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Judgment
Bhargav D. Karia, J
This note for Speaking to Minutes is filed pointing out inadvertent error in the cause title whereby name of the respondent is reflected as "Jayaben Chandrakant Ambajiwala" instead of "Jaynaben Chandrakant Ambajiwala".
Note for speaking to minutes is allowed. Registry is directed to reflect the name of the respondent as "Jaynaben Chandrakant Ambajiwala" in the cause title.
The note for speaking to minutes stands disposed of accordingly.
By this petition under Article 227 of the Constitution of India, petitioner has prayed for the following reliefs :
"9(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 10/02/2007 passed by the Labour Court, Surat in T-Application No. 494/1994 and the impugned judgment dated 15/01/2018 passed by the Industrial Court, Surat in Appeal(IC) No.1/2008 at ANNEXURE - B and C respectively hereto;
(B) Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 10/12/2007 passed by the Labour Court, Surat in T-Application No.494/1994 and the impugned judgment dated 15/01/2018 passed by the Industrial Court, Surat in Appeal(IC) No.1/2008 at ANNEXURE - B and C respectively hereto;
(C) Ad-interim relief in terms of prayer
(B) above may kindly be granted in the interest of justice.
(D) Your Lordships may be pleased to grant such other and further relief and/or order in the interest of justice in favour of the petitioner."
The brief facts of the case are that the respondent applied for the post of Clerk with the petitioner-bank on 08.11.1990. The respondent was appointed in the Bombay Market Branch of the petitioner-bank as a trainee for the period from 08.11.1990 to 07.01.1991 on payment of monthly stipend.
The petitioner-bank thereafter, issued separate orders for extension of the training period after every two months and the service of the respondent was continued by issuing separate orders. Last appointment of the respondent was for one month beginning from 11.01.1994 to 10.02.1994. The respondent was never appointed for regular or permanent post but her services were continued on temporary basis. Thus, the engagement of the respondent was periodic and for fixed period under 24 separate orders in which she was terminated, on expiry of period mentioned in each orders and reappointed immediately. The petitioner did not renew the contract after 10.02.199 as there was no work to offer and also because the work of the respondent was not found satisfactory. It is therefore, the case of the petitioner that there was no continuity in service nor the service of the respondent was terminated or retrenched.
The respondent did not remain present with the petitioner-bank from 10.02.1994. The respondent by a letter dated 02.07.1994 requested for permission to resume the duty. However, by reply dated 12.07.1994, the petitioner refused such request. Therefore, the respondent issued a notice dated 26.07.1994 for getting the amount of salary and for reinstatement in the service. The said notice was replied by the petitioner-bank vide letter dated 15.09.1994 denying the request of the respondent to resume the duty on the ground that the service of the petitioner was not terminated or retrenched, but, it had come to an end on expiry of the period of appointment, which was mentioned in the order of temporary appointment.
Thereafter, the respondent approached the Labour Court for redressal of her grievance. The Labour Court issued show cause notice to the petitioner-Bank in respect of the T-Application No.494 of 1994 on 21.11.1994.
The petitioner-Bank filed its reply dated 20th April 1995 contending that there was no termination of service of the respondent but as the term expired, it was not extended.
The Labour Court after taking evidence of both the sides and after considering the documentary evidence on record, passed the order dated 10.02.2007 directing the petitioner to reinstate the respondent in the original post with continuity of service and 50% back-wages.
The petitioner-Bank challenged the order dated 10th February 2007, passed by the labour Court in T-Application No.494 of 1994, before the Industrial Court, Surat by filing Appeal (I.C.) No.1 of 2008.
The Reserve Bank of India passed an order dated 17.09.2008 against the petitioner-Bank under Section 35 A of the Banking Regulation Act, 1949 followed by order dated 15.10.2009 for cancellation of the license of the petitioner- bank to carry on the banking business in India under Section 22 of the Banking Regulation Act, 1949.
The Registrar of the Co-operative Societies, State of Gujarat by an order dated 22.10.2009 put the petitioner-Bank in liquidation under the provisions of the Gujarat Co-operative Societies Act, 1961.
The petitioner-Bank produced the aforesaid orders in the proceedings before the Industrial Court. However, the Industrial Court by judgment and order dated 15.01.2018, dismissed the appeal filed by the petitioner-Bank confirming the order passed by the Labour Court (Surat). The petitioner Bank has therefore preferred this petition challenging the impugned orders passed by the Labour Court as well as the Industrial Court.
The learned advocate Mr. Kamlesh B. Patel for the petitioner submitted that the Industrial Court without considering the orders passed by the Reserve Bank of India and the order of the Registrar of Co-operative Societies, to the effect that the petitioner-bank was put into liquidation as well as the license of banking was also cancelled, has dismissed the appeal. It was not possible for the petitioner-bank to reinstate the respondent with back-wages. It was submitted that the respondent was not appointed as a regular employee on permanent post with the Bank and therefore, the respondent is not entitled to get the benefit of Section 25 of the Industrial Disputes Act,1947 (hereinafter referred to as the "Act"). It was therefore submitted that in the facts of the case, the provisions of Section 2(oo)(bb) of the Industrial Disputes Act is applicable.
12.1. The learned advocate for the petitioner submitted that the appointment of the respondent was a contractual appointment specifying the duration of employment and therefore, the petitioner-Bank was entitled not to extend such employment at the conclusion of the period of temporary employment and the respondent would not have any claim for right to employment beyond the stipulated period and was not entitled to any relief.
12.2. It was further submitted that the respondent never raised any contention with regard to the exercise of powers by the petitioner as mala fide or colorable or that she was discriminated at any point of time.
12.3. It was further submitted that the petitioner has a prima facie case in its favour and has also the balance of convenience more so ever as the petitioner-Bank is in liquidation and therefore it was prayed that the impugned orders are required to be quashed and set aside.
On the other hand, learned advocate Mr. U.T. Mishra appearing for the respondent submitted that the Labour Court has passed the impugned order after taking into consideration the documentary and oral evidence on record. It was submitted that the Labour Court has come to the conclusion on the basis of the documentary evidence that there was no break in service of the respondent and the respondent was continued in service from 1990 to 1994. It was therefore contended that there is a breach of provisions of section 25 F of the Act and accordingly the services of the petitioner was illegally terminated without issuing any notice to pay retrenchment compensation. The respondent was therefore rightly reinstated in service with 50 % back-wages.
13.1. It was further submitted that the Industrial Court has also taken into consideration the documentary evidence on record to the effect that the petitioner bank issued periodical orders only to deprive the respondent of her legitimate rights under the law.
13.2. It was contended that the artificial break given by the petitioner Bank is nothing but unfair labour practice. It was therefore prayed that the petition requires to be rejected.
Having heard the learned advocates for the respective parties and having considered the material on record, it emerges that the Labour Court, in the impugned judgment and award, has considered the oral as well as documentary evidence in the form of various orders passed by the petitioner-bank extending the services of the respondent from time to time. The respondent has also filed an affidavit at Exh.33 before the labour court wherein it is categorically stated that the respondent was working on the post of clerk-cum-cashier from 08.11.1990. It was further stated in the affidavit that the post of the respondent was of the permanent nature and during the service period, no memo or charge-sheet was issued by the petitioner. It was also contended that the provident fund was also deducted for the year 1991-1992 and 1992-1993. In the year 1994, when the respondent had applied for leave, due to her marriage from 01.02.1994 to 10.02.1994, thereafter, she was not permitted to join her duty. In the cross-examination of the respondent, the averments made in the affidavit were reiterated. It was also stated in the cross-examination by the respondent that though during the period of artificial break also, the respondent discharged her duties.
The Labour Court has thereafter, considered the deposition of the witnesses of the petitioner Pratibhaben at Exh.88, who was manager in the petitioner-bank. She has stated in her affidavit that the respondent was working as a trainee with the petitioner Bank and her services were extended from time to time as per need of the petitioner-bank and orders were issued pursuant to the resolution passed by Board of Directors for continuation of the service of the respondent. It was also contended that name of the respondent is mentioned in the presence register maintained by the petitioner. In the cross-examination of the witness, it was stated by her that there was an agreement with the Union for deduction of PF sues from the salary of the staff of the petitioner-Bank.
The Labour Court after considering the averments made in the written statement filed by the petitioner-Bank as well as the various documentary evidence produced and exhibited during the course of trial,has rightly held that the submission of the petitioner-Bank cannot be accepted with regard to non-performing of service by the respondent after 10.02.1994 on the ground that the provision of section 2(oo) (bb) of the Act is not fulfilled and there is no compliance of provisions of Section 25 F of the Act.
The Labour Court has relied upon the decision of the Apex Court in the Case of Haryana State Electronics Development Corporation Ltd. Vs. V. Mamni reported in 2006 (101) FLR 1000, wherein the Apex Court has held that in case of artificial break provisions of section 2(oo) (bb) cannot be applied. The Labour Court has therefore, considering the facts of the case, came to the conclusion that though appointment of the respondent was on probation or on ad-hoc basis, services of the respondent was continued after giving artificial break of one or two days and there are 25 such orders issued during the service period of the respondent. It was also found as a matter of fact that at the relevant time,the bank was functioning in a normal routine manner and therefore, it is apparent that the orders of extending the services of the respondent with artificial break were only issued so as to avoid breach of any provisions of the Act. The Labour Court has therefore rightly come to the conclusion that issuance of such orders of extension of service with artificial break would amount to unfair labour practice. Similarly, the Industrial court also has rightly confirmed the judgment and award passed by the labour court by dismissing the appeal of the petitioner.
In view of the finding of facts arrived at by the Labour Court that there is unfair labour practice committed by the petitioner-Bank resulting into violation of provision of Section 25 F of the Act and confirmed by the Industrial court there is no infirmity in the impugned order. Moreover, the Labour Court has rightly considered the aspect of awarding back-wages and awarded 50% back-wages to the respondent-workman taking into consideration the weak financial position of the petitioner-bank.
The Industrial Tribunal has also re- appreciated the evidence in the appeal and has come to the conclusion that considering the orders of extension of service passed by the petitioner-Bank with artificial break clearly shows that such approach was adopted by the petitioner-bank so as to avoid the compliance of the provisions of the Industrial Disputes Act. The Industrial Tribunal has therefore rightly not interfered with the judgment and award passed by the Labour Court. The Industrial Tribunal has also considered the deposition of Pratibhaben at Exh.88 to uphold the judgment and award passed by the Labour Court.
In view of the aforesaid discussion, the contention raised on behalf of the petitioner that the license of the petitioner-Bank is cancelled by the Reserve Bank of India as well as the Registrar of the co-operative society would not make any difference or alter the situation as the action of the petitioner-Bank to terminate the services of the respondent is required to be taken into consideration as per situation prevailing in the year 1994 when the petitioner bank was functioning normally and regularly.
In view of the aforesaid concurrent findings of fact given by the Labour Court as well as the Industrial Tribunal to the effect that the respondent continuously worked with the petitioner-Bank from 1990 till 1994 i.e. more than 240 days in the previous year of the year in which her services are terminated resulted into unfair labour practice and violation of provision of section 25 F of the Act, no interference is called for in the impugned judgment and award passed by the Labour Court and confirmed by the Industrial Tribunal while exercising the powers under Articles 226 and 227 of the Constitution of India.
In the result, the petition being devoid of any merit, is liable to be dismissed and is accordingly dismissed with no order as to costs. Notice is discharged.