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Gauhati High court uphelds Legal Dispute Over Bank Employee Termination due to lack of Continuous Employment

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Case Name: Binoy Kumar Sinha v. The State Bank of India and 4 Ors.

Case Number: WP(C)/1331/2014

Date of Judgment: 26.04.2024

Quorum of the Case: The case was presided over by Hon’ble Mr. Justice Michael Zothankhuma.

FACTS OF THE CASE

Binoy Kumar Sinha, the petitioner, served as a sweeper in the Dinjan Branch of the State Bank of India (SBI) and challenged the termination of his service dated 16.09.2008. The termination was upheld by the Industrial Tribunal through an award dated 30.09.2013, which answered against the petitioner, stating he was a daily wage worker and not a workman. The petitioner claims to have been verbally appointed as a sweeper on 29.03.2004 and received Rs. 50/- per day, later increased to Rs. 60/- per day. He was also paid Rs. 30/- per day for cleaning the ATM, along with allowances for other tasks. The petitioner argues that his termination violated Section 25-F of the Industrial Disputes Act, 1947, as he was a daily wage worker and should be considered a workman. The reference brought to the Labour Court questioned the legality and justification of the petitioner’s termination and sought relief for him. The Industrial Tribunal’s award was based on the petitioner’s failure to prove continuous employment for 240 days preceding his termination and his status as a daily wage worker rather than a workman. The petitioner’s counsel cites precedents where daily wage workers were regularised, emphasising the petitioner’s four years of service and reliance on Supreme Court judgments. The respondent’s counsel argues against regularisation, citing absence of a scheme for it and the need for compliance with constitutional recruitment procedures. The judgement cites various Supreme Court cases related to the regularisation of temporary workers and emphasises compliance with constitutional provisions regarding appointments. Ultimately, the court dismisses the writ petition, affirming the Industrial Tribunal’s decision and finding no grounds to interfere with it.

ISSUES

  • whether Binoy Kumar Sinha’s termination from his role as a sweeper at the State Bank of India’s Dinjan Branch on 16.09.2008 was legally justified.
  • whether Sinha should be classified as a workman or a daily wage worker, as this classification affects his entitlements and protections under relevant labour laws.
  • whether the termination adhered to the procedural requirements outlined in labour legislation, particularly regarding notice and compensation in accordance with Section 25-F of the Industrial Disputes Act, 1947.

LEGAL PROVISIONS

  • Section 25-F of the Industrial Disputes Act, 1947: This section lays down the conditions that must be met for the retrenchment of workmen. It mandates, among other things, the provision of notice or payment in lieu of notice and the payment of retrenchment compensation to eligible employees.
  • Constitutional Provisions: The case refers to Articles 14 and 16 of the Constitution of India. Article 14 ensures equality before the law, and Article 16 guarantees equality of opportunity in matters of public employment. These provisions are cited to emphasise the importance of adherence to fair and transparent recruitment processes.

CONTENTIONS OF THE APPELLANT

The appellant’s counsel submits that the appellant was orally appointed as a Sweeper on March 29, 2004, and delineates the compensation and duties during his tenure at the State Bank of India’s Dinjan Branch. The progression of his salary, from Rs. 50/- to Rs. 60/- per day, and the additional allowances for specific tasks like ATM and premises cleaning, are highlighted. The appellant’s counsel contends that the appellant’s termination as a daily wager worker breaches Section 25-F of the Industrial Disputes Act, 1947. This assertion rests on the argument that the appellant’s status qualifies him as a workman, thereby entitling him to certain legal protections.  The appellant’s counsel underscores that the reference presented to the Central Government Tribunal seeks clarification on the legality and justification of the appellant’s termination. By framing the reference in this manner, the appellant’s counsel aims to underscore the importance of resolving the issue through legal channels. These contentions provide a structured argument, asserting the appellant’s position regarding the termination and its legal ramifications. They are designed to persuade the court to rule favourably on behalf of the appellant.

CONTENTIONS OF THE RESPONDENT

 The respondent’s counsel argues that the appellant was never formally appointed as a workman against any permanent vacancy, nor was there any advertisement or selection process conducted. Instead, the appellant was engaged sporadically as a daily wage worker for various manual tasks at the bank. The respondent’s counsel contends that there is no scheme in place for the regularisation of the appellant’s employment. As a daily wage worker, there is no basis for regularising his service or extending it beyond the period required by the bank. The respondent’s counsel references legal precedents and emphasises that the appellant’s case lacks the prerequisites for regularisation or continuation of service. The absence of formal appointment procedures and the sporadic nature of the appellant’s engagement are highlighted as key factors in this argument. These contentions collectively constitute the respondent’s position regarding the appellant’s termination and the legal implications thereof. They aim to justify the bank’s actions and refute the appellant’s claims of wrongful termination and entitlement to certain benefits.

COURT’S ANALYSIS AND JUDGEMENT

The court’s analysis begins by referencing relevant judgments and legal principles. It notes that the appellant failed to prove continuous employment for 240 days preceding his termination, a requirement under Section 25-F of the Industrial Disputes Act, 1947. Furthermore, it observes that the appellant’s engagement lacked procedural regularity, as there was no formal appointment process or advertisement conducted by the bank. Building upon its analysis, the court concludes that the appellant did not meet the criteria for regularisation or continuation of service. It emphasises the absence of procedural regularity in the appellant’s engagement and the failure to demonstrate continuous employment for the requisite period. As such, the court finds no violation of Section 25-F of the Industrial Disputes Act, 1947.

Based on its analysis and findings, the court dismisses the appellant’s writ petition. It concludes that there are no grounds to interfere with the Industrial Tribunal’s award, which upheld the termination of the appellant’s service. The court directs that the records be sent back accordingly, thereby bringing the case to a close. This judgement summarises the court’s assessment of the appellant’s claims, the legal principles involved, and the ultimate decision reached by the court.

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 Judgement Reviewed by – Shruti Gattani

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Gauhati High Court rejects petition against Assam Public Service Commission recruitment finding no violation of reservation policy.

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Case title:  RAIHANA AKHTAR VS THE STATE OF ASSAM

Case no.:   WP(C)/3534/2017

Dated on: 3RD May 2024

Quorum:  Hon’ble. MR Justice SANJAY KUMAR MEDHI

FACTS OF THE CASE

The controversy raised in this petition filed under Article 226 of the Constitution of India is in connection with a recruitment process initiated by the Assam Public Service Commission (APSC) for different posts of Lecturers in the Nursing Colleges of Assam. The petitioner has structured his petition on two principal grounds, firstly, violation of the reservation policy and secondly, the mode adopted for such selection.

ISSUES

  • Whether the petitioner’s claims regarding the selection process are factually and legally tenable based on the evidence and submissions provided.
  • Whether the selection based solely on viva-voce was legitimate given the number of applications received and the stipulations in the advertisement.
  • Whether the Assam Public Service Commission (APSC) violated the reservation policy in the selection process for the post of Lecturer in the O&G Department in Nursing Colleges of Assam.

LEGAL PROVISIONS

Constitution of India

Article 226 of the Constitution of India: Provides the High Courts with the power to issue certain writs. The petitioner invoked this article to challenge the recruitment process conducted by the Assam Public Service Commission (APSC). Article 226 allows individuals to seek judicial review of any action by the state or public authorities that they believe violates their fundamental rights or legal entitlements.

CONTENTIONS OF THE APPELLANT

Shri Bhuyan, learned counsel for the petitioner has submitted that amongst the various posts advertised, there were 5 nos. of posts of Lecturer in the O&G Department for which, the petitioner had applied. Out of the 5 vacancies, 3 were for unreserved category and 2 for reserved category. It is not in dispute that the petitioner belongs to the unreserved category. The petitioner on her application, was issued a call letter on 30.08.2016 and the interview was scheduled on 05.09.2016 in which, the petitioner had appeared, However, in the results published, the petitioner was not amongst the selected candidates. Shri Bhuyan, learned counsel for the petitioner has submitted that the communication towards declaration of results dated 24.03.2017 would indicate that only one general category candidate has been selected for appointment as Lecturer in O&G Department and the 4 other vacancies have been filled up by reserved category candidate. The learned counsel has, however, fairly submitted that from the affidavit-in-opposition filed by the APSC, it transpires that two of the selected candidates who belong to reserved category candidate have been. treated as general category on account of their merits. He, therefore, contends that he would not press upon the said ground of challenge. Shri Bhuyan, learned counsel, however, has strenuously canvassed that the procedure adopted for selection is not in terms of the stipulations made in the advertisement. By referring to the mode indicated in the advertisement, it is submitted that the selection was to be held by written test/interview and it stipulates that the Commission may short-list the candidates either on the basis of the marks obtained in the qualifying academic examination required for the post in question or by holding screening test (multiple choice objective type written examination) which would be notified. It is submitted that none of the procedures were adopted and only on the basis of viva-voce, the selection has been done which is not as per the mode indicated in the advertisement. The learned counsel, accordingly submits that the selection is to be interfered with and the candidature of the petitioner be considered in proper perspective.

 CONTENTIONS OF THE RESPONDENTS

Shri Mahanta, learned Senior Counsel representing the APSC, however, has submitted that even the existing ground of challenge is, both factually and legally untenable. He submits that the interpretation of the mode given on behalf of the petitioner is not correct. It is submitted that under heading ‘C’, the precondition for going for short listing the candidates on the basis of the marks obtained in the qualifying academic examination or by holding a screening test is that the number of applications should be large. By drawing the attention of this Court to the affidavit-in-opposition filed by the APSC on 06.01.2024, the learned Senior Counsel has submitted that for the 5 nos. of vacancies in the post of Lecturer O&G, the total number of applications received were 16. It is submitted that the said number of 16 is even less than the number which is envisaged for maintaining a ratio of 1:6. It is accordingly submitted on the behalf of the APSC that there was no requirement for adopting either of the two modes for short listing and the candidates were accordingly interviewed based upon which, the selection has been made. It is further submitted that the mode of selection as such, by interview is not the subject matter of challenge as the petitioner had participated in the said selection process without any objection. Shri Borah, learned Standing Counsel, Health Department while endorsing the submissions made on behalf of the APSC has further submitted that the APSC is the statutory body through which selections are made and there does not appear that there has been any anomalies in the said selection. He accordingly prays for dismissal of the writ petition.

 COURT’S ANALYSIS AND JUDGEMENT

On consideration of the submissions made and the materials placed on record, this Court has noted that the first ground regarding the allegation of violation of the reservation policy has appeared to be factually untenable in view of the facts projected in the affidavit-in-opposition of the APSC that two candidates of reserved category has been appointed in the vacancy meant for unreserved category on the basis of their merits. The aforesaid provision of the advertisement has clearly indicated the mode of selection as written test/interview. The said heading further stipulates two options of short listing the number of candidates on the basis of the marks obtained in the qualifying academic examination or by holding screening test. It is, however, noted that either of the two options are to be exercised only when the application received is large. In the instant case, admittedly, for 5 nos. of vacancies, the total number of applications received is 16. Therefore, there was no requirement at all for adopting either of the two options and accordingly, the candidates who had applied were subjected to a viva-voce test. The petitioner having participated in the said selection process in the mode adopted by the advertisement without any demur will not be allowed to challenge the mode that too, on a ground which apparently appears to fallacious. This Court is of the considered opinion that the grounds of challenge structured is both legally and factually untenable and accordingly, the writ petition is dismissed. 

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Gauhati Court Rules Driver’s Negligence Responsible for Accident: NFR Not Liable for Compensation in Unmanned Railway Crossing Case  

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Case title:  UNION OF INDIA & ANR VS PARTHIVJYOTI SAIKIA

Case no.:   Case No.: MACApp. /349/2013                       

Dated on:  28th May 2024

Quorum:  Hon’ble. MR Justice PARTHIVJYOTI SAIKIA

FACTS OF THE CASE

This is an appeal under Section 173 of the Motor Vehicles Act challenging the judgment and order dated 19.07.2013 passed by the Motor Accident Claims Tribunal, Tinsukia in MAC Case No.23/2010. On 13.11.2009 at about 6.18 P.M., late Bibhnu Bharali was travelling insides the driver’s cabin of the TATA Magic ACE Pick Up vehicle bearing Registration No.AS-23 AC-0846. The vehicle was driven by Lok Bahadur Chetri. The handyman Hori Sonar was also present inside the cabin along with the deceased and the driver. When the vehicle tried to cross one unmanned Railway crossing near Laipuli, a train coming from Lidu towards Dibrugarh had hit the aforesaid vehicle. The deceased sustained grievous injuries and succumbed to his injuries. Therefore, Smt. Rekha Bharali, the wife of the deceased, his two children and his parents filed a claim petition before the Tribunal seeking compensation. Shri Bharat Bharali and Shri Lok Bahadur Chetri, the owner and the driver of the vehicle bearing Registration No.AS-23-AC-0846, the Insurance Company of the said vehicle and the present appellant were arraigned as defendants in that case. In his written statement, Shri Bharat Bharali has claimed that his vehicle was insured with a valid Insurance Policy. He, therefore, claimed that the Insurance Company is liable to pay compensation. The driver Lok Bahadur Chetri has stated in his written statement that he did not notice the incoming train due to heavy fog. He further claimed that the train did not use its horn. The National Insurance Company Limited in its written statement has pleaded that since the vehicle bearing Registration No.AS-23-AC-0846 was a goods carrying commercial vehicle, it cannot carry passengers. The appellant Union of India has stated in his written statement that the incident took place because of carelessness and negligence of the driver of the vehicle bearing Registration No.AS-23-AC-0846. On the basis of the evidence on record, the Tribunal directed the National Insurance Company Limited to pay compensation of ₹4,03,550/- to the claimant along with interest @ 6% per annum. The Tribunal further directed the present appellant to pay an amount of ₹4,03,550/- to the claimant along with interest @ 6% per annum.

ISSUES

  • Whether Bibhnu Bharali @ Bishnu Bharali died on 13.11.2009 as a result of rash and negligent driving of TATA Magic ACE Pick Up vehicle bearing Registration No.AS-23-AC-0846?
  • Whether the claimants are entitled to get any compensation? if so, to what extent and from whom?
  • Whether the accident occurred as a result of negligent act of NF Railways?

LEGAL PROVISIONS

Motor Vehicles Act, 1988

Section 173: Appeals This section allows any person aggrieved by an award of a Claims Tribunal to appeal to the High Court. The appeal must be filed within 90 days from the date of the award.

Section 173 of the Motor Vehicles Act, 1988: Governs the appeal process.

Section 161 of the Railways Act, 1989: Establishes the duty of care required at unmanned level crossings and defines the negligence that contributed to the accident.

Railways Act, 1989

Section 161: Negligently crossing unmanned level crossing This section penalizes anyone who negligently crosses an unmanned level crossing. Punishment: Imprisonment which may extend to one year.

Negligence Defined: Crossing without stopping or caring to stop the vehicle to observe for any approaching train. Crossing even when an approaching train is in sight.

CONTENTIONS OF THE APPELLANT

Ms. Chakraborty has pointed out to Section 161 of the Railways Act, 1989, which states that if any person driving or leading a vehicle, is negligent in crossing an unmanned level crossing, he shall be punished with imprisonment which may extent to one year. At this stage, a brief visit to Section 161 of the Railways Act, would be fruitful, it reads as under: “161. Negligently crossing unmanned level crossing. — If any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable with imprisonment which may extend to one year. Explanation. —For the purposes of this section, “negligence” in relation to any person driving or leading a vehicle in crossing an unmanned level crossing means the crossing of such level crossing by such person— (a)without stopping or caring to stop the vehicle near such level crossing to observe whether any approaching rolling stock is in sight, or (b)even while an approaching rolling stock is in sight. According to Ms. Chakraborty, Lok Bahadur Chetri, the driver of the vehicle bearing Registration No.AS-23-AC-0846 never stopped or cared to stop the vehicle near the level crossing to observe whether any approaching train was in sight. The learned counsel further submitted that it is the fault of the driver for which the accident took place.

CONTENTIONS OF THE RESPONDENTS

No representation.

COURT’S ANALYSIS AND JUDGEMENT

 I have considered the submissions of Ms. Chakraborty. The driver Lok Bahadur Chetri has stated in his evidence that when he had reached the level crossing, the headlights of his vehicle were in switched on mode. He further stated that before crossing the Railway crossing, he did not stop the vehicle but he had looked towards Dibrugarh direction and his handyman had looked towards Lidu direction. When they found no train on the track, they proceeded towards the level crossing. The driver further stated in his evidence that just before him, an Army truck had crossed the Railway unmanned level crossing and he just followed that truck. Immediately, a train coming from Lidu direction had hit his vehicle. The driver has stated in his evidence that he never heard the sound of an incoming train nor he had heard the whistle of the train. In this case, except Lok Bahadur Chetri, there are no eye witnesses to the occurrence. Section 161 of the Railways Act, 1989, makes it compulsory for the drivers of every vehicle crossing an unmanned level crossing, to stop and to observe whether any train is coming, before crossing the level crossing. The driver Lok Bahadur Chetri has stated in his evidence that he did not stop his vehicle before crossing the level crossing. He has stated that though he did not stop before crossing the level crossing, he had looked for incoming train in the direction of Dibrugarh while his handyman had looked towards Tinsukia/Lidu direction. The driver further stated that when he and his handyman did not see any incoming train, he took the vehicle forward for crossing the level crossing. At this stage, I find it hard to believe that the driver did not hear the sound of a huge incoming train. Now, it is clear on the face of the record that the driver Lok Bahadur Chetri had violated the provision of law as laid down in Section 161 of the Railways Act, 1989. It is proved that the accident took place because of the negligence of Lok Bahadur Chetri who was driving the vehicle bearing Registration No.AS-23-AC-0846. In that case, the appellant NF Railways is not liable to pay any compensation to the claimant. For the aforesaid reasons, the appeal is allowed. The impugned judgment and order dated 19.07.2013 passed by the learned Motor Accident Claims Tribunal, Tinsukia in MAC Case No.23/2010 directing the appellant NF Railways to pay a compensation of ₹4,03,550/- to the claimant(s) along with interest @ 6% per annum, is set aside. The MAC Appeal is disposed of.

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Judgement Reviewed by – HARIRAGHAVA JP

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