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PETITIONER: H.D. SINGH

       Vs.

RESPONDENT: RESERVE BANK OF INDIA & ORS.

DATE OF JUDGMENT10/09/1985

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1986 AIR  132            1985 SCR  Supl. (2) 842  1985 SCC  (4) 201        1985 SCALE  (2)607

ACT:      Industrial Disputes  Act 1947,  sections 2  (oo), 25 F, Schedule V, Item 10.      Reserve Bank  of India  - Employment of Tikka Mazdoor - Persons helping  examiner of  coins and  notes - Daily rated workers -  Name of worker struck off the rolls after passing matriculation   examination    -    Whether    amounts    to ’retrenchment’ -  Confidential circular  of Bank instructing officers to  give work  on rotational  basis  -  Whether  an ’unfair labour practice’.

HEADNOTE:      The appellant  was a tikka mazdoor-person who helps the Examiners of  Coins and  notes in the Reserve Bank of India, the 1st  Respondent. He  was selected in 1974 on daily wages basis and  he had  to report  to the  bank regularly  in the morning to ascertain whether he could get work every-day. On days when  no work  was given he had to wait till noon to be told  by   the  authorities   concerned  that  no  work  was available. Thus, he had work only for four days in 1974, and one hundred and fifty four days in 1975, and one hundred and five  days  in  1976.  At  the  time  he  was  selected  for employment,  he   was  not  a  matriculate.  He  passed  the matriculate examination in 1975. His name was struck off the list of  Tikka Mazdoors  as the confidential circular issued by  the   bank  indicated   that  persons   who  passed  the matriculation examination could not be retained in the list.      As the appellant was not given any work after July 1976 and as  there were  no written order terminating his service and  as   attempts  to   get  his  grievances  redressed  by correspondence having  failed he moved for conciliation. The Assistant Labour  Commissioner  though  impressed  with  the genuineness  of  the  claim  of  the  appellant,  could  not persuade  the   bank.  Thereupon,   the  Central  Government referred  the   dispute  for  adjudication  to  the  Central Government Industrial Tribunal.      The  appellant   in  his  claim  statement  before  the Tribunal, pleaded  that he  had presented  himself for  duty daily but was not 843 offered jobs  on the  days when  he reported  for  duty  for reasons best  known to  the bank, that he was employed for 4

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days in 1974, 154 days in 1975 and 105 days in 1976, that he was not  told at  the time when he accepted the job that his name would  be struck  off from  the rolls  if he passed the matriculate examination  and that he had worked continuously for 240  days if  the Sundays  and Holidays  were taken into account, and that the action of the bank in striking out his name from the list amounted to retrenchment.      The claim  of the  appellant was  resisted by  the Bank contending that  the reference was had since the dispute was not  sponsored  by  any  representative  trade  union,  that Section 2-A  of the  Industrial Disputes  Act 1947  was  not attracted, and  also that the dispute in question was not an industrial dispute,  that the appellant failed to inform the bank that  he had passed the matriculation examination after getting selected  and that he had not worked for 240 days in any year.      The Tribunal  held that the action of the Reserve Bank, in not giving regular appointment to the appellant was legal and proper  and that  his name  could be struck off from the list of  approved Tikka  Mazdoors in  terms of  a proper and justifiable policy followed by the management of the Bank;      Allowing the appeal, ^      HELD: 1.  Striking off  the name  of the  appellant  is clearly termination  of his service and the dispute squarely comes within  Section 2A  of the  Industrial  Disputes  Act, 1947.  The   Tribunal  grossly   erred  in   upholding   the preliminary objection raised by the Bank. [852 C]      2. Striking off the name of a workman from the rolls by the employer  amounts to  ’termination of  service’ and such termination is  ’retrenchment’ within  the meaning  of  Sec. 2(oo) of  the Industrial  Disputes Act,  1947 if effected in violation of  the mandatory provision contained in Sec. 25-F and in invalid. [850 F, 853 F-G]      Delhi Cloth  &  General  Mills  Ltd.  v.  Shambhu  Nath Mukherjee &  Ors. [1978]  1 S.C.R. 591., State Bank of India v. Shri N. Sundra Money, [1976] 3 S.C.R. 160., referred to.      In the  instant case,  the pleadings, documents and the confidential circular  indicate that the Bank was determined to adopt methods to terminate the services of employees like the 844 appellant. The  appellant was  not told  that  he  would  be struck off  the rolls if he passed matriculation. He was not given any order in writing either refusing work or informing him that  his name  would  be  struck  off  the  rolls.  The appellant’s name  had been  struck off  the list contrary to the mandate contained in Section 25F. [850 E,G]      3. The  5th Schedule  to the  Industrial  Disputes  Act contains a  list of  unfair labour  practices as  defined in sec. 2(ra),  and to  employ workmen  as  ’badlis  casual  or temporaries and to continue them as such for years, with the object of  depriving them  of the  statue and  privileges of permanent workmen’  is one  of them as indicated in Item 10. [852 F-G]      4. The  Bank has  deliberately  indulged  in  unhealthy labour practice  by rotating employees like the appellant to deny  them   benefits  under   the  Industrial  Law.  It  is disturbing to find that the appellant was denied job because he had become better qualified. [853 B-C]      In the instant case, the confidential circular directed the officers  that workmen  like the appellant should not be engaged continuously  but should as far possible, be offered work on  rotation basis and the case that the appellant is a ’badli’ worker, have to be characterised as an unfair labour

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practice.[852 H]      5. Industrial  adjudication in  bona fide  claims  have been dragged  on by employers for years by raising technical and hyper  technical pleas. It would always be desirable for employers to  meet the  case of  the employees  squarely  on merits and  get them  adjudicated quickly. It is too late in the day  for this  Court to  alert the  employers that their attempt should be to evolve a contended labour. [853 D-E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6417 of 1983.      From the Award dated the 5th April, 1983 of the Central Government Industrial  Tribunal, New Delhi in I.D. No. 54 of 1979.      O.P. Malhotra,  N.S. Das  Bahl, Pawan  K. Bahl and Miss Indu Malhotra for the Appellant.      Dr. Y.S. Chitale and H.S. Parthar for the respondents.      The Judgment of the Court was delivered by 845      KHALID, J.  The appellant  was a Tikka Mazdoor with the first respondent, the Reserve Bank of India. A Tikka mazdoor is a  person who  helps the Examiners of Coins/notes. He was so selected  on daily  wages of  Rs. 3  as  per  appointment letter dated 30/4/1974. As per the appointment order he used to report  to the  bank regularly  at 9.30 A.M. to ascertain whether he could get work on every-day. On days when no work was given  to him he had to wait till noon to be told by the authorities concerned  that no  work was  available on  such days. Thus he was given work only for four days in 1974, One Hundred and Fifty Four days in 1975 and One Hundred and Five days in 1976. At the time he was selected for employment, he was not a matriculate. He passed the matriculate examination in 1975.  At the  time he  was selected he was not told that his name  would be  struck off the list of Tikka Mazdoors if he passed  the matriculate  examination.  On  23/7/1976,  he received a letter from the bank asking him to state within a week (latest  by  29/7/1976)  as  to  what  his  educational qualification was.  He was also informed that his name would be  struck  off  since  he  had  concealed  his  educational qualification and  that his  services  would  be  terminated without any  notice  and  compensation  from  the  bank.  It appears that Tikka Mazdoors are placed in List II maintained by the  bank. A  confidential circular  seems to  have  been issued  by   the  bank  on  27/6/1976  to  the  effect  that matriculates  would  not  be  retained  in  this  list.  The appellant sent a reply stating that he was not a matriculate in 1974  when  he  was  selected  and  that  he  passed  the examination only  in 1975.  He enclosed  the certificate and the marks-sheet to prove that he passed the examination only subsequent to his selection as Tikka Mazdoor.      2. The  appellant was  not given  any work  after  July 1976. There  is no  written order  terminating his services. The representative  of the  first respondent admitted, while he was  cross-examined, that  no formal order intimating the appellant that  his name was struck off the list was issued. His father  was also  an employee  of the bank. He knew that the appellant’s  name had  been removed permanently from the list of  Tikka Mazdoors.  Thereupon, both his father and the appellant made  representations  to  the  bank  against  the action taken.  No reply  was given to these representations. When  his   attempt  to  get  his  grievances  redressed  by correspondence  failed,   he  moved  for  conciliation.  The

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Assistant Labour  Commissioner appeared to be impressed with the genuineness of his case, but his persuation did not move the bank  in his  favour. Thereupon,  the Central Government made  a  reference  by  Notification  dated  19/9/1979,  for adjudication of  the following dispute to Central Government Industrial Tribunal, New Delhi. 846           "Whether the  action of  the Management of Reserve           Bank of India, Kanpur, in striking off the name of           Shri H.D.  Singh from  the list  of approved Tikka           Mazdoors from  July, 1976, is Justified and legal?           If not,  to what relief the workman in question is           entitled?"      3. The  appellant in  his claim  statement  pleaded  as follows:      (i)  He had  presented himself  for duty daily, but was           not offered  jobs on the days when he reported for           duty for reasons best known to the bank;      (ii) He was  employed only  for four  days in  the year           1974, 154 days in 1975 and 105 days in 1976;       (iii) He was not told at the time when he accepted the           job that  his name  would be  struck off  from the           rolls if he passed the matriculate examination.      (iv) He pleaded  mala fides,  in that persons similarly           placed like  him who had become matriculates after           selection had been retained in service and that he           alone was discriminated against;      (v)  He stated  that acquisition  of high qualification           should never  have been  used against  him to deny           him his job;      (vi) He had  worked continuously  for 240  days if  the           Sundays and holidays are taken into account;       (vii) The  action of the bank in striking out his name           from the list amounted to retrenchment.      4. The  claim of the appellant was resisted by the bank raising  both   preliminary  legal  objections  and  factual objections. It  was contended  that the  reference  was  bad since the  dispute was  not sponsored  by any representative trade union,  that Section  2-A was  not attracted  and also that the  dispute in question was not an industrial dispute. On merits,  the claim  was resisted  with the  plea that the appellant failed  to inform  the bank  that  he  had  passed matriculation  examination   after  getting   selected   and secondly that he had not worked for 240 days in any year.      These rival contentions were considered by the Tribunal and it was held as follows: 847           "....... The  action of the Reserve Bank of India,           Kanpur, in  not giving regular appointment to Shri           H.D.Singh is  held to  be legal and proper and his           name could be struck off from the list of approved           Tikka  Mazdoors   in  terms   of  a   proper   and           justifiable policy  followed by  the management of           the Reserve  Bank of India, Kanpur. Mr. H.D. Singh           is held not entitled to any relief." It is  against this  award that the appellant has come up to this Court by special leave.      5. Before  considering the  questions involved  in this appeal, it  would be  appropriate to  extract  in  full  the Memorandum issued  by the  Reserve Bank  of  India,  Kanpur, which lays  down the  terms and  conditions of  service of a Tikka Mazdoor.                      M E M O R A N D U M              No. 6602 Dated: 30th April, 1974. From: Reserve Bank of India       To: Shri Harindra dhwaj

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     Kanpur                          Singh C/o Shri B.D.                                          Singh, C/N Examiner Gr.                                       II., R.B.I Kanpur.      With reference  to his  application dated 31/7/73, Shri Harendra Dhwaj  Singh is  informed that the Bank is prepared to offer  him the  post of  a Tikka Mazdoor on the following terms and conditions:      (i)  He should  call at  the office of the bank by 9.30           A.M. on  every working day to ascertain whether he           would be  offered employment  on that  day and  he           should leave  only if  he is  advised that he will           not be offered any employment on that day.      (ii) For each  day he  is employed by the bank, he will           be paid  a consolidated  daily wage  of Rs.  3 and           will not  be entitled  to any  allowance or  other           remuneration.      (iii) His hours of duty, if employed, on any day would,           for the  present, be  from 9.30  A.M. to 5.15 P.M.           which hours  of duty  are  liable  to  be  altered           without notice. 848      (iv) In case he does not present himself for employment           on five  consequtive working  days  without  first           having obtained  prior permission  his appointment           will  be  liable  to  be  terminated  without  any           notice.      (v)  His appointment  is subject  to  his  being  found           medically fit  for service  in  the  bank  by  the           bank’s medical officer.      (vi) He will  be required  to comply  with and obey all           orders and  directions which may from time to time           be given  to him  by any  person or  persons under           whose jurisdiction,  superintendence or control he           may for the time being be placed.     (vii) He should maintain the strictest secrecy regarding           the bank’s affairs and serve the bank honestly and           loyally.     (viii)  He should  produce at  the time of reporting for           duty satisfactory  evidence of  having obtained  a           proper release  from his  present appointment,  if           any.      (ix) He should  produce at  the time  of reporting  for           duty a  letter of  introduction from a respectable           person.      (x)  He should  produce at  the time  of reporting  for           duty sufficient  proof of  his age and educational           qualifications  and   also  bring   with  him  the           original  certificates.   Copies  of   which  were           attached to his application.      (xi) The appointment  will be subject to his furnishing           such information as the bank may require from time           to  time   and  subject   to  his   service  being           acceptable  in   the  light   of  the  information           furnished. (xii)     If any declaration, statement or information given           by him  is at  any  time  found  to  be  false  or           incorrect  or   if  any   material  particular  is           omitted, his  appointment will  be  liable  to  be           terminated forthwith without any notice.    (xiii) The present appointment will not confer on him any           right for  a temporary  post or  permanent post in           the bank’s service. 849 2. If he is agreeable to opt for casual appointment on daily

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wages on the above terms and conditions, he should report to the Manager’s Section on or before the 4th May, 1974.                                            Sd/- B.N. Rohatgi                                                  P. Manager.      A mere  reading of  this Memorandum  shows how rigorous and one-sided  the conditions  are for  a job that fetches a ’handsome’ sum  of Rs.  3 per day. It is useful to note that this Memorandum  does not  contain any  terms that  a  Tikka Mazdoor will  be struck  off the  rolls once  he passed  the matriculate examination. 6.  During  the  course  of  the  submissions  made  by  the appellant’s  Counsel,   he  referred   to   a   confidential communication issued  by the  Bank to  its officers  to deal with Tikka  Mazdoor. We  think to  it appropriate to extract the relevant  portion therefrom,  so that  the facts  of the case can be understood in the proper setting.                    RESERVE BANK OF INDIA                        CENTRAL OFFICE           Department of Administration & Personnel                      Bombay - 400 001. Ref. No. 4953/23H/75-76.                    26th June, 1976. Confidential.      The Manager,      Reserve Bank of India,      Ahmedabad/Bhubaneshwar/Bangalore/      Bombay/Vyculla/Bombay-8/Calcutta/      Gauhati/Hyderabad/Jaipur/Kanpur/      Madras/Nagpur/New Delhi/Patna. Dear Sir,      Recruitment-Class IV-Mazdoors and      Tikka Mazdoors.      ...........      ........... 850 "5. As  regards Tikka  Mazdoors other than those referred to in paragraph 4 above, born on the lapsed list i.e. those who have not  worked at  all or  who have  worked for  a  lesser period than  240 days  during  the  preceeding  12  calender months,  the   non-matriculates  among   them  only  may  be considered  for   inclusion  in   List  II   allowing   them appropriate relaxation in age having regard to the period of service, if  any, rendered by them and their past record, if their  number   is  not  considered  adequate  to  meet  the requirements of your office, additional fresh candidates may be wait-listed  in the  usual manner.  In order  to keep the candidates so wait-listed outside the scope of Section 2(oo) of the Industrial Disputes Act, they should not hereafter be engaged continuously  but should,  as far  as  possible,  be offered work  on  a  rotation  basis.  The  latest  position regarding their  qualification and when any of them is found to have  passed the matriculation or equivalent examination, his name should be struck off the list. 6. Please  let us know in due course the action taken by you in the matter along with particulars of Tikka Mazdoors wait- listed in Lists I and II." 7. It  is clear  from the  pleadings and  from the documents noted above  how the  respondent-bank managed  to get rid of the appellant.  The disclosures  made  in  the  confidential circular make  our task  easy in  holding that  the Bank was determined to adopt methods to terminate the services of the employees like  the appellant.  The appellant  was not  told that he  would be  struck off  the rolls  if he  passed  the matriculation. He  was not given any order in writing either refusing work or informing him that his name would be struck off the  rolls. The  case of  the bank is that he was orally

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informed that his name has been struck off. Striking off the name of  a workman from the rolls by the employer amounts to ’termination of service and such termination is retrenchment within the  meaning of  Section 2(oo) of the Act if effected in violation of the mandatory provision contained in Section 25-F, and is invalid. In this case the facts need only to be stated to  hold that  the petitioner’s  name had been struck off the  list contrary  to the  mandate contained in Section 25-F. This  Court has  held in  Delhi Cloth  & General Mills Ltd. v.  Shambhu Nath  Mukherjee & Ors. [1978] 1 S.C.R. 591, that striking  off the name from the rolls by the management is retrenchment  within the  meaning of Section 2(oo) of the Act. While  reading Section  25-F, 25-B  and Section  2(oo), Krishna Iyer,  J. in  State Bank of India v. Shri N. Sundara Money, [1976] 3 S.C.R. 160, has observed that the words ’for any reason whatsoever’ occurring in 851 Section 2(oo)  are very  wide and  almost  admitting  of  no exception. It was made clear that a comprehensive definition has to be effectuated to protect the weak against the strong in construing  the ambit  of the  words contained in Section 2(oo). Pithily  he observed  that ’without  further ado,  we reach the  conclusion that  if the  workman swims  into  the harbour of  Section 25-F,  he cannot  be retrenched  without payment, at  the time of retrenchment, compensation computed as prescribed therein read with Sec. 25-B(2)." 8. That  takes us  to the question whether the appellant had qualified himself  to sustain  his claim  to the benefits of Section 25-F.  The appellant,  as we will presently see, has given the  number of  days on  which he worked, in his claim statement. The  first respondent-bank arranged posting Tikka Mazdoors, like  the appellant,  in such  a manner  that they were denied  the benefits  of the  Industrial Disputes  Act. Since the  first respondent-bank  disputed the fact that the appellant had  worked  for  sufficient  number  of  days  to entitle him  to claim  remedies under  the Act,  we think it necessary to refer to the facts as disclosed in the records. The Advocate  who appeared  for  the  appellant  before  the Tribunal, Shri  R.N. Srivastava,  has failed an affidavit in this Court  stating that  he  had  filed  written  arguments before the  Tribunal explaining the mistake committed by the Bank in  the computation made by it of the number of working days of  the appellant. From this affidavit, it is seen that the first  respondent-bank  put  forward  a  case  that  the attendance register  for the  month of  July, 1976  had been destroyed and that Sundays and other holidays were not taken into account  in computing  the  number  of  days  that  the appellant worked.  We have  also a  supplementary  affidavit filed by  the appellant  himself which  throws further light about the  number of days that he worked. In this affidavit, it is  seen that he worked for 4 days in 1974, 154 days from January 1975 to December 1975 and 105 days from January 1976 to July  1976. The appellant was denied work from July 1976. His affidavit  shows that  he had  worked for  202 days from July 1975  to July  1976. According  to him,  if we  add  52 Sundays and  17 holidays,  the total number of days on which he worked  comes to 271 days. The appellant charged the Bank with having  tampered with  the records.  To contradict  the appellant’s case,  the first respondent bank did not produce its records. The appellant wanted the relevant records to be filed but  they were  not produced.  Grounds 18 to 20 of the special leave  petition make  mention of  this plea  of  the appellant. These  grounds are  met by  the first  respondent bank in their counter affidavit filed in this Court by 852

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stating that  "when the  matter was  before  the  Industrial Tribunal, the  registers in  question were  filed in another case before  the Industrial  Tribunal-cum-Labour  Court  and produced in  that Court.  However, I  submit  that  now  the attendance register  has  been  destroyed  but  the  payment registers are available with the respondent-bank as proof of the number  of days  on which  the appellant worked." In the absence of any evidence to the contrary, we have necessarily to draw  the inference that the appellant’s case that he had worked for more than 240 days from July, 1975 to July, 1976, is true.      Striking off  the name  of the  appellant  under  these circumstances is  clearly termination of his service and the dispute in this case therefore squarely comes within Section 2-A of  the Industrial  Disputes Act.  The Tribunal  grossly erred in  upholding the  preliminary objection raised by the bank that the dispute did not come within Section 2-A. 9. Not  being satisfied  with  the  pleas  noted  above  the respondent-bank had  also a case that the appellant was only a badli  workman who  could be deemed to have worked only on days when  the permanent  workman  or  probationer  was  not employed.  The  bank  did  not  make  available  before  the Tribunal any  documentary evidence  to show  as to  how  the appellant could be treated as a badli worker and as to whose place he occupied during the days he worked.      The confidential  circular directing  the officers that workmen  like   the  appellant   should   not   be   engaged continuously but  should as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker, have  to be characterised as unfair labour practice. The 5th  Schedule to  the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:                "To employ  workmen as  ’badlis’, casuals  or           temporaries and  to  continue  them  as  such  for           years, with  the object  of depriving  them of the           status and privileges of permanent workmen." We have  no option  but to  observe that  the bank,  in this case, has  indulged in  methods amounting  to unfair  labour practice. The  plea that  the appellant  was a  badli worker also has to fail. 10. We  thought it necessary to refer to the factual details in the  case only to show our concern at the manner in which the 853 employer in this case, the Reserve Bank of India, who should set  a   model  for  other  employers  being  a  prestigious institution, behaved  towards its  employees. It  must  have been his  helpless condition  and abject poverty that forced the appellant  to accept  a job  on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that  the Bank  has deliberately  indulged in  unhealthy labour practice  by rotating employees like the appellant to deny  them   benefits  under  the  Industrial  Law.  It  has disturbed us  to find  that the  appellant  was  denied  job because he  had become better qualified. Perhaps the Reserve Bank of  India and  its officers  are not aware of the grave unemployment problem  facing the  youth of  this country and also not  aware of  the fact  that graduates,  both boys and girls, sweep  our roads  and post-graduates  in hundreds, if not in  thousands, apply for the posts of peons. It has been our sad  experience to  find employers  trying to stifle the efforts of  employees in  their  legitimate  claims  seeking benefits under  the Industrial  Law by  tiring them  out  in adjudication  proceedings   raising  technical   and   hyper

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technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It  would always  be desirable  for employers to meet the case  of the  employees squarely  on merits and get them adjudicated quickly. This would help industrial peace. It is too late  in the  day for  this Court to alert the employers that their  attempt should  be to evolve a contented labour. We do  not forget  at the  same time  the fact  that  it  is necessary for  the labour  also to  reciprocate  to  prevent industrial unrest.  In this  case,  for  example,  the  Bank should have  treated the appellant as a regular hand in List II. Instead,  the Bank  has,  by  adopting  dubious  methods invited from  us,  remarks  which  we  would  have  normally avoided. 11. We  hold that  the appellant  is entitled to succeed. We set aside the order of the Industrial Tribunal and hold that the striking  off the  name of  the appellant  from List  II amounted to  retrenchment under Section 2(oo) of the Act and was in  violation of  Section  25-F.  We  direct  the  first respondent-bank  to   enlist  the  appellant  as  a  regular employee, as Tikka Mazdoor, to reinstate him and pay him his back wages  up-to-date. The  appeal is  allowed  with  costs quantified at Rs. 3,000. N.V.K.    Appeal allowed. 854