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Judgment
S.S. Sudhalkar,J.—This writ petition has been filed by the employer challenging the award date 8.6.1999 (copy annexure P/7) passed by the Labour Court vide which respondent No. 2 was ordered to be reinstated with continuity of service and full back wages. Rs. 500/- were also awarded as costs of proceedings.
Respondent No. 2 was appointed in the petitioner-Bank as a Peon. A copy of the office order regarding appointment is at annexure P/3. The relevant part of the same is reproduced as under :-"In pursuance with directions given by and the informal discussions held with the managing committee members of the Bank, Shri Gopal Krishan S/o Shri Shiv Dhan, Village and P.O. Khubru Teh. Ganaur, Distt. Sonepat, is appointed as Peon on ad hoc and Temporary basis in this Bank in the scale of pay Rs. 950-20-1150-EB-25-1500 plus usual allowances admissible under Bank''s Rules. His appointment is subject to the approval of the Managing Committee of the Bank and is terminable after giving one month''s notice or salary in lieu thereof. If he wants to leave the service, he shall be required to give one month''s notice or deposit one month''s salary in lieu thereof in the bank."
Counsel for the petitioner argued that the appointment of respondent No. 2 was illegal one and he was given appointment without following any procedure because he happens to be the brother of the Manager of the petitioner. He drawn my attention to annexure P/2 vide which a direction has been given to appoint respondent No. 2 on the post of Peon on ad hoc basis and put his case for the approval of the Board in the next meeting. In the meeting held on 15.11.1991 (copy of proceeding at annexure P/4), the Board approved the appointment of respondent No. 2. However, by a subsequent decision on 10.4.1992 (copy annexure P/5) the Board resolved to terminate the services of respondent No. 2 as his appointment was not according to the proper procedure and he was real brother of the Manager.
Respondent No. 2 had earlier filed Civil Writ Petition No. 5388 of 1992 (copy annexure P/9) which was dismissed as withdrawn on 22.2.1994 for availing the remedy before the Registrar under the Cooperative Societies Act or for a reference under the Industrial Disputes Act. Respondent No. 2 raiseda demand by issuing demand notice. The matter was referred to the Labour Court who passed the impugned award.
The Labour Court had found that the appointment was confirmed in the meeting of Board of Directors. It also held that being brother of the Manager, respondent No. 2 is no disqualification for getting the service with the petitioner-bank. It also held that there was unfair labour practice because respondent No. 2 was not allowed to complete the tenure of 240 days service. It also held that one month''s notice or salary in lieu thereof was not given as per the appointment order.
As per the appointment order (supra), there was a provision of giving one month''s notice. Counsel for the petitioner has relied on the judgment of the Supreme Court in the case of The Oriental Insurance Co. Ltd. v. T. Mohammed Raisuli Hassan 1998(1) S.L.R. 431. It has been held therein that in case of temporary appointment and when there is no statutory rule requiring one month''s notice for termination, non-service of one month''s notice before termination of service will not invalidate the order of termination and it only amounts to breach of condition and can claim only one month''s salary. Therefore, respondent No. 2 cannot get the advantage of the fact that notice as per order annexure P/3 was not given.
Being the real brother of the Manager of the Bank is admittedly not a disqualification. However, the termination is for the two reasons :
The appointment was not as per the proper procedure; and
That respondent No. 2 was the real brother of the Manager.
Being the real brother of the Manager can be said to be the reason mentioned for not following the proper procedure, if one reads the minutes of the meeting, copy (annexure P/5). As the appointment was not legal, respondent No. 2 was not entitled to notice. Moreover when the appointment was mischievous, the principle of unfair labour practice also cannot apply.
Respondent No. 2 had not completed 240 days. When it is held that there was no unfair labour practice, not completion of 240 days will not give any right to respondent No. 2 to stake his claim.
Counsel for respondent No. 2 has relied on the cross-examination of M W-2 Sukhbir Singh, a copy of which has been produced at annexure R-2/1, who has stated in his cross-examination that the power of appointment and removal is with the Board of Directors. He has also stated that service of respondent No. 2 was terminated on 10.4.1992 and after 10.4.1992 the next meeting of Board of Directors was held on 17.7.1992 and in that meeting the agenda of removal of respondent No. 2 was not confirmed by the Board of Directors while all other items were confirmed. However, it can be seen that the agenda for terminating the service of respondent No. 2 was approved by the decision on 10.4.1992 in the meeting of the Board of Directors, copy annexure P/5 (supra).
In view of the above reasons, we find that it will not be possible to uphold the award of the Labour Court and it deserves to be set aside.
As a result, this petition is allowed and the award of the Labour Court is set aside.
Petition allowed.