AI Structured Summary
Not yet generated for this judgment
Judgment
Ramendra Jain, J.—The workman has preferred the present appeal against the judgment dated 1.11.2012 passed by the learned single Judge in CWP No. 10923 of 2010. The case of the appellant-workman is that despite working for 180 days during the calendar years from October 1989 to March 1991, he was not given the benefit of policy dated 1.5.1991 by the respondent-bank which envisages that the service of those persons who had completed 30 days aggregate temporary service in any calendar year shall be regularised". He had applied for regularisation of his service under the said Policy, however, he was declined the benefit of aforesaid Policy without disclosing any reason and calling him for interview. The workman by serving demand notice raised an industrial dispute. Government of India while exercising its power under Section 10 of the Industrial Disputes Act, 1947, (for short, ''the Act''), referred the following industrial dispute for adjudication to the Central Government Industrial Tribunal-cum-Labour Court-1, Chandigarh (for short, ''the Labour Court'') :
"Whether the action of the management of Zonal Office, State Bank of India, Haryana, Chandigarh in terminating the services of Shri Karam Chand, daily rated messenger in the Indri Branch is justified? If not, what relief he is entitled?."
The respondent-Bank filed objection that the workman had not completed 240 days of work and, thus, was not entitled to any protection under the Act. The Labour Court was not competent to go beyond the reference relating to the "nature of termination".
Despite raising the above specific objection by the respondent-Bank before the Labour Court about its jurisdiction, it answered the reference in favour of the appellant-workman relying upon the extended policy dated 2.8.1991, whereby the services of workman had to be regularised, in case he had completed 30 days of work in a calendar year, vide award dated 9.2.2010.
Civil Writ petition No. 10923 of 2012 filed by the respondent-Bank against the above award of the Labour Court was accepted by the learned Single Judge vide impugned judgment dated 1.11.2012 with the specific finding that the Labour Court had acted beyond its jurisdiction and the impugned award was passed beyond its terms of reference. The learned Single Judge also held that since the dispute was raised belatedly by the appellant-workman, therefore, he was not entitled to any relief.
Learned Counsel for the appellant argued that the learned single judge has erred in setting aside the award of the Labour Court dated 9.2.2010. The workman had completed c180 days of work during a period of twelve months immediately preceding the date of termination of his services and thus, was entitled to regularisation of his service in view of Policy dated 1.5.1991 in which cut off date was extended upto 2.8.1991. The appellant had applied for its permanent absorption thorough Indri Branch of the respondent bank along with his experience certificate, but his case was considered in an arbitrary and illegal manner. Step motherly treatment was given to him as the other similarly situated employees, like, the appellant were absorbed permanently into service. The learned Single Judge has wrongly observed that the appellant had filed his reference belatedly, because the same was filed within six months of rejection of his final representation dated 17.4.1997 mark B. In fact, the appellant had served notice dated 19.9.1997, but the appropriate Government did not take any decision for two years, forcing him to file writ petition bearing CWP No. 18137 of 1999. The same was disposed of vide order dated 24.12.1999 directing the appropriate Government to take decision within two months. Thereafter, the appropriate Government declined his reference on merits vide order dated 17.11.1999, again forcing the appellant to file another CWP No. 12178 of 2000. In the aforesaid writ petition, this Court directed the appropriate Government to refer the dispute of adjudication to Labour Court. In pursuance thereof, above wrong reference was made to the Labour Court in routine, without application of mind, though the reference should have been "whether the appellant was entitled to be appointed on the regular post of Messenger in view of Policy of respondent-Bank. The Labour Court, considering all the factors of the dispute in between the parties, on the basis of justice, equity and good conscience had rightly answered the reference in favour of the appellant-workman.
The learned Single Judge had erred in not appreciating the admission of the respondent Bank that the appellant was not considered for absorption, inadvertently in terms of advertisement dated 2.8.1991 and was, therefore, not called for the interview in the year 1992, despite the fact that the same was the best piece of evidence. Since the claim of the appellant was admitted by the respondent bank, therefore, nothing remained pending for adjudication before the learned Single judge.
On the other hand, learned counsel for the respondent Bank pleaded the legality and validity of the impugned judgment.
We have given our thoughtful consideration to the arguments of learned counsel for the parties and found no merit in the appeal for the reasons to follow.
One of the major grouse of the appellant is that he was discriminated by not giving permanent employment and regularisation in service at par with the other similarly situated persons who were absorbed permanently by the respondent Bank. However, generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it cannot be made a basis for its repetition. Reference can be had to Chandigarh Administration and another Vs. Jagjit Singh and another, .
In view of the settled proposition of law, the respondent Bank cannot be directed to absorb the appellant workman permanently into service by treating his case at par with the other similar situated persons, like him who have been absorbed permanently. Even otherwise, the appellant workman has not brought any such evidence on the record.
The contention of learned counsel for the appellant that he has not raised the demand belatedly or that the findings of the learned Single Judge in this respect are illegal, has also no force, because any representation does not extend the period of limitation. In other words, it does not extend the time limit for a particular action. As per own case of the appellant-workman, he had worked for 180 days on daily wages as Messenger and was terminated in the year 1991. Admittedly, he raised an industrial dispute on 19.9.1997 after about 6-1/2 years. His submission that his last representation was finally rejected on 17.4.1997 and, thus, he had filed the demand notice dated 19.9.1997 Ex. P1 within six months, is completely devoid of any merit, because as discussed above, he representation does not extend the period of limitation. Hence, we are in full agreement with the learned Single Judge rejecting the above contention of appellant-workman.
Learned Single Judge has rightly observed that the Labour Court has acted beyond its jurisdiction, because the reference before it referred by the appropriate Government was that "whether the action of the Management of Zonal Office, State Bank of India, Haryana, Chandigarh in terminating the service of Shri Karam Chand, daily rated messenger in the Indri Branch is justified? If not, what relief he is entitled?" However, the learned Labour court instead of deciding the aforesaid question, directed the respondent Bank to absorb the appellant in service in terms of above policy. Hence, it is apparent that the Labour Court has acted beyond its jurisdiction illegally.
Learned counsel for the appellant has laid much stress upon circular dated 1.5.1991, whereby service of a workman, who had completed 30 days aggregate temporary service in any calendar year had to be regularised or to be absorbed permanently. For ready reference, the relevant portion of the said circular is reproduced as under :-
"Eligible category of temporary employees :-
Daily wagers, who have served the Bank as Messengers, Farrashes, Cash Collies, Sweepers, Bank Guards, etc., and who were paid daily wages on mutually agreed basis and have put in minimum of 240 days temporary service in any continuous block of 12 calendar months or less or 270 days aggregate service in any continuous block of 36 calendar months or 30 days aggregate temporary service in any calendar year or a minimum of 70 days aggregate temporary service in any block (sic.,) 1.7.1975 and upto 31.7.1988 at any one or more Branches/Offices under Module (Regional Office) as existing/defined as on 31.7.1988."
From the perusal of the above circular, it is evident that the daily wagers who were in service of the respondent bank as Messengers, Farrashes, Cash Coolies, Sweepers, Bank Guards etc. and were paid daily wagers on mutually agreed basis and had put in minimum of "240 days'' temporary service" in any continuous block of 12 calendar months or less or 270 days'' aggregate service in any continuous block of 3.6 calendar months were to be absorbed in service. It does not anywhere speak that the daily wagers who had completed "30 days aggregate temporary service" in any calendar year had to be absorbed permanently in to service, rather any daily wager had to complete minimum 240 days of temporary service in any continuous block of 12 calendar months. The requirement of completion of 30 days aggregate temporary service in any calendar year for absorption in service was for the persons, who were in "temporary service" and not as a "daily wager". Since as per own case, the appellant-workman was a daily wager, so it was incumbent upon him to complete 240 days "minimum temporary service" in any continuous block of 12 calendar months. However, as per his own averments he had only completed 180 days. Thus, the Labour Court by mis-interpreting the aforesaid circular had wrongly and illegally directed the management to absorb.
Sine the award was illegal, therefore, the same has rightly been set aside by the learned Single Judge.
In view of the aforesaid detailed discussion, we find no merit in the present appeal and the same is dismissed. However, considering the case of the appellant sympathetically, that he had approached this court twice by filing of CWP No. 18137 of 1999 and CWP No. 12178 of 2000 for getting his demand notice referred to the Labour Court and then contested the CWP No. 10923 of 2012 and thereafter filed the present appeal, we award him compensation/costs of Rs. 1 lac towards litigation expenses keeping in view his poor condition.