9911796707
TMI Blog1980 (9) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... S. 25F of the Industrial Disputes Act, 1947 and therefore invalid and inoperative. But, as the termination of their services was a consequence of their failure to pass the tests prescribed for permanent absorption into the service of the Bank and as it was thought their reinstatement would have the effect of equating them with workmen who had qualified for permanent absorption by passing the test, the Labour Court refused to give the workmen the relief of reinstatement in service with full back wages, but, instead, directed payment of compensation of six months salary to each of the workmen, in addition to the retrenchment compensation. The appellants claim that they should be awarded the relief of reinstatement with full back wages as was done in the case of Santosh Gupta v. State Bank of Patiala (supra) and other earlier cases decided by this Court. On the other hand the learned counsel for the employer contended that noncompliance with the requirements of S. 25F of the Industrial Disputes Act did not render the termination of the service of a workman ab initio void but only made it invalid and inoperative and that the Court, when setting aside the termination of the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This Court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide :The Punjab National Bank Ltd. v. The All- India Punjab National Bank Employees Federation [1960] 1 SCR 806): and National Transport and General Co. Ltd. V. The Workmen (Civil Appeal No. 312 of 1956 decided on January 22, 1957). In State Bank of India v. Shri N. Sundara Money, a Division Bench of this Court consisting of Chandrachud, Krishna Iyer and Gupta JJ held that a certain order of retrenchment was in violation of the provisions of S. 25F and was, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... look at the statutory provisions. S. 25-F, then and now, provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until certain conditions are fulfilled. S. 25-B s marginal title is Definition of continuous Service . To the extent that it is relevant S. 25-B(2) as it now reads is as follows: Where a workman is not in continuous service..... .. for a period of one year or six months, he shall be deemed to be in continuous service under an employer................... (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than......... (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days in any other case; (b).............. Explanation........... The provision appears to be plain enough. Section 25-F requires that a workman should be in continuous service for not less than one year under an employer befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kman who has been in continuous service for not less than one year under an employer is entitled to its benefit. Continuous Service is defined in s. 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. What is meant by one year of continuous service has been defined in s. 25B. Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less 240 days shall be deemed to have completed service in the industry.... ... .... The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of s. 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. No question arises before us whether the termination of the services of the appellants amounts to retrenchment within the meaning of s. 2(oo) of the Act. The respondent Bank of India has apparently accepted the finding of the Industrial Tribunal-cum-Labour Court that the termination amounts to retrenchment. It has not preferred any appeal. I mention this only because I should not be taken to have agreed with the interpretation of s. 2(oo) rendered in Santosh Gupta v. State Bank of Patiala. Proceeding on the footing mentioned above, my learned brother Chinnappa Reddy has, I say with respect, rightly concluded that on the facts and circumstances before us the appellants should be reinstated with full back wages subject to the proviso that the salary on reinstatement will be the salary drawn by the respective appellants on the date of their retrenchment, qualified by the impact of any revisional scale meanwhile, and subject to the further proviso that the period intervening between the date of retrenchment and the date of reinstatement will be omitted from account in the determination of the seniority of these appellants among temporary employees. Ordinarily, a workman ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
