Daily Wager Employed By State Without Issuance Of Advertisement Or Selection Process Isn't Entitled To Claim Protection From Retrenchment: Gauhati High Court
The Gauhati High Court single bench of Justice Michael Zothankhuma dismissed a writ petition noting that neither an advertisement was issued, nor any selection process was followed before engaging the employee as an occasional daily wager. It further held that State Bank of India (SBI) is State under Article 12 of the Constitution. Therefore, it would have to make appointments...
The Gauhati High Court single bench of Justice Michael Zothankhuma dismissed a writ petition noting that neither an advertisement was issued, nor any selection process was followed before engaging the employee as an occasional daily wager. It further held that State Bank of India (SBI) is State under Article 12 of the Constitution. Therefore, it would have to make appointments through advertisement and a proper selection process, in terms of Articles 14 and 16 of the Constitution.
Since there was no such procedure for engaging daily wage workers, the Petitioner could not claim the protection of Section 25-F of the Industrial Disputes Act, 1947.
Brief Facts:
The matter pertained to the termination of the Petitioner, who served as a Sweeper at the Dinjan Branch of the State Bank of India (SBI). The Industrial Tribunal, Guwahati, upheld the termination through an Award. Feeling aggrieved, the Petitioner approached the Gauhati High Court (“High Court”) and challenged the decision of the Industrial Tribunal.
The Petitioner was verbally appointed as a Sweeper and served at the SBI Dinjan Branch. He received daily wages initially at Rs.50/-, later enhanced to Rs.60/-. Additionally, he earned Rs.30/- daily from January 2008 for ATM cleaning and was compensated for other tasks like cleaning the bank premises and acting as a messenger, receiving TA/DA.
The Petitioner argued that his status as a daily wage worker qualified him as a workman. Hence, his termination without prior notice on 16.09.2008 should be voided since it violates Section 25-F of the Industrial Disputes Act, 1947.
Observations by the High Court:
The High Court referred to Hari Nandan Prasad & Another vs. Employer I/R to Management of Food Corporation of India & Another, reported in (2014) 7 SCC 190 where the appellant, engaged on a daily wage basis, was terminated from service, leading to the reference of the industrial dispute to the Central Government-cum-Industrial Tribunal (CGIT). The CGIT proceedings held with the appellants' termination were illegal, and they were directed to be reinstated and their service regularized, as per a circular issued by the FCI entitling any temporary worker employed for more than 90 days to regularization.
In the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota vs. Mohan Lal, the Respondent, engaged as a Mistri on muster roll basis, had his services terminated without one month's notice or salary instead of notice, and without retrenchment compensation. The Labour Court awarded reinstatement with continuity in service, which was initially set aside by a Single Judge of the High Court but reinstated by a Division Bench. However, the Supreme Court noted that there was a significant delay of six years in raising the industrial dispute and held that reinstatement wasn't viable. Instead, the Supreme Court ordered compensation of Rs.1 Lakh to be paid to the workman.
In the case of U.P. State Road Transport Corporation vs. Man Singh, the Respondent's temporary appointment was terminated, leading to an industrial dispute referred to the Labour Court. The Court set aside the termination due to non-compliance with Section 25-F of the Industrial Dispute Act, 1947, but granted only back wages. The Supreme Court, considering the delay of 12 years in raising the dispute and the lack of compliance with recruitment rules, ordered the Corporation to pay Rs. 50,000/- to the workman in the interest of justice.
In the case of Nand Kumar vs. State of Bihar and others, the Supreme Court referred to its judgment in State of Karnataka vs. Uma Devi, emphasizing that temporary or casual employment does not automatically entitle a person to permanent employment. While acknowledging the hardships of temporary employment, the Supreme Court held that it shouldn't undermine the constitutional scheme of appointment. Thus, the Court declined to order permanent employment for the petitioner.
In the case of State of Orissa vs. Mamata Mohanty reported in (2011) 3 SCC 436, the Supreme Court held that appointments made without advertisement contravened Articles 14 and 16 of the Constitution.
Referring to the decision of the Supreme Court, the High Court held there was no evidence to indicate that the Petitioner was engaged against any permanent vacancy following proper advertisement or through the Employment Exchange. Additionally, the Petitioner failed to demonstrate continuous work for more than 240 days in 12 consecutive months, a prerequisite for benefiting from Section 25-F of the Industrial Disputes Act. Furthermore, the Petitioner couldn't establish regular employment with the respondent.
Moreover, as the Respondent bank is considered a State entity under Article 12 of the Constitution, the High Court held it must adhere to appointment procedures outlined in Articles 14 and 16, including advertisement and proper selection processes. However, no such procedures were followed before engaging the Petitioner as a daily wager.
Therefore, the High Court dismissed the writ petition.
Case Title: Binoy Kumar Sinha Vs The Asstt. General Manager Admin. State Bank Of India And Ors.
Case Citation: 2024 LiveLaw (Gau) 27
Case Number: Case No. : WP(C)/1331/2014
Advocate for the Petitioner: Mr. N. J. Khataniar
Advocate for the Respondent: Mr. H. Buragohain