The Ferozepur Central Cooperative Bank Limited vs The Presiding Officer and another

I.S. Tiwana, J.—In these 10 petitions Nos. 3324, 3291 to 3294, 3298 to 3300, 3325 and 3326 of 1984, the action of the Petitioner-Bank in terminating the service of the Respondent workmen has been set aside by the labour Court, Bhatinda, through different but similar awards on the ground that the said orders were the result of unfair labour practice resorted to by the Bank. The workmen are either Peons or Clerks. In order to appreciate the contention raised, the facts stated in the impugned award dated May 4, 1984 (CWP No. 3324 of 1984) may be taken as specimen

2 Jeet Singh was initially appointed as a Clerk for 89 days i.e from April 12 to July 10, 1980. Later after a break of one day, he was reappointed on July 12 for another 89 days i.e. upto October 8, 1980 Again after one day''s break, he was appointed is such on October 10 upto December 4, 1980. Thus he remained in the actual employment of the Bank for 232 days only. Before the labour Court, the plea taken by the employer-Bank was that the workman had been employed on purely temporary basis for a specific period and on account of the last mentioned termination of his services, he was not entitled to any relief. As a result of the trial that followed the labour Court, came to the conclusion that the action of the Bank had a taint of malice and unfair labour practice. The repeated orders of appointment and termination of the services of the workman were passed only with a view to by pass the provisions of Section 25-B of the Industrial Disputes Act, 1947 (for short, the Act). According to the Court, the whole purpose behind passing these orders was to deprive the workman of his rights under the Act by not allowing him to actually work for 240 days.

These awards of the Court are sought to be impugned by the Bank on two grounds: (i) there was not enough material before the Court to justify the conclusion that the action of the Bank in passing repeated orders of appointment and termination of the services of the workmen amounted to unfair labour practice and (ii) the workmen were debarred from seeking a reference u/s 10(1) of the Act in view of the fact that prior to the respective references they had filed civil suits in the Court of Sub Judge Ist Class, Ferozepore seeking declaration that the orders of termination of their services were bad in law and as a result thereof also to the grant of mandatory injunction restraining the Bank from terminating their services in future. Having heard the Learned Counsel for the parties at length, I find no scope for upsetting the impugned awards.

In order to repulse the star argument of Mr. Kuldip Singh, Learned Counsel for the Bank, that enough material was not before the Bank to justify the conclusion that the orders of termination of the services of the workmen were the result of an unfair labour practice and the facts in these case were materially different from the facts stated in Kapurthala Central Cooperative Bank Ltd Kapurthala v. The Presiding Officer Labour Court, Jullundur ILR (1984) P&H. 333, on which judgment the labour Court has strongly relied, I put a direct question to him as to why the Petitioner-Bank always thought it proper to appoint these workmen for short intervals of 89 days at a time and why the duration of their last appointment was kept a few days less than the total of 240 days as mentioned in Section 25.B of the Act. The only explanation the Learned Counsel could offer after consulting the authorities of the Bank is that in view of the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, the Bank could not appoint these workmen for a period more than 3 months without notifying the vacancies to the employment exchange concerned. I find that this explanation is totally hopeless. As per Section 3 clause ''d'' the Act itself does not apply to the vacancies of peons or unskilled workers (see 1971 (2) SLR. 420). Even if this explanation is to be accepted, for arguments sake, qua the workers who were employed as Clerks and who are not unskilled workers and to the vacancies of whom the provisions of 1959 Act would apply, then I am satisfied that the intention of the Bank in giving repeated appointments to these workmen for short durations of 89 days at a time or less was not only to by pass the provisions of the Act but also to by pass the provisions of 1939 Act. In a nutshell, the Bank can safely be accused of double guilt in by passing or violating the spirit of these two statutes. This more so in the light of the statement of Baldev Singh Manager of the Bank as M.W. 1 when he admitted in cross-examination in no uncertain terms that the posts (manned by these workmen) have not been abolished nor they have become surplus. He further confessed that "no regular employee has been appointed in place of the workmen." In the light of this, to my mind, the very circumstance that the Petitioner had been giving repeated appointments to the Respondent workmen for short durations and always for less than 90 days at a time is well indicative of the fact that the impugned termination orders were passed with a view to deprive the Petitioners of their rights under the Act or in violation of Section 25-B of the Act. It is the conceded position that in the case of all these workmen the terminations were effected when the duration of their respective total service in that year was less only by 5 to 10 days of the statutory period of 240 days specified in Section 25-B of the Act, after the completion of which period the Petitioner could not terminate the services of the workmen without complying with the various provisions of the statute including Section 25-F of the Act. It appears that with a view to forestall such undesirable practices, the National Commission on Labour recommended and the Parliament chose to specify the unfair labour practices vide Industrial Disputes (Amendment) Act, 1982. Through this amendment, Clause (ra) to Section 2 of the Act was added saying "unfair labour practice means any of the practices specified in the Fifth Schedule". As per entry 5 (b) of this Schedule "to discharge or dismiss a workman not in good faith but in the colourable exercise of employer''s rights" is an unfair labour practice. No doubt, it is true that prior to this amendment, no central law specified unfair labour practices but the numerous judicial decisions did enunciate and refer to such practices. Including the one of the type specified in the impugned award as unfair labour practices. I thus sustain the conclusion of the labour Court in this regard.

The other contention raised by Shri Kuldip Singh, as noticed above, has only to be stated to be rejected. According to him, the Respondent-workmen in the light of the observations made by the Full Bench of this Court in Sukhi Ram v. State of Haryana I.L.R, 1982 (2) P&H. 328, had the two alternative remedies of either approaching the Civil Court or the labour Court for their redress and they having chosen the first forum could not come to the labour Court on the dismissal of their suits. He, however, concedes that the said civil suits filed by the workmen had not been finally decided or in other words the rights of the parties had not been finally determined. It was only at the initial stages when the workmen failed to get the interim relief of a temporary injunction restraining the Bank from relieving them of their duties they got their suits dismissed for default. In the face of this accepted position, it is difficult to comprehend as to why the Respondent workmen were not well advised in coming to the labour Court which forum as per the observations of the learned Judges of the Full Bench was available to them. I find no plausibility in the submission of the Learned Counsel that once the suits had been filed by these workmen, they had opted their choice of forum for the redress of their grievances and they were debarred from seeking a reference to the labour Court. He is neither in a position to refer to any provision of law nor a precedent to sustain this proposition of his. I, thus reply the same.

In the absence of any other argument having been raised on behalf of the Petitioner. I find these to be totally meritless and dismiss the same with costs which I determine at Rs. 300/- in each case.