''ble Supreme Court in the case of C. GUPTA, referred supra, the question whether the second
respondent was a workman or discharging managerial function is a question of fact. Therefore, it has to be not only specifically pleaded, but also to
be proved before the Labour Court. In the absence of any such specific plea and in the absence of any proof to the said effect, such a plea cannot
be allowed to be raised at this distance of time. Mere mention in the written argument before the Labour Court will not justify the stand of the
Management.
It is not in dispute that the second respondent was earning only Rs. 750/- per month and from the bylaws it is clear that the second respondent
had only power to spend to the value of Rs. 5/-. Therefore, it is evidently clear said that the second respondent was not exercising managerial
function. In any event, a mere attempt by the second respondent stating that he was the ""Manager"" would not make him a person discharging
managerial functions. In absence of any evidence to this aspect, I am not able to countenance such a plea raised by the petitioner.
It is the evidence of P.W. 1 (2nd Respondent in the Writ Petition) (before the 1st Respondent/Labour Court) that he was appointed as Special
Officer in the Appellant/Bank and continuously worked as Manager. He further deposed that he could not assign reason as to why he had not
informed as to his employment at Puducherry, during his course of enquiry before the Labour Officer. Also, he deposed (in cross-examination) that
after he was relieved from his post of Manager, he worked in the Puducherry Fishermen Co-operative Society from 01.07.1989 till 06.06.1991
on a consolidated monthly salary of Rs. 800/-.
The evidence of R.W. 1 (present President of the Appellant/Bank) is that 2nd Respondent/Employee was relieved from service as Manager of
the Appellant/Bank in February, 1987.
A perusal of Ex. A.3-Relieving Order in respect of 2nd Respondent/Employee shows that he was relieved from duty from the forenoon of
23rd March 1987 as per Board Resolution dated 21.02.1987 etc. Likewise, in Ex. A.7-Resolution of the Appellant/Bank was mentioned as
Manager working from 01.03.1978 and that during his service period, the society had functioned properly in a progressive manager.
On going through the contents of Ex. B.3-Reply of the Appellant/Bank dated 02.11.1992 addressed to the 2nd Respondent/Employee, it is
evident that the 2nd Respondent was stated to have served as Manager approximately for three years etc. Even in the subject portion of Ex. B.3-
Letter of the Bank, the Bank had clearly stated that it could not appoint him in the post of Manager.
Really speaking, in paragraph 2 of the counter statement in I.D.No. 8 of 2000, the Appellant/Bank [as Respondent) has crystal clear terms
mentioned that the 2nd Respondent (Petitioner/Claimant in I.D.No. 8/2000) while he was working as Manager in the Appellant/Bank was also in
charge of fair price shop under the control of the Bank.
As such, we hold without any hesitation that the Appellant/Bank has in crystal clear terms pleaded that the 2nd Respondent was working as
Manager in the Bank. Therefore, the contra view taken by the Learned Single Judge in the order in W.P.No. 9162 of 2003 dated 20.08.2010 that
''The question as to whether the 2nd Respondent or a person employed in managerial capacity is raised for the first time before this Court'' is not a
correct one. In fact, whether a person is a workman u/s 2(s) of the Industrial Disputes Act is not a pure question of fact, but it is a mixed question
of fact and law, in the considered opinion of this Court.
Besides the above, the Learned Single Judge, while passing the order in the Writ Petition, in paragraph 15, has stated that ''It is not in dispute
that the 2nd Respondent was earning only Rs. 750/- per month and from the bye-laws, it is clear that he had only power to spend to the value of
Rs. 5/- and therefore, he was not exercising any managerial function and in any event, a mere attempt by him stating that he was the ""Manager
would not make him a person discharging managerial functions and further, in the absence of any evidence to this aspect, he was not able to
countenance such a plea raised by the Bank.
At this stage, we significantly make a pertinent mention that neither the designation nor salary of a person is a factor to determine whether a
person/employee is a workman or not. Whether an Employee is a workman or not, should be decided at the threshold as per the decision of the
Hon''ble Supreme Court in Hussan Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and Another, .
Viewed in that perspective, we come to an inevitable conclusion that both the 1st Respondent/Labour Court, while passing the Award in
I.D.No. 8 of 2000 dated 14.06.2002 as well as the Learned Single Judge, while dismissing W.P.No. 9162 of 2003, by order dated 20.08.2010,
have not gone into the aspect viz., whether the 2nd Respondent was a Workman as per Section 2(s) of the Industrial Disputes Act and have not
decided this point/issue at the first instance.
It cannot be gainsaid that while adjudicating an industrial dispute, the Labour Court has to confine its Award to the pleadings set out by the
parties.
Coming to the plea taken on behalf of the 2nd Respondent/Employee that his very retrenchment, as per order of retrenchment given to him on
23.02.1987 is illegal, in the eye of law [especially when the same is not legally valid as per Section 25(f) of the Industrial Disputes Act] for non
payment of compensation as the case may be, it is to be pointed out that the Appellant/Bank, in its counter to the I.D.No. 8 of 2000 [before the
1st Respondent/Labour Court], in paragraph 4, has specifically pleaded that the 2nd Respondent/Employee was retrenched from service legally
and one month salary was given to him by the Appellant/Bank in lieu of one month''s notice to him, about his retrenchment. But, he returned the
amount to the Bank, by informing them to adjust the amount for his dues with the Bank.
In this connection, it is not out of place for this Court to pertinently point out the decision in Shri Laxman Ramchandra Mai Vs. Executive
Engineer, Irrigation Department, wherein it is held that ''Where an employer had offered retrenchment compensation there was compliance with
provisions of Section 25F of the Industrial Act, 1947'' and therefore, the order of termination is not illegal or improper.
On going through the order of the Learned Single Judge in W.P.No. 9162 of 2003 dated 20.08.2010, in paragraph 16, it is quite evident that
''... The Labour Court after considering the oral and documentary evidence held that the Management by a resolution dated 21.2.1987, retrenched
the service of the 2nd Respondent and another employee Govindarasu with effect from 23.2.1987 and before the order of retrenchment was
passed, the Management did not give any notice or any pay in lieu of notice and deposition of the Management witness was to the effect that when
the 2nd Respondent was in employment, he caused loss to the society and certain complaints were received and based on that the 2nd
Respondent was retrenched etc''. As a matter of fact, both the 1st Respondent/Labour Court, in its Award in I.D.No. 8 of 2000 dated
14.06.2002 as well as the Learned Single Judge in the order passed in W.P.No. 9162 of 2003 dated 20.08.2010, have not dealt with the aspect
of Appellant/Bank''s averment in para 4 of the Counter that when the 2nd Respondent/Employee was retrenched from service whether he was
given one month salary by the Appellant/Bank in lieu of one month''s notice to him about his retrenchment and further, whether it is true that the
2nd Respondent/Employee returned the amount to the Appellant/Bank and informed them to adjust the amount to the dues to be paid by him. If
really, the Appellant/Bank has offered one month salary in lieu of notice at the time of 2nd Respondent/Employee''s retrenchment as compensation,
then, in law, it may not be open to the 2nd Respondent/Employee to take a plea that there has been a violation of Section 25(f) of the Industrial
Disputes Act.
Adverting to the contention of the Appellant/Bank that even assuming that the 2nd Respondent was discharging the function of a ""Workman"",
the fact remains that the Appellant/Bank had never employed any Manager until 1996 and during the year 1996, an existing clerk was promoted as
Manager and as such, Section 25H of the Industrial Disputes Act is not attracted, it is to be pointed out that Section 25H of the Industrial Disputes
Act makes an obligation on the Employer to give an opportunity to the retrenched workman to offer himself for re-employment when it intends to
fill up the vacancy. If the retrenched workman offer himself for re-employment, ordinarily, an Employer has accorded preference to him over other
persons. It is remembered that Section 25H of the Act gives the right to a retrenched Employee to be ''re-employed'' in the event a vacancy arises
in establishment. In case of such re-employment, the question of back wages would not arise as per the decision in Jaswinder Singh Passi and
Others Vs. Registrar, Co-operative Societies, .
Reemployment within the meaning of Section 25H of the Act means taking back a retrenched Employee/Workman in the same category to
which he belonged as per the decision of the Hon''ble Supreme Court in [(1961) 2 LLJ 1190]. If the service of a workman has been terminated
for any other reason than retrenchment, then, he will not be entitled to seek reemployment as per the ingredients of Section 25H of the Industrial
Disputes Act.
One cannot brush aside an important fact that reemployment to a retrenched employee will not accrue, when there is no evidence of any fresh
appointment.
It is not out of place for this Court to make a relevant mention that the Hon''ble Supreme Court, in the decision in Regional Manager, S.B.I.
Vs. Rakesh Kumar Tewari, in paragraph 26, has observed as follows:
In directing reinstatement, neither the High Court nor the Tribunal had considered that the order might affect the interest of those others who were
employed after the respondent. As was said in Central Bank of India V.S. Satyam (supra):
The other persons employed in the industry during the intervening period of several years have arisen during the interregnum. These third parties
are also workmen employed in the industry during the intervening period of several years. Grant of relief to the writ petitioners (respondent herein)
may result in displacement of those other workmen who have not been impleaded in these proceedings, if the respondents have any claim for re-
employment.
Also, in the aforesaid decision at page 845 in paragraphs 27 & 28, it is observed and held thus:
Besides in the second appeal admittedly several persons had been appointed prior to the respondent on a temporary basis. They would have
prior rights to reemployment over the respondent on the basis of the principles contained in Sections 25G or 25H.
In the circumstances, the award of the Tribunal and the decision of the High Court holding that the respondent''s services were wrongfully
terminated were both in correct. They are accordingly set aside. There is as such no question of payment of any back wages. Additionally the only
other reason given by the High Court for directing reinstatement of the respondent in the second appeal was based on an equitable consideration of
the respondent having allegedly been reinstated. The factual basis for this conclusion was erroneous. Both appeals are accordingly allowed.
However the appellant has paid sums to the respondents in both the cases which sums shall not be recoverable from the respondents by reason of
the allowing of these appeals. There will be no order as to costs.
At this stage, the Learned Counsel for the Appellant/Bank submits that on 08.07.1995 a Resolution has been passed by the President of the
Appellant/Bank seeking permission from the Pondicherry State Co-operative Registrar for payment of salary to G. Velupillai in the post of
Manager, Grade-I. Also, in Resolution No. 1, it is mentioned that the said Velupillai has been working in the Appellant/Bank from the year 1972 in
the post of Clerk and Manager in a satisfactory manner and from 01.07.1987 he has been receiving the salary of Junior Assistant, but doing the
work of Manager (In-charge). The salary for the said Velupillai in the post of Manager Grade-I has mentioned as Rs. 1350, 35-1650-40, 2050,
50, 2800.
Added further, on 22.07.1995, the Appellant/Bank has passed a Resolution No. 12 mentioning that M/s. N. Chandra has been working in the
Bank from the year 1991 continuously in a satisfactory manner. However, she is employed on temporary basis on daily wages and since she holds
the necessary educational qualification for a Clerk and also she is sincere and efficient in her work, it has been resolved by the Bank to request the
Pondicherry State Co-operative Registrar through Pondicherry State Co-operative Bank to grant permission for granting her the permanent post
of Clerk from 01.01.1993 and also provide wages equivalent to the Junior Clerk with effect from 01.01.1993. Also, her salary is assessed as Rs.
800, 20-1000-25, 1250, 30, 1700.
The Managing Director of the Pondicherry State Co-operative Bank, in his letter dated 18.12.1995 addressed to the Registrar of Co-
operative Societies, Pondicherry, has, inter alia, stated as follows:
The Board of Directors in their Board meeting held on 08.07.1995 have resolved to request the Registrar to promote Thiru. G. Velupillai as
Manager Grade I with effect from 01.01.1991 and also to fix the scale of pay as applicable to the post of Manager Grade I. In this connection, it
is stated that Thiru. G. Velupillai is working in the society into bank i.e. 09.02.1993 the bank has entrusted the work of Manager but allowed to
draw the scale of pay of Junior Clerk. The Primary Agricultural Coop. Bank should have a Manager to control the sub-ordinate staff and also to
manage the affairs of the bank properly. Since Thiru. G. Velupillai is working in the society for a long period and he is also officiating as Manager,
we may consider the request of the society for promoting the said employees as Manager. We therefore recommend that Thiru. G. Velupillai,
Junior Clerk may be promoted as Manager Grade II with effect from 01.04.1995 and the scale of pay applicable to that post may be paid to the
employee.
The Board of Directors have also requested the Registrar to regularise the services of Tmt. N. Chandra, who is working as Junior Clerk
temporarily with effect from 01.01.1991. She is qualified for the post of Junior Clerk. If Thiru. G. Velupillai is promoted as Manager Grade II the
resultant vacancy may be filled by this Junior Clerk Tmt. N. Chandra by regularising her services. We also recommend that she may be regularised
with effect from 01.01.1996. We enclose herewith the copies of the Board resolution, the financial particulars of the society as on 31.03.1995 for
kind perusal of the Registrar.
The Deputy Registrar, Government of Pondicherry, Co-operative Department, in his letter dated 11.1.1996 addressed to the President of the
Appellant/Bank, while according approval in regard to the proposal for regularisation of staff, has stated the following:
The proposal Aringer Anna Thirumalai Rayan Pattinam Primary Agricultural Co-operative Bank on the subject mentioned above and the
recommendation of the Managing Director, Pondicherry State Co-operative Bank have been examined. In view of the justification enumerated
therein, the Registrar of Co-operative Societies is pleased to permit the Aringer Anna T.R. Pattinam Primary Agricultural Co-operative Bank to
promote Thiru G. Velupillai, Junior Clerk as Manager Gr. II with effect from 1.4.95 and to regularise the service of Tmt. Chandira, in the post of
Junior Clerk with effect from 1.1.1996 and to fit them in the following Scale of pay applicable to the respective post with usual allowances in
Vogue.
On behalf of the Appellant/Bank, a Service Certificate in respect of G. Velupillai has been produced before this Court in the form of typed set
of papers, where from it is seen that the individual has been working in the Appellant/Bank since 1972 in the following various positions:
Admittedly, a copy of the Resolutions dated 08.07.1995, 22.07.1995 of the Appellant/Bank, copy of the letter from the Pondicherry State
Co-operative Bank addressed to the Registrar, Co-operative Societies dated 18.12.1995, copy of the letter dated 11.01.1996 issued by the
Government of Pondicherry to the Appellant granting permission to Mr. Velupillai and Chandra and lastly, copy of the Service Certificate issued to
G. Velupillai dated 18.02.2003 have not been produced before the 1st Respondent/Labour Court and marked as Exhibits on behalf of the
Appellant/Bank in I.D.No. 8 of 2000 on the file of the 1st Respondent/Labour Court.
Therefore, we are of the considered view that an opportunity is to be provided in I.D.No. 8 of 2000 on the file of the 1st Respondent/Labour
Court to the Appellant/Bank to put forth his stand point of view in regard to these documents mentioned supra, by letting in oral and documentary
evidence so as to enable the 1st Respondent/Labour Court to come to a fair and just conclusion in the subject matter in issue.
As regards the stand taken on behalf of the Appellant/Bank that the term of reference made by the Government in G.O.Rt. NO.
92/2000/Labour. All., Labour Department, dated 24.07.2000 is bad, it is to be pointed out that in law, the term of reference can be amended or
modified only by the Government, but it cannot be rescinded or withdrawn. Also that an appropriate Government cannot decide that an Employee
is not a workman as per Section 2(s) of the Industrial Disputes Act.
The last drawn wages directed to be paid to the 2nd Respondent/Employee as per Order dated 20.08.2003 in W.P.M.P.No. 21305 of 2003
in W.P.No. 9162 of 2003, if paid shall not be recovered by the Appellant/Bank nor the same be refunded by the 2nd Respondent/Employee to
the Appellant/Bank, since the said 17(B) wages, in law, if paid, is neither recoverable nor refundable.
On a careful consideration of respective contentions and in view of the fact that both the 1st Respondent/Labour Court as well as the Learned
Single Judge in the Award dated 14.06.2002 in I.D.No. 8 of 2000 and in the order of the Writ Petition No. 9162 of 2003 dated 20.08.2010 have
not dealt with the issue as to whether the 2nd Respondent/Employee was a Workman or not u/s 2(s) of the Industrial Disputes Act, 1947. Also
that both the 1st Respondent as well as the Learned Single Judge both in the Award in I.D. and in the order of the Writ Petition have not dealt with
the aspect in regard to the fact that one month salary was paid by the Appellant/Bank to the 2nd Respondent/Employee in lieu of one month notice
about his retrenchment and therefore, Section 25(f) of the Industrial Disputes Act was not violated. Moreover, when the 2nd
Respondent/Employee discharged the functions of workman in the Appellant/Bank, the Bank never employed any Manager till the year 1996 and
also that during the year 1996 an existing Clerk was permitted as Manager and therefore, the invoking of Section 25H of the Industrial Disputes
Act would not arise was also not gone into by the 1st Respondent/Labour Court as well as the Learned Single Judge at the time of passing of the
Award in I.D.No. 8 of 2000 dated 14.06.2002 and also passing the orders in W.P.No. 9162 of 2003 dated 20.08.2010 and more importantly,
when the Resolutions of the Appellant/Bank dated 08.07.1995 and 22.05.1995, copy of the letter from the Pondicherry State Co-operative Bank
dated 18.12.1995, copy of the letter dated 11.01.1996 issued by the Government of Pondicherry [Appellant granting permission to Mr. Velupillai
and Chandra in regard to the proposal for regularisation of staff] and the Service Certificate issued to G. Velupillai dated 18.02.2003, admittedly
were not produced before the 1st Respondent/Labour Court in I.D.No. 8 of 2000, this Court, without expressing any opinion on the merits of the
matter in the present case, to secure the ends of justice and with a view to provide an opportunity to the Appellant/Bank to project/substantiate
their version projected in its Counter in the main case in I.D.No. 8 of 2000, permits the Appellant/Bank to exhibit the Resolutions, copy of the
letter from the Pondicherry State Co-operative Bank, copy of the letter issued by the Government of Pondicherry to the Appellant/Bank granting
permission to G. Velupillai and Chandra and the Service Certificate issued to G. Velupillai etc., referred to supra and also to let in oral and
documentary evidence in this regard and also to examine additional witnesses and to mark additional documents, this Court, in the interest of
justice, Equity, Fair Play, Good Conscience and even as a matter of prudence, sets aside both the Award dated 14.06.2002 in I.D.No. 8 of 2000
on the file of the 1st Respondent/Labour Court and the order dated 20.08.2010 in W.P.No. 9162 of 2003 passed by the Learned Single Judge, in
furtherance of substantial cause of justice and as a logical corollary remits back the I.D.No. 8 of 2000 on the file of the 1st Respondent/Labour
Court for fresh disposal in accordance with law. Consequently, the Writ Appeal is allowed. In the result, the Writ Appeal is allowed. The Award
passed by the 1st Respondent/Labour Court dated 14.06.2002 in I.D.No. 8 of 2000 and the order passed by the Learned Single Judge in
W.P.No. 9162 of 2003 are set aside by this Court for the reasons assigned by this Court in this Writ Appeal. Liberty is granted to both parties to
raise all factual and legal pleas before the 1st Respondent/Labour Court in I.D.No. 8 of 2000. Equally, it is open to the 2nd Respondent/Employee
to let in additional oral and documentary evidence and in the event of the Appellant/Bank examining additional witnesses and marking documents,
then, the 2nd Respondent/Employee is permitted to cross-examine the said witnesses and to take all defences available in the manner known to
law. The 1st Respondent/Labour Court shall provide adequate/enough opportunities to both parties to produce the best evidence in regard to the
fresh disposal of the main I.D. and in any event, the 1st Respondent/Labour Court is directed to dispose of the main I.D.No. 8 of 2000 pending on
its file in a dispassionate manner [untrammelled by any of the observations made by this Court in this Writ Appeal] within a period of five months
from the date of receipt of copy of this Judgment.