This Gazette may contains Multiple Subjects

O R D tR

New Delhi, the 22nd October, 2001

STAMPS

S.O. 3023.—In cxeicKe of the powers confer- red by ckiue (b) o', sub-stcticn ( I) of Section 9 or ihe Indian Stumo Ac', U-99 (2 of 1899), the Cential Government herebv permits M|s. Varun Shipping Company Limited, Alambai to pay con- solidated sump du y of mpces twenty seven lakh n;net^ i lliou-and six hundred twenty only charge- ot>i- on accouit of the sfsmp dut\ on 14% Unsecur- ed FuJiy Convertible IXbesvi.it,.-> of rupees ten each at par aggicgptusg *o rupees thirty six crore twenty s'\ lakh fifteen thousand nine hundred ten only, to he issued by the sud company.

[No. 49 2001-Stamps'K No. 33|64s2001-ST] R. G. CHHABRA, Under Secy.

ORDER

New Delhi, the 22nd October. 2001

STAMPS

S.O. 302-J —In t^eic^e of the powers confer- red by cl' vsr (b) of ub-txt'Oii (1) of Section 9 of ih- ipa'an St. nv> Act. 189Q (2 of 1899), the Ctiiuol C.nveiinnert Iuicbv pcimits Power Finance Corpoiiion I fd New Deih; to p'iy consolidated st .inp du*y of rurces one crore sixty three lakh c j'i'ccn thousn'id five hundicd only on Unsecured Ride nutbb Non-Coi\crlible Bonds (2008) IX S.'/io-. Bond in the nnture of Debentures bearing c';-i,ne*-.\ numb.Ms from 00000001 to 00021758 of •S3 79 rup°c we lAh c^e% S-L-rc?''''"'i' *° rupees **) hundred -e^nteen CUM: JIT> t"ghL lakh only, to be issued by the said Corporation.

[V 50 20()l-S"n,ip= F. No. 33 65 2001-ST] R G C H FAR R A, Under Secy

ORDER

New Delhi, the 22nd October, 200!

STAMPS

S O. ^025—In e ^ c i -e of the powers confer- red by clouse (b) of sub-s -ciion (1) of Section 9 Of the InJ.-m Stamp Act, 1899 (2 of 1899), the Central Go', ei nnifnt fc^rtby pein'its Oriental Bank of Commerce, New Delhi to pay consolidated stamp duty of rupees i ne cio^e one lakh sixty thousnid only on Bonds d: uibed os 9 70% Unsecured Non- Convertible Redeemable Bond.-; in the rature of P^missniv Notes bearinq di tirctive numbers from 0001 to 2D00 of rupees ten ^ kn each aggrepat'np to rupees two hundred crorp only allotted on 10fh Sep- '<.mh"T, 10C¹, bv the s?id Rank.

[No 51l2001-Stami3,'F No. 33'66'2001-ST]

ORDER

New Delhi, the 31st October. 200' S O. 3026.--Whereas the Joint Secretary to the Government of India, specially empowered under Sub- section (1) of Section 3 of this Prevention of Illicit Traffic in Narcotic Drugs imd Ps^ch^trop'c Subs- tances Act, 1988 i-sued order F. No. 801/13/2001- PITNDPS dated 21-6-2001 und:r tlu sa;d sub-section directing that Shri M Velud'irai S o Shri M^riida- pandv R /o Jothi Nagar, Alang^'aia, Tirundvelh Dis- trict Tamil Nadu be detained arid kept iii custody in the Central Prison Madurai (Tam'1 Nadu) with a view to preventing him from engaging in the possession rnd transportation of narcotic drugs in future

2. Whereas the Central Government hns reason to believe that the aforr"aid per^o.i is absconding and concealing himself so that The oidei fan not be e>e- cufed.

IF. No. 8Of/l3/200!-PTTNDPS] SMT SHYAMALA MOHAN Under Secy.

(b) fails to maintain books of account .-nd get such accounts audited by an account- ant as required by sub-rule (7) of rule 2E ol the Income-tax Rules, 1962; or

(c) fails to furnish the audit report as requir- ed by sub-rule (7) of rule 2E of the Income-tax Rules, 1962.

3. The enterprise approve i s — 2 y i 30 MW Ther- mal power plant at Toranegallu. Bellary District Karnataka by M/s. Jindal Tractebel Power Company Limited, Jindal Mansion, 5A, G. Deshmukh Marg. Mumbai (F. No. 205/28/98/ITA.II-Vol. I ).

[Notification No. 31S,2OO1|F. No. 205!28'98-ITA-II| Vol.1]

Dr. RAJENDRA KUMAR, Under Secy.

(Central Board of Direct Taxes)

New Delhi, the 4th October, 2001

S O. ?0l7.—K ;S Downed for general informrtion that en*e'urAS. listed at p:j.ra (2) below has been approved by use Central Government for the purpose of Section JO(23G) of the Income-tax Act, 1961, read with rule 2E of the Income-tax Rules, 1962, for the assessment years 2002-2003, 2003-2004 and 2004-2005.

2 The approval is subject to the condition that—•

(i) the enterprise/industrial undertaking will conform to and comply with the provisions of Section 10(23G) of the Income-tax Act. 1961. read with rule 2E of the Tncome-tax Rules, 1962;

(ii) the Central Government shall withdraw this approval if the enterprise/industrial under- taking :—

(a) ceases to carry on infrastructure facility;

or6381 New Delhi, the 4th October, 2001

S.O. 3028,—It is imtifkd for general information that enteipiisc, listed at paia (3) below has been approved by the Central Government for the purpose of Section'l0(23G) of the Tncome-tax Act, 1961, read with rule 2E of the Income-tax Rules, 1962, for the assessment yeaFS 2002-2003, 2003-2004 and 2004-2005.

2, The approval is subject to the condition that—

(i) the enterprise/industrial undertaking will conform to and comply with the provisions of Section J0(23G) of the Income-tax Act, 1961, read with rule 2E of the Income-tax Rules, 1962 ,

(ii) the Central Government.shall withdraw this approval if thi. enterprise/industrial under- taking :—

(a) ceases to cany on infrastructure facility;

or

(b) fails to maintain books of account and get such accounts audited by an accountant as required by sub-rule (7) of rule 2E of the Income-tax Rules, 1962; or

(c) fails to furnish the audit report as requir- ed by sub-rule (7) of rule 2E of the Income-tax Rules 1962,

3, The enterprise approved is—Cellular Mobile Telephone Service in local area served by Madras Telephone District, Maraimalai Nagar Export Proces- s-ing Zone (JWEP2), Minzur and Mahawalipuram by M|s. Skyccll Communication Ltd., under the license agreement No. 842-19/93-TM dated 30-11-1994 be- tween President of India, acting through Director (TM-T), Department of Communication and M/s. Skyccll Communication Pvt. Ltd. (F. No. 2 0 5 / 4/ 2000/TTA.II-Vol.T).

(Notification No, 319/2001/F. No. 205/4/2000-TTA- U-Vo]. I]

Dr. RAJENDRA KUMAR, Under Secy.

3364 GII2001—2.

New Delhi, the 18th October, 2001

sent directly to the Secretaiy, Depaitment of Scientific and Industrial Research.

(INCOME-TAX)

[Notification No. 325/2001/F. No. 203/30/200J- 1TA-1II

SANGEET GUPTA, Director (ITA. 11) S.O. 3029.—It is hereby notified for general infor- mation that the organisations mentioned below have been approved by the Central Government for the period mentioned against their names, for the pur- pose of clause (ii) of sub-section (1) of Section 35 of the Income-tax Act, 1961, read with Rule 6 of the Income-tax Rules, 1962 under the category "Asso- ciation' subject to the following conditions : —

(i) The notified Association shall maintain sepa- rate books of accounts tor its research activities;

(ii) The notified Association shall furnish the Annual Return of its scientific research activities to the Secretary, Department of Scientific and Industrial Research, 'Techno- logy Bhawan', New Mehrauli Road, New Delhi-110016 for every financial yeai on or before 31st May of each year ;

(iii) The notified Association shall submit, on behalf of the Central Government, to (a) the Director General of Income-tax (Exemp- tions), 10, Middleton Row, 5th Floor. Calcutta-700071, (b) the Secretary, De- partment of Scientific and Industrial Re- search, and (c) the Commissioner of Income- tax/Director of Income-tax (Exemptions), having jurisdiction over the organisation, on or before the 31 st October each year, a copy of its audited Annual Accounts and also a copy of audited Income and Expenditure Account in lespect of its research activities for which exemption was granted under sub- section (1) of section 35 of Income tax Act, 1961 in addition tc the return of in- come tax to the designated assessing officer

i No. Name of the organisa-

Period for which Notification is effective

tion approved

1. International Advanced 1-4-2000 to 31-3-2003

Research Centre for Powder Metallurgy and New Materials, Opp. Bala- pur Village, Ranga Reddy

Distt., Hydcrabad-500 005.

Note :—The notified Association is advised to apply in triplicates and well in advince for renewal of the approval, to the Central Govern- ment through the Commissioner of Income- tax/Director of Income-tax (Exemptions) having jurisdiction. Three copies of applica- tion for renewal of approval shall also be6383 New Delhi, the 30th October, 2001

(INCOME-TAX)

third provision lo the aforesaid clause (23) for any period during the previous years relevant to the assessment years mentioned abeve otherwise than in any one or more of the forms or modes specified in sub- section (5) of Section 11 ;

S.O. 3030.—In exercise of the powers conferred by clause (23) ot Section 10 of the Income Tax Act, 1961 (43 of 1961), ihe Central Government hereby notifies the "Durand FooibuH Tournament Society, New Delhi" for the purpose of the said clause for assessment years 1997-98 lo 1599-2000 subject to toe following conditions, namely :—

(iii) the assessec will not distribute any part of its income in any manner to its members except as grants to any association or insti- tution affidrn 't to it; and

(iv) this notification will not apply in relation to any inomc, being profits and gains of business unless the business is incidental to the attainments of the objectives of the assessee and separate books of accounts are maintained in respect of such business.

(i) the a'-seisec will apply its income, or ac- cumulate it for application, in consonance with the piovisiens of sub-section (2) and (3) of Sectior 11 as modified by the said clause (23) lor such accumulation wholly and exclusively to the objects for which it is established;

[Notification No. "541 2001 :F. No. 196[5|2000-

ITA-IJ

P. S. B1NDRA, Under Secy.

(ii) the assessi'c will no* invest or deposit its funds other thai: voluntary contribution⁴; received and maintained in the form of jewellery, furniture or any other article as may be notified by the Board under the6T84 THE GAZETTE OF INDIA : NOVEMBER JO, 2001/KARTIKA 19, 1923 [PART Tl—SEC. 3(iiV| OFFICE OF THE CHIEF COMMISSIONER OF INCOME TAX

ORDER

Bhopal, the 24lh August, 2001

S.O. 3031.—In exercise of the powers conferred by sub-sections (1) and (2) of Section 120 of the Incoire- tax Act, 1961 (43 of 1961), and in exercise of the powers conferred on me by the Governrnent of India, Centra] Beard of Direct Taxes, New Delhi, Notification No. 8478 in F. No. 279/121/89-ITJ/S.O. 868(E) of lncome-'ax Act, 1961 (43 of 1961) and all other powers enabling me in this behalf, I, the Chief Commissioner of lncome-Jax, (CCA), M.P. and Chhatisgarh Region, hereby direct that, Commissioner of Income- ax (Arrtals)-I, Bhopal SHALL NOT and Commissioner cf Income- ax (Appeals)-!!, Bnopal SHALL perform his function in respect of the- pending appeals as en 31-08-2001, arising out of the orders of the Assessing Officers within the administrative control of the Commissioner of Income-iax, Bhopal in respect oftho.se appellants, who have thur nam^s starting from alphabets N to Z. Appeals filed or instituted after 01-09-2001 will be decided by C1T(A)-I, Bhcpal as per the jurisdiction notified vide C1T (CCA), Raipur Order No. CCIT/M?/(CCA), MP and Chhatiisgarh/JURIS/CIT (A)/97-98 dated 24th August, 2001.

This notification shall come into force with effect from 01-09-2001.

SCHEDULE

3

4

5 2

1

Bhopal

Commissioner of Income Cases under the jurisdiction Commissioner of Income

1.

Tax, Bhopal.

of Ranges 1 and 2, Bhopal.

Tax(Appcals)-I.

Commissioner of Income Cases under the jurisdiction

Bhopal

Commissioner of Income

2.

Tax, Bhopal.

of Range 3, Bhopal.

Tax (Appcals)-ll.

All cases,

Commissioner of Income

Jabalpur

Commissioner of Income

3.

Tax-I, Jabalpur.

Tax (Appeals)-L

All cases.

Commissioner of Income-

Jabalpur

Commissioner of Income

4.

Tax-II, Jabalpur.

Tax (AppealsHL

Commissioner of Income All cases.

Gwalior

5.

Tax, Gwalior.

Commissioner of Income Tax (Appeals).

Indore

All cases.

Commissioner of Income

6.

Tax-I, Indore.

Commissioner of Income Tax-I (Appeals).

Commissioner of Income All cases,

lndore

7.

Tax-11, Indore

Commissioner of Income Tax TI (Appeals).

Commissioner of Income All cases.

Ujjtun

8.

Tax, Ujjain.

Commissioner of Income Tax (Appeals).

[F. No. CCIT/MP/(CCA) & Chhaltisgarh/JURlS/ClT(A)/97-981 G. P. NAN DA, Cadre Controlling Chief Commissioner of Income Tax, Raipur6385 Hyderabad, the 20th September, 2001

No. 02/2001-C.Ex. (NT) OFFICE OF THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCJSE Hyderabad [III Commissionerate Hyderabad, the 20th September, 2001

S.O. 3033.—In erercibe of the powers conferred by No. 0l|2001-C.E.x. (NT)

the Central Board of Excise and Customs, Govern-

ment of India, Ministry of Finance, Depailment of

Revenue, New Delhi, by Circular No. 579/16/2001-

CX. dated 26-06-2001 issued under Sub-rule (2) of

Rule 20 of the Central Excise (No. 2) Rules, 2001,

I hereby declare village Ankmhaur, Ghatkcsar Man-

dal, Ranga Reddy District in the state of Andhra

Pradesh to be a warehousing place for the purpose of

registration of warehouses under Rule 9 of the Cen-

tral Excise (No. 2) Rules, 2001.

S.O. 3032..—-In exercise of the powers conferred, by the Central Boaid of Excise and Customs, 'Govern- ment of India, Ministry of Finance, Department oi Revenue, New Delhi by Circular No. 5 7 9 / i 6 / 2 0 0 1- CX. dated 26-06-2001 issued under Sub-rule (2) ol Rule 20 of Central Excise (No. 2) Rules, 2001, I 'hereby declare village Imampet, Suryapet Mandal, Nalgonda District in the state of Andhra Pradesh, to be a warehousing place for the purpose of registra- tion of warehouses under Rule 9, of the Central Ex- cise (No. 2) Rules, 2001.

[F. C. No. IV[16;228|2001LTech.l SUNIPA BASU, Commissioner

IF. C. No, IVjl6|228|2001LTech.l SUNIPA BASU, Commissioner6186 THE GAZETTE OF TNDfA : NOVEMBER 10, 2001/KARTIKA 19, 1923 LPART H— SFC. 3fiiV| 6187 618S THE GAZETTE OF INDIA : NOVEMBER JO, 2001/KARTIKA 10, 1923 |PAxr II—Sic. 3(ii 1

MINISTRY OF FINANCE

(Department of Economic Affairs)

(Bunking Division)

New Delhi, the 30th October, 2001

S. O. 3034 .- In exercise of the powrrs conferred by the Section 3 of Public Premises (Eviction of unauthorised occupanK) Act, 1971, (40 of 1971), and in supersession of the notification of Government of Tndia in tlv Ministiy of Financr, Department of Economic Affairs (Banking Division) N i, 13/01/88- BO-TIl dated 08-06-1989, except ir> rosfert of things done or omitted to be done before such suprrscssion the Centre 1 Govrrnmciv hereby Jippoin+s Jhe Officers equivalent 10 the Rank of a Gazetted Officer of Government to be Estate Officen for the purposes of the said Act who shall exercise the powers 63S9 confeired and p.-rfoim the duties imposed mi the estate officers by or under the said Act in respect of the Public P.emi'-es verified in the Column (2) of the Table.

TABLE

Designation oft hi. Officer

Cu^sorL, of Public Premise) and Local Limits of Jwisdictmn.

(2)

(1)

Circle Head, lrd'\t'i Bank. Ciule Ollicc. Ahmedabad

!J .•jniM.s belonging to or taken on lease by, or on behalf of, the Indian Bunk and situa ed in the districts of Ahmedabad, Anand, Bharuch, Bhava- nagar, Gai dhi Nagar, Jamnagar. Junagarh, ICachchh, Kheda, Mehesana, Pa'-ch Mn'irl- Porbander, Rajkot, Surat, Udaipur, Vadodra and Valsad in the state of Gujarat.

Picmi-es belonging to or taken on lease by, or on behalf of, the Indian Bank and Mk'ated m the districts of Ajmer, Alwar, Bharatpur, Bhilwy.ru, Bikaner. Jaipur, Jodhpur, and Udaipur in the state cf Rajasthan.

Circle Head, Indian Bank. Ciiilc Ollicc, Bangalore,

Pi c u r es b longing to or taken on lea

Picinises belonging to or taken on Ica'-e by, or on behalf of, the Indian Bank and siuu'tcd in the districts of Bagalk.k, Bangalore lUiban, Bclgaum, B.llary, Bijapur, Chamrajnagar, Chikmagalur, Chitradurga, Dakshin, Kannad, na\angore, Dharvvad, Gulbarga, Hassan, Havcri, Kodagu, Mandya, Mysore, Raithur, Shimoga, Tumkur, Udipi, Uttar Kannad in the state of Karnataka.

Circle HwJ, J' dian Bank, Circle Oflice, Bhubaiicshwar.

PL I ! b '• _ing to or taken on lea^e by, or on behalf of, the Indian Bank and situated in the distncis of Durg and Raipur in the state o Chattisgarh.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Boudh, Cuttack, Dhenkaual, Gaja- pati, Ganjam, Jagaisinghpur, Jaipur, Kcndi;..para, Khu.da, Koraput, Kurda, Nayagarh, Pun, Rayagada, San.ha'ipur, and Sundargarh in the state of Orissa.

Circle Head, Indian Bank, Circle Office, Koikata

Premises belonging to or taken on least by, or on behalf of, the Indian Bank and situated in the districts of Bankura, Barddhaman, Kolkata, Dakshin Dinajpur, Darjiliug, Haora, Hugli, Jalpaiguri, Maldah, Medinipur, North 24-Pargar.as and Puruliya in the state of West Bengal, Circle Head, Indian Bank, Circle Office, Chandigarh.

Premises belwnginhg to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Chandigarh in the state of Chandigarh. Premise-, belonging to or taken on lease by, or on behalf Gf, the Indian Bank and situated in the districts of Ambala, Bhiwani, Faridabad, Gurgaon, Hissar, Karnal, Panipat, Rohtak, Sirsa, Soripat, and Yamuna gar in the state of Haryana.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the distiicts of Simla in the state of Himachal Pradesh.

13M Gf|200t—3.

PivmKs b'longing to or taken on lease by, or on bJiaSf of, the Indian Bank and situated in the districts of Amritsar, Bathir.dr Hoshiarpur, Jalandhar, Kepuihala, Ludhiana, Moga, Mawarslr.ih'", Patiala, Rupnagar and Sang'ur in the state of Punj-tb.

Circle Head, Indian Bank. Cirlcle Office, Crewai Noith

Premu-cs bMoiviing to or taken on lease by. or on behalf of, the Indian Bank and situated in the distreL. of Chun a; ar.d Tiruvallur in the state of Tamil NMu.

Premises bslonpinsr fo or taken OP lease by, or on behalf of, the Indian Bank and sifnted in the di't icib of Andaman in *he state of Andaman Circle Head, Indian Bank, Circle Office, Chena* South

and Nicob.tr.

Pr?mV-> belonging to or icken on loa^e by. or on bjhalfof. the Indian Bank' and situated in ih" Hit.-:. <. of C^e-mri K a ' d; epnar- ;>nd Tin.'vnlli..r in the state of Tamil N;du.

Circle Head, Indian Ba"k. Circle Office, Chiv'toor.

Pxemii.es belonging to or iak.cn on lease by. oi on behalf of, tlv Indian Bank and situated in the di<-t ;cts of Anapt:>p.'.<\ Chittoor. Cuddupih and Nellorc in the state of Andhra P"ade>h.

Circle Head, Indian Bank, Circle Office. C ;inib uovc.

P.eTTii c, b-longing to or f~k?n on lease by, or on b;half of, the Indian Bank and situated in the districts of Counbatore. Erode and Nilgiris in the static of Tamil Nadu.

Circle Head, Indian Baiik, Circle Office, Cuddalore.

PrtPii c. belonging to or laktn on kasc by, oi on behu'f of, the- I: dian Bank and situated n iho di--tuct'. of CIKMRIOFC and Vill'.pu'"ajn in the s'ato of Tarail Nadu.

Circle Hjad, Indian Bank, Circle Office, Dharmapun Circle Head, I. dian Bank. Chcle Ofice, Ernakv'pm.

Piemiies belonging to or takcu on lease by, or on behalf of, the Indian Ba^k and 3iuidfedin the districts of Dharmapun in the sir to of Tamil Nadu. Pr jnic w bel^rging to or taken on lease by, oi on b.-half of, the Indian Bcii Ic a^ Jtuated in ihe dit.Kt-. of Alapuzha. Carnur, Errakuiam, K-asa.agotl Kollam, Kottayjiii, Kozhikcde, Malappuram, Paiakkad, Pathany/nthiin!, Thiruvana^thapurajn and Thtissaur in the stite el Keiala.

Premises belonging to or taktn on lease by, or on behalf of, the indian Bank and situated in the distircts cf Mahe in the state of Pondicherry.

Premises beknging to or taken on lease by, or on behalf of, the Indian Circle Head, Indian Bank. Circle Office, Guwahati.

Bank and situated in the districts of Cachar, Dibrugarh, Goal j CiP.Go] a ghat, Jorhat, Kamrup, Lakhinipur. Nagaon, Sibsagar, Sonitpur, and Tinsukia in the state of Assam.

Premises belonging to cr taken on lease by, or on behalf of, the Indian Bank and situated in the districts of East Khasi Hills ar.d Ei f l o i in the state of Meghalaya.

Premises belonging to, or taken on lease, by, or on behalf of, the Indian Bank and situated in the districts of Kohinu, in the state cf Nagaland. Premises belonging to or taken on lease, by or on behalf of, the Indian Bank and situated in the districts of West Tripura in the state of Tripura.

Circle Head, Indian Banh, Circle Office, Hyderaoad.

Premises belonging to or taken on lease by. or on behalf of, the Indian Bank and situated in the districts of Hyderabad, Karimnagar. Khamrram, Kuraool, IVfahbubnagar, Mcdak, Nalfcrc'a N z ;tf t. F a i ; a n c c: ard Wa^angal in the state cf Ai.dhra rradesh.

Circle Head, Indian Bank, Circle Office, Kancheepurarn.

Premises belonging to Or taken on lea-e by, or en berdf cf, the Indian Bank and situated in the districts of Kancheepi'iam and Tiiuvallur in the state of Tamilnadu.

Circle Head, Indian Bank, Circle Office, K.umbakonam.

Premiss belonging U) or taken on lease by, or on behalf of, the Indian Bank ancL situated in the districts of Na£apatlijian\ TLaujavU i io l h i i L \- arur in the stale of Tamilnadu.

Circle Head, Indian Bank, Circle Office, Lucknovv.

Picmises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Agra, Aligarh, Allahatad, Bareily, Bulandshahr, Ghaziabad, Kanpur City, Lucknow, Mathura, M e t r a, Mirzapur, Moradabad, MuzalFarnagar, Saharanpur, Shahjahanpur and Varanasi in the state of Uttar Pradesh.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Dehra Dun and Haridwar in the State of Uttaraneha].

Circle Head, Indian Bank, Circle Office, Madurai.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Dindugal, Madurai, Ramanathapuram, Sivaganga and Theni in the state of Tamilnadu.

Circle Head, Indian Bank, Circle Office, Mumbai.

Premises belonging UJ or taken on lease by, or on behalf of, the Indian Bank and situated in Lhe districts of Greater Mumbai and Thane in the state of Maharashtra.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Delhi in the state of Delhi.

Circle Head, Indian Bank, Circle Office, New Delhi.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Bhopal, Dewas, Gwalior, Indore, Jabalpur, Ratlam, Sagar, Sehore, Ujjain in the stale of Madhya Pradesh.

Circle Head, Indian Bank, Circle Office, Patna.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the the districts of Aurangabad, Bhagajpur, Bhojpur, Darbhanga, Gaya, Jehanabad, Muzaffarpur, Patna, Samastipur and Silamarhi in the state of Bihar.

Premises belonging to or taken on lease by, or on behalf of, the JndJan Bank and situated in the districts of Bokajo, Dhanbad, Purbi Singhbhum and Ranchi in the state of Jharkhand.

Circle Head, Indian Bank, Circle Office, Pondicherry,

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts < f Karaikal and Pondicherry in the state o{~ Pondicherry.

premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Villlpuram in the slate of Tamilnadu.

Circle Head, Indian Bank, Circle Office, Pune.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Ahmedanagar, Akcia, Amravati, Aurangabad, Chandrapur, Kolhapur, Nagpur, Nasik, Pune, Sangli, Satara, Solapur, and Yavatmal in the slate of Maharashtra.

Circle Head, Indian Bank, Circle Office, Salem.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Namakkal and Salem in the slate of Tamilnadu,

Circle Head, Tndian Bank, Circle Office, Thanjavur.

premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of Pudukottai ind Thanjavur in the state of Tamilnadu.

Circle Head, Indian Bank, Circle Office, Tirunelveli.

Premises belonging to or taken on lease by, or on behal- of, the Indian Bank and situated in the districts of Kanyakumar, Tirunelveli, Tuticorin and Virudunagar in the stale of Tamilnadu.

Circle Head, Indian Bank, Circle Office, Tirchy.

Premises belonging lo or taktn on lea'e by, cr en behalf of, the Indian Bank and situated in the districts c/f Karur, Perambaltir and Tiruchirapalli in the state Tamilnadu,6392 THE GAZETTE OF TNDIA : NOVF.MBIIR m, 2001/KARTIKA 19, 1923 [P,vii I I -- S E C. W) 1 Cirolc Head, Indian Bank, Circle Office, Vellore.

Piemiscs belonging to or trken on lease, by or on behalf of, the lndirn Bank and situated in the districts of Tiruvannan.alai end Vellcje in the state of Tamilnad .

Circle Head, Indian Bank, Circle Office, Vijayawada.

Premises belonging to or taken on leuse by, or on behalf of, Lhe Induin Bank and situated in the districts of Gunlur, Kiihm' and PuvWi!-arn m the s ate of Andhra Pradesh.

Circle Head, Indian Dank, Circle Office, Visakhapatnam.

Premises belonging to or taken on lease by, or on behalf of, the Indian Bank and situated in the districts of East Godawari, Srikakulam. Vis-ha- kapatnam, Vizianagaram and West Godhavaii, in the state of Andhra Pradesh.

Indian Bank and situated in the districts of Yanam in the state cf Pondicherry.

[F. No. 13/10/2001-BOA]

D. CHOUDHURY, Under Sccv.

MINISTRY OF COMMERCE AND INDUSTRY

(IXp.irtniciit of Commerce)

New Delhi, the 25th October, 2001

S, O. 3CH5. -In exercise of the powers con- ferred, by sub-seenou (1) oC section 7 of the Fxport (Quality Control and Inspection) Act, 1963 (22 of 1961), the Ce.Hral Government hereby recognises M/s Brakes India Limited having their registered Office at 21, Patulloups Road, Madras-600002 as an agency, for a period of hree year., from the d.uc of publication of this notification in this Ollieial Gazette, for inspection of automobiles spares component and access >ries maiiii^.ctuied at their works Brake Division, Sholmghur, Velloii. District, Pin Code 6H102, prior to export, subject lo the following conditions, name-ly :

[I) M/s Biakes India Limited, shall c^rry out inspection of automobiles spares components and accessories manufactured at their woiks prior to export und fi^ t he technical control of an oflievi not

directions as I he Director (Inspection and

Quality Control) may give to it from below I hi- rank of Joint Director, E>poit Irr-pcct'on Arcriy, Mrdrar ard for this

time to time.

purpose M/s Brakes India Uiniifd sMl

pay to the Export Inspection Aeei.iy,

Explanation :--For the puipose of this Madras an amount at the rate of

notification, "automobiles spares component and 0.1 per cent of F.O.B. (Free on Board)

accessories" means' the manufactured products value of the items exported from I heir

unit of Brakes Division. Sholinghur,

used in automobile.-, and trailer* (whether attached to the vehicle or not) including those used a¹- Veil ore District, Pin Code 631102,

replacement p^rts for the o.-iginal p duets, viz. subject to a minimum of rupees two,

brakes assembly, maslcr cylinder, wheel cylinder, thousand ;>nd five hundred and rruiximum

their pirt'j and repair kits.

of rupees one lakh* in a year.

(2) M/s. Brakes India Limited in the per-

[F. No. 5/9/2001 -EI&EP] formance of its function under this

RAJ SINGH, Deputy Secy.

notification shall be bound by such6394 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 fPAi-.r TT- -Sue. 3(ii)] 6395 tf396 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PARI II—LI C. :.(.i)j 6397 6398 THE GAZETTE OF INDIA: NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3(H)] MINISTRY OF CONSUMER AFFAIRS AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

(BUREAU OF INDIAN STANDARDS)

New Delhi, the 25th October, 2001

S.O. 3036. —In pursuance of clause (b) of sub-rule (1) of Rule 7 of the Bureau of Indian Standards Rules 1987, the Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the Sche- dule hereto annexed have been established on the date indicated against each :

SCHEDULE

No. & Year of the Indian Standards Established

SI. No.

Date of Establish- ment

No. & Year of Indian Standards, if any, Super- seded by the New Indian Standard

(2)

(3)

(4) (1)

1.

IS 784:1978

2001-02-28 IS 784:2001—Prestressed Concrete Pipes (Including Specials)— Specification (Second Revision)

IS 1866:1983

2.

2000-12-31 IS 1866:2000—Code of Practice For Electrical Maintenance and Supervision of Mineral Insulating Oil In Equipment (Third Revision)

—

3.

2001-02-28 IS 1885 (Part 84) : 2001—Electrotechnical Vocabulary Part 84 : Fire Tests

IS 2831:1975

4

2001-01-31 IS 2831:2001—Carbon Steel Cast Billet Ignots, Billets, Blooms And Slabs For Re-Rolling Into Low Tensile Structural Steel- Specification (Third Revision)

5.

IS 3626:1978

2001-01-31 IS 3626:2001—Locked Coil Winding Ropes—Specification (Second Revision)

IS 4454 (Part 1):1981

6.

2001-03-31 IS 4454 (Part 1) : 2001—Steel Wire For Mechanical Springs- Specification Part 1 : Cold Drawn Unalloyed Steel Wire (Third Revision)

7.

2001-02-28

IS 4454 (Part 2) : 1975 IS 4454 (Part 3) : 1975

IS 4454 (Part 2) : 2001—Steel Wire For Mechanical Springs- Specification Part 2 : Oil Hardened And Tempered Steel Wire (Second Revision)

IS 4454 (Part 4) : 1975 -

8.

2001-03-31 IS 4454 (Part 4) : 2001—Steel Wire For Mechanical Springs- Specification Part 4 : Stainless Steel Wire (Second Revision)6399 (3)

(4) (2)

_0)

IS 5309 (Parrt 1 & 2) : 1987 2001-02-28 9.

2000-10-31

IS 5509:1980

10.

IS 5309 : 2001— Poultry Farming Equipment Brooders—Specifi- cation (Second Revision) IS 5509 : 2000—Fire Ret Ardant Plywood—Specification (Second Revision)

IS 6044 (Part 1) : 1971

2000-12-31 11. IS 6044 (Part 1) : 2000-^Code of Practice For Liquefied Petro- leum Gas Storage Installat ons Part 1 : Commercial And Industrial Cylinder Installations (First Revision)

IS 6603:1972

2000-01-31 12. IS 6603 : 2001—Stainless Steel Bars And Flats—Specification (First Revision)

IS 6964:1973

13.

2001-02-28 IS 6964:2001—Electroacoustics—Octave—Band and Fractional- Octave—Band Filters (First Revision)

IS 8951:1978

14.

2001-01-31 IS 8951:2001—Steel Cast Billet Ignots, Billeets And Blooms For Production of High Carbon Steel Wire—Rods—Specification (First Revision)

IS 9801:1992

2001-01-31 15. IS 9081:2001—Automotive Vehicles—Valve Accessories For Pneumatic Tyres—Specification (Third Revision)

16.

2001-02-28 IS 9127 (Part 4) :2001—Methods For Pctrographic Analysis of Coal Part 4 : Method Of Determining Microlithotype, Carbominerite And Mincrite Composition

17.

2000-12-31 IS 9471 (Part 7) : 2000—Modular Lower Limb Orthotic Compo- nents Specification Part 7: Orthotic Joint Bars, Ankle And Knee (Upper And Lower)

18 9775:1981

18.

2000-12-31 IS 9775:2000—Carbide Flats, Squares And Rounds—Dimensions (First Revision)

IS 9806:1981

19.

2001*01-31 IS 9806:2001—Methods Of Tests For And Permissible Limits Of Toxic Materials Released From Ceramicware, Vitreous Enamel- ware Glassware And Glass Ceramicware In Contact With Food (First Revision)

IS 9829:1981

20.

2001-02-28 IS 9828:2001—Portable Pneumatic Sanders—Specification (First Revision)

18 9835:1981

21,

2001-01-31 IS 9835 (Part 1): 2001—Series Capacitors For Power Systems Part 1 : General Performance, Testing And Rating—Safety Re-quirements—Guide For Installation (First Revision)

IS 9873 (Part l):198l

22.

2001-02-28 IS 9873 (Part 1): 2001—Safety Requirements For Toys Part 1 : Safety Aspects Related To Mechanical And Physical Properties (First Revision)

23.

TS 10343:1985)

1999-08-31 IS 10343:1999—Carbon And Low Alloy Steel Investment Castings For General Applications—-Specifiction— (Second Revision)

24. :

IS 11377 : 2001

2001-03-31 IS 11377:2001—Guidelines For Hygienic Manufacture of Cosme- tics (First Revision)6400 THE GAZETTE OF INDIA: NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART H—SEC. 3(IJ)] i

(2)

(3)

IS 11652:1992

2000-11-30 25. IS 11652:2000—Textiles—Woven Sacks For Packing C e m e n t- High Density Polyethylene (H£)PE)/Polypropylone (PP)—Speci- fication (Second Revision)

26.

2001-01-31 IS 12082 (Part 2) : 2001—Control of Asbestos Emission—Re- commendations Part 2: Milling of Asbestos Ore

—

2001-01-31 27. IS 12433 (Part 2) : 2001—Basic Requirements For Hospital Planning Part 2: Up To 100 Bedded Hospital

28.

IS 13360 (Pt. 4/Sec 1) : 1995 2000-12-31 IS 13360 (Part 4/Sec 1) : 2000—Plastics—Methods of Testing Part 4: Rheological Properties Section 1: Determination of The Melt Mass-Flow Rate (MFR) And The Melt Volume-Flow Rate (MVR) of Thermoplastics (First Revision)

29.

2001-01-31 IS 13360 (Part 5/Sec 14) : 2001—Plastics—Methods of Testing Part 5: Mechanical Properties Section 14: Determination of Indentation Hardness of Rigid Plastic By Means of Barcol Impressor

30.

IS 13360 (Pt 6/Sec 6): 1994 2001-01-31 IS 13360 (Part 6/Sec 6) : 2001—Plastics—Methods of Testing Part 6: Thermal Properties Section 6: Flammability By Oxygen Index—Guidance (First Revision)

31.

—

2001-01-31 IS 13360 (Part 6/Sec 19) : 2001—Plastics—Methods of Testing Part 6: Thermal Properties ' Section 19: Flammability By Oxygen Index—Ambient Tempera- ture Test

32.

—

2*X)i-©2-28 IS 13360 (Part 6/Sec 20) : 2001—Plastics—Methods of Testing Part 6 : Thermal Properties Section 20 : Flammability by Oxygen Index—Elevated Temperature Test.

33.

—

2001-01-31 IS 13360 (Part 9/Sec 8) : 2001 Plastics—Methods of Testing Part 9 : Optical Properties Section 8 : Determination of Transparency of Plastic Sheeting.

34.

—

2001-02-28 IS 13360 (Part 9/Sec 9) : 2001—Plastics—Methods of Testing Part 9 : Optical Properties Section 9 : Determination of Yellow Index of Plastics.

35.

—

,, 2OQ1-01-31 IS 13360 (Part 10/Sec 4) : 2001—Plastics—Methods of Testing Part 10 : Thermosetting Properties Section 4 : Determination of Gel Time and Peak Exothermic Temperature of Reacting Thermosetting Resins.

{{^{{FOOTNOTE (1)}}}}

(2) IS 13360 (Part 11/Sec 5) : 2001—Plastics—Methods of Testing

36.

Part 11 : Special Properties Section 5 ; Determination of White

Point Temperature and Minimum Film-forming JemperatureM-

IS 14206 (Part 2) : 2001—On-site Non-Mechanical Jointing of

37.

Plied Textile Reinforced Rubber Conveyor Belting—Code of

Practice Part 2 * Cold Vulcanizing.

640k

(4) (3)

2001-02-28

2001-01-31

2001-02-28 IS 14219 : 1994

IS 14219 : 2001—Neurosurgical Implants—Sterile, Single-Use

38.

Hydrocephalus Shunts and Components (First Revision)

IS 14773 (Part 5) : 2001—Mechanical Vibration of Non- 39.

Reciprocating Machines—Measurements on Rotating Shafts and

Evaluation Criteria Part 5 : Machine Sets in Hydraulic Power

Generating and Pumping Plants

IS 14836 (Part 1) : 2000—Codes for the Representation of names

40.

of Countries and their Subdivisions

Part 1 : Country Codes

IS 14862 : 2000—Fibre Cement Flat Sheets—Specification

41.

42. IS 14865 : 2001—Boring Bars for Indexable Inserts—Dimensions

IS 14866 : 2000—Single Point Tool Holders For Turning and

43.

Copying for Indexable Inserts—Dimentions IS 14871 : 2000—Products in Fibre Reinforced Cement—Long

44.

Corrugated or Asymmetrical Section Sheets and Fittings for

Roofing and Cladding—Specification IS I4877-(Part 1) : 2000—Hydraulic Presses—Straight Sidyjd

45.

Column/C-Frame Typj

Part 1 : .Test Chart for Geometrical Accuracy 46. IS 14878 : 2000—Test Chart for Plate Bending Machines 47. IS 14890 : 2001—Sardines—Fresh, Frozen and Canned-

Specification

48. IS 14891 : 3001—Mackerel—Fresh, Frozen and Canned—

Spxification

-2001-02-28 '—"

¹ f 2000'1,0-31 —

2WI-U-31 —

2QQ;:02-28 —

2000-12-31 ——

2000-12.-31

20Q0-I2.-31 —

2000-11-30 IS 2421 : 1981,6677 : 72

2 001 02-28 8652 : 77, 8653 : 1977,

9750 : 1981,10761 : 1983

2001-01-31 IS 2420 : 1985, 384? ; 19Wk

6032 : 71, 6033 : 71,

9312 : 79

(1)

(2)

IS 14893 : 2001—Non-Destuctiw Integrity Testing of Piles

49.

(NDT)—Guidelines

IS 14896 : 2001—Personal Computer—Sp^ification 50,

IS 14898 : 2001—Eco Criteria for Finished L e a t h e r- 51.

Specification

IS 14971 (Part 1) : 2C01—Semiconductor Devias—Discrete

52.

Devices and Integated Circuits

IS 14901 (Part 7) : 2001—Semiconductor Devices—Discrete

53.

Devices and Integrated Circuits

Part 7 : B'polar Transistors

IS 14902 (Part 1) : 2001—Performance of High-Voltage D.C

54.

(HVDC) Systems

Part 1 : Steady State Conditions

IS 14903 : 2001—Transport of LabDratory Animals—Code of

55.

Practice

IS 14904 : 2001—Transport of Livestock—Code of Practice

56.

IS 14905 : 2001—Air-Conditioning and Ventilation of Machinery

57.

Control-Rooms on Board Shipj—Design conditions and Basis of

Calculations

IS 14906 : 2001—Air-Conditioning and Ventilation of Wheel-

58.

house on Board Ships—Design Conditions and Basis of Calculations

IS 14908 : 2001—Mechanical Vibration and Shock—Mechanical

59.

Transmissibihty of the Human Body in the Z Direction IS 14909 : 2001—Shipbuilding --Engine-Room Ventilation in

60.

Diesel Engined Ships—Design Requirements and Basis of Calculations

IS 14910 : 2001—Mechanical Vibration and Shock—Human

61.

Exposure—Biodynamic Coordinate Systems IS 14911 (Part 1) : 2001—Thyristor Valves for High Voltage

62.

Direct Current (HVDC) Power Transmission Part 1 : Electrical Testing

IS 14912 : 2001—Door Closers, Concealed Type (Hydraulically

63.

Regulated)—Specification

(4) (3)

2001-01-31 —

—

2001-02-^8 —

2001-01-31 —

2001-01-31

2001-02-28

2001-01-31 —

2001-01-31 —

2001-01-31 —

2001-02-28

2001-02-28 —

2001-01-31 —

2001-01-31 —•

2001-02-28 —

2001-01-31 —

2001-03-316403 )

( 2)

0)

(1

(*)

2001-01-31 rS 14916 : 2001—Mechanical Vibration and Shock-Free,

64.

—

Mechanical Impedance of the Human Hand-Ann System at the

Driving Point

2001-02-28 IS 14924 : 2001—Synthetic Quartz Crystal—Specifications and

65.

IS 9709 : 1978, 8899 : 1978, Guide to the Use.

10184 : 1982

Copy of these standards are available for sale with the Bureau of Indian Standards, Manak Bhavan, 9, Bahadur Shah Zafar Marg, New Delhi—110 002 and Regional Offices : New Delhi, Calcutta, Chandigarh, Chennai, Mumbai, and also Branch Offices : Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur, Patna, Pune, Thiruvananthapuram.

[No. CMD-1/13 :2]

SATISH CHANDER, Addl. Director Generalm^ J gE GAZETTE OF INPtA; #&3SMBBR 40, ymim&BXlKA 19, 1923 [PART Tt^fotC. $00]

New Delhi, the 25th October, 2001

S.O. JO37.—In pursuance of clause (b) of sub-rule (I) of Rule 7 of the Bureau of Indian Standards Rules 1987, the Bureau of Indian Standards hereby notified that amendments to the Indian Standards, particulars of which are given in the Schedule hereto annexed have been isued.

No. & Year of the Ihdfah' Standards

SI.

> No. & Year of the amendment .Date from which the amend- No.

ment shall have effect (2)

(3)

(Dl

(4) IS 1391 (Part 1) : 1992

1.

Amendment No.-l

2000-10-31

Octobsr 2000

JS 3177 ! 1999

Amendment No. I

2.

2000-12-31

December 2000

IS 8615 : 1993

Amendment No. 1

3.

2000-12-31

December 2000

IS"td35O : 0 99

Amendment No. 1

4.

2000-02-28

Fcb nary 2001

IS 10805 : 1986

Amendment No. 2

5.

200042-31

Dec"rtbJT 2000

Amenflnicnt No. 2

IS't^SO : 1997

6."

2000-12-31

December 2000

Cc p/ of these amendments arc available for sale with the Bureau of Indian Standards, Manak Bhavan, 9, Bc.H.dur Shah Zafar Marg, NeW Delhi—110 002 and Regional Offices : New Delhi,'' Calcutta, Chandigarh, Chcnr-ai, Mumbai and also Branch Offices : Ahmedabad, Bangalore, Bhopal, Bhubancshwar, Coimbatore, H)doub..d, Jaipur, Kanpur, Nagpur, Patna, Pune, Thiruvananthapuram.

[No. CMD-1/13 : 51

SATISH CHANDER, Add. Director General6405 'MiNiSTRV OF CONSUMER AFFAIRS, KX5tt AND PUBLIC DISTRIBUTION

lic Distribution (ftejpartincftt ft! Food and Fubfia Distribution), where of more than 80% of staff have acquired the working knowledge of Hindi :

(Department of Food and Public Distribution)

Nev Delhi, the 29th October, 2001

S.O. 3038—In pursuance of Sub-Rule (4) of

1. Food Corporation of India, Central Training Institute, Gurgaon (Haryana).

(it-*"

[No. E-U01111i|2001-Hindi]

RAJNI RAZDAN, Jt. Secy.

rule 10 of the Official Language (use for official pur- pose of the Union) Rules, 1976 the Central Govern- ment hereby notifies the following office of Food Corporation of India under the administrative control of the Ministry of Consumer Affairs, Food and Pub-

MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health)

New Delhi, the 15th October, 2001

S.O. 3039.—Ill exercise of the powers conferred by sub-section (2) of the section 11 of the Indian Medical Council Act, 1956 (102 of 1956), ihe Central Government, after consultation with the Medical Council of India, hereby makes the following further amendments in the First Schedutb to the sttllj Act, namely :

In lite said First Schedule, against the Rajiv Gandhi University of Health Sciences, Kilmaiaku, under tho feeding 'Recognised Medical Qualification' after the entry, "M&gistfar of Chjrufgiae (Cardltvtiloracie Surgery)' " 64 G1I20O1—5.

•and the entry relating thereto under the heading 'Abbreviation for Registration*, the following shall be inserted., namely :

Recognised medical qualification

Abbreviation for registration

"Bachelor of Medicine and Bachelor of

Surgery

MINISTRY OF URBAN DEVELOPMENT AND POVERTY ALLEVIATION

(Directorate of Estates) New Delhi, the 7th November, 2001 S.O. 3040.—In pursuance of Clause (b) of SR- 317-B-2 of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963, the President hereby notify commencing of the Rolling Allotment Year on the 1st Day of April, 2002 till further orders.

[F. No. 12035|8!2001-Pol. Ill MAHENDRA SINGH, Dy. Director New Delhi, the 7th November, 2001 S.O. 3041.—In puisuance of Clause (b) of SR- 317-B2 of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963, the President hereby extends the period of current allotment year.

MBBS (This qualification shall be d recognised medical qualification

when granted in or after May, 2001)".

[No. V.11015/4/2001-ME (Poficy-I)] P. G. K-ALADHARAN, Under Secy.

which commenced on 1st Day of January, 2000 to 31-12-2001, upto 31-3-2002.

IF. No. 12O35| 14|99-Pol.H] MAHENDRA SINGH, Dy. Director MINISTRY OF COMMUNICATIONS (Department of Telecommunications) (Official Language Section)

New Delhi, the 29th October, 2001 S.O. 3042.—In pursuance of rule 10(4) of the Official Language (use for official purpose of the Union), rules, 1976 the Central Government hereby notifies the following office under the administrative control of Ministry of Communications, Department of Telecommunications whereof more than 80 per cent staff have acquired working knowledge of Hindi.

Chief General Manager (Telecom) Haryana Telecom Circle, Ambala.

Telecom District Manager, Rewari.

[No. E-11016/1/99(O.L.)]

R. D. MASIWAL, Director 3364 GI/2001—6.6408 THE GAZETTE OF INDIA: NOVEMBER 10,2001 KARTIKA 19,1923 [PART II—SEC. 3 (ii)]

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 6th November, 2001

s. O.3043.— in pursuance of clause (a) of section 2 of the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Act, 1962 (50 of 1962), the Central Government hereby authorise the persons mentioned in the column (1) of the Schedule given below to perform the functions of the competent authority u c *^ the said Act for laying of the pipeline by M/s Gas Transportation and Infrastructure Company Limited (GTICL) having its Registered Office at R.P.L. House, 3rd floor, 15, Waichand Hirachand Marg, Ballard Estate, Mumbai-400038 for transportation of natural gas produced in the exploration blocks of its promoter company, namely, M/s Reliance Industries Limited in Northern and Southern offshore of Goa and structures in Andhra Pradesh for distribution to various consumers located in the State of Karnataka in respect of the areas mentioned in column (2) of the said Schedule:

SCHEDULE

Name and Address of the persons

Areas of jurisdiction

(2)

(1)

District of Belgaum in Karnataka State.

(1) Shri Atu! Kumar Tiwari, District Collector, Belgaum District, Government of Karanataka C/o M/s Gas Transportation and infrastructure Company R.P.L. House, 3rd Floor, 15, Waichand Hirachand Marg., Ballard Estate, Mumbai-400038.

District of Bijapur in Karnataka State. •

i (2) Shri Rakesh Singh, Deputy Collector, Bijapur District, Government of Karanataka C/o M/s Gas Transportation and Infrastructure Company R.P.L. House, 3rd Floor. 15, Waichand Hirachand Marg, Ballard Estate, Mumbai-400038.

District of Guiburga in Karnataka State.

(3) Shri M Lakshmi Narayana, District Collector, Guiburga District, Government of Karanataka C/o M/s Gas Transportation and ' n f r a ^ j ^ u i tj Company R.P.L. HetSS, 3rd FloorT 15, Waichand Htrachand Marg Ballard Estate, Mumbai-400038.

[No. L-14014/9/01—GP] SWAMI SINGH, Director6409 ^> T l ^ G A Z E l TE OF INDIA: NOVEMBER 10,2001 KARTIKA 19,1923 PART II—SEC. 3 (ii)] 6411 6412 THE GAZETTE OF INDIA .NOVEMBER 10,2001 KARTIKA 19,1923 [PART H—SEC. 3 (ii)] 6413 6414 THEGAZETTEOFINDIA:NOVEMBER10,2001KAKnKA19,1923 [PARTII—SEC. 3 (ii)] 6415

New Delhi, the 8th November, 2001

S. 0.3044.—.Whereas, it appears to the Central Government that it is necessary in the public interest that for the transportation of crude oil from Viramgam in the State of Gujarat to Panipat in the State of Haryana via Chaksu in the State of Rajasthan, a pipeline should be laid by the Indian Oil Corporation Limited for implementing the "Augmentation of Viramgam - Chaksu, Chaksu - Panipat and Chaksu - Mathura sections of Salaya - Mathura Pipeline System".

And whereas it appears to the Central Government that for the purpose of laying the said pipeline, it is necessary to acquire the right of user in the land under which the said pipeline is proposed to be laid, and which is described in the Schedule annexed to this notification;

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962), the Central Government hereby declares its intention to acquire the right of user therein.

Any person interested in the land described in the said Schedule may, within twenty-one days from the date on which the copies of the notification issued under sub-section (1) of section 3 of the said Act are made available to the general public, object in writing to the laying of the pipeline under the land to Shri Sunil Sharma, Competent Authority, Salaya-Mathura Pipeline (Augmentation) Project, Indian Oil Corporation Limited, 33, Muktanand Nagar, Gopal Pura Bye-Pass, Jaipur, (Rajasthan)6416 THE GAZETIB OF INDIA: NOVEMBER 10,2001 KARTIKA 19,1923 [PART II—SEC. 3 (ii)]

SCHEDULE

Tohsll : MASUDA

State : RAJASTHAN

District: AJMER

Area

Name of the Village

Hectare

Sqmtr.

Khasara No.

Are

1

4

5

3

2

84

0

13

2179

KANA KHERA

0

2178/1

93

12

11

0

13

2178/2

72

2163/3

0

04

87

0

2202

12

68

2163/7

0

20

01

79

2106

0

0

02

29

2103

0

02

31

2105

50

2104

0

04

90

0

2099

00

2111

0

01

51

06

69

2098

0

71

03

0

2112

02

67

0

2097

41

0

02

2096

00

0

34

2113/2

00

0

20

2074

08

0

82

2073

88

02

0

2081

47

01

0

2082

41

07

0

2083

91

0

09

2065

10

62

0

1945/2

05

08

0

1945/1

10

55

0

1946

57

0

08

919

80

03

0

1941

18

0

06

1940

52

09

0

1934/36417 I 2 | I 4 I 3 | I ⁵ KESHARPURA 697 0 20 ocy 698/1 0 13 11 696

699 706/1

708 709 710 711

712

790

638

634/2 630

487

494

493/1 493/2 413

416

412

401

397

396

395

402

394

393

392

347

345

330

328

326

325/1

325/2

309/1

01

81 0 0

01

69 03

17 0 0

07

66 0

04

68 0

05

99 0

01

49 0

17

00 0

03

09 0

00

24 0

00

40 0

22

58 0

02

73 0

06 ' 48 0

14

93 0

01

16 0

05

11 0

03

45 0

09

29 0

06

42 0

02

34 0

04

71 0

01

33 0

00

20 0

16 0

14 04

83 04

18 06

28 0 0 0

99 0

04 02

96 0

06

28 0

00

35 0

02

10 0

03

63 0

00

436418 THE GAZETTE OF INDIA: NOVEMBER 10,2001 KARTIKA 19,1923 [PART II—SBC. 3 (ii)] 1 I 2 I 3 | 318/1 0 316/1 I 4 08 07 0 316/2

I 5 77 39 0

00

315/1

315/2

312

311

313/1

1091/1

1092

1093

1094/1

1095

1097

1099

6848/1 0

05

33 48 01

0

23 0

00

24 00

0

20 0

02

88 0

05

11 0

03

15 0

01

74 06

0

15 01

0

70 0

01

37 0

03

86 0

11

KHARWA

6852

6850/1

6834

6836

6835

6837

6826

6825

6824

6752/2

6752/1

6765

6763

6762

6756

6761

6758

6759

6286

6285

6290

91 0

96 02

0

06

76 0

09

40 0

09

32 0

01

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0

72 0

13 02

0

01

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00

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0

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0

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91 0

95 02 00

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0

406419 I 5 ¹ I 2 | I ⁴ I I ³ 14 6275 0 25 05 39 6274 0 6266

6267

5946

5947

5943

5948

5949

5934

5935

5926

5925

5924

5923

5920

5919

5992

5874/1 5873/2 5873/1 Mm 5872/1 5871/1 5867

5866

5865

3982

3983

4040

4039

3997

4015/1 4016

4017/1 4018/1 4020

4019

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0

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01

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63 77 27 o- 0 0 0

01

55 06420 THEGA2ETTEOFINDIA:NOVEMBER10,200lKAKriKA19,1923 [PARTII—SEC, 3 (ii)] 1 5 4022 00 0 48 4023 0 57 01 5299

5298

5263/1

5264

5262

5268

5269

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5255/1

5254

5231

5230

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5225

5215

5213

5214

5207

5211

5206

5200

5201

5196

5195

5194

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97

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42 [No. R-25011/38/2001- OR-I] S CHANDRA SEKHAR, Under Secy,6421 This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M. Ramudas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following:

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

MINBTRYOFLABOUR

New Delhi, the 17th October, 2001 S.O. 3045.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal/cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/2/200MR(B-D]

AJAY KUMAR, Desk Officer (2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Gollalapalem branch in the year 1987 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Main Branch, Kakinada. The management did not allow the workman to work more than 200 days in a year with a view to deprive him to claim regularis*tfion on the ground that he worked more than 240 days in a > ear.

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISAKHAPATANAM PRESENT:

Sri K. Vcerapu Naidu, B. Sc, B.L., Chairman & Presiding Officer

Dated; 18th day of August, 2001

LT.I.D(QNo. 23/99

BETWEEN:

Palivela Izrail Raju, S/o. Simhadri, D. No. 19-4-6, Bankpeta, Kakinada, East Godavari Dist. ...Workman AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Strec, Hyderabad.

(2)TheDy, General Manager,

State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. ...Management (3) The petitioner worked in the respondent bank for 1062 days from 1987 to 1997 with breakes and he was terminated on 1-4-97 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidate whose services are absorbed is filed. The petitioner also gave his aplication seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a calander year. The Management did not follow the rule provided under Sec, 25G of the I.D, Act. namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff federation. The petitioner was engaged as a Messenger in State Bank of India Gollalapalem branch in a leave vacancy. As per the" settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 1 -3 -97 and juniors whos are left over from the cmpenelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the6422 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KAKTIKA19,1923 [PART H—SEC. 3 (ii)] bank's service against vacancies likely to arise from 1988 to 1992."

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-1997. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are a follows:

CO Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(ii) Category ' B\ those, who have completed 270 days aggregate temporary service in any continuous block of 36 calandar months after 1-7-1975.

(iii) Category ' C, Those, who have completed a

minimum of 30 days aggregate temporary service in any calandar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calandar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1 st settlement. In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of casual/daily wagers. There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Timpathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/ daily wagers were prepared zonewise separately for messengers and non-messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently. Settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive uptb 1997 filling the vacancies existing/arrived at as on 31 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to ' arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parities on 27-10-88 as per the said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as following:

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the messengerial vacancies as on 3142-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 par.;l for temporary employees after effecting conversion from time non-messengerial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31 -3-97.

"persons, who have been engaged in casual basis (as defined in clause 1 l(ii) hereunder) to work in leave/casual vacancies of Messengers, Farrashes, Cash Coolies, water Boys, sweepers etc., for any of the periods mentioned in category' A', 'B', and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the

(9) The vacancies as agreed upto by the above said settlements and the memorandum of understanding were6423 filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlement to 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1 -1 -75 to 31 -7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31 -3-97 engaging their service for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment of permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 560 and he worked for 65 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the 3364 GI/2OO1—B

workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelmcnt it is estopped from questioning the validity of the settlements, With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from servicing owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W7. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank oflndia Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml to M3.

(17) Heard both sides.

(18) The points that arise for consideration arc:

(1) Whether the petitioner was retrenched in violation of Section 25F of the I. D. Act?

(2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank oflndia, Gollalapalem branch in the year 1987 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at Stale Bank of India Main Branch, Kakinada without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W6 and W7.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1 -4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88. 17-10-88, 9-1-91 and 30-10-96 entered into between the StateBankof India Staff Federation and the management and the6424 THE GAZETTE OF INDIA: NOVEMBER 10,2(X) I/KARTIKA 19,1923 [PARTII—SEC. 3 (ii)] Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel wil 1 be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 65 days during the relevant period from 1-7-97 to 31-7-98. It is also further contended that the workman also appeared for interview in view of the said settlements amd could not be elected for want of vacancies and the^seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I.D. Act,

(21)1 will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W6 and W7 issued by the General Manager (Operations). State Bank oflndia, Hyderabad. Ex. W6 is a circular dated 16th November, 1997, Ex.W7 is die circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calender months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W7 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/ educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W6isanothercirculardated24thSept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1 -7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months, (24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calender year, Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25-B or Sec, 25F of the I, D. Act, The learned counsel appearing for the workman also further contends that Sec, 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuos service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs, Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I, D, Act and it is as follows :

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled

No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these,"

Their lordships observed that the service for 240 days in a period of 12 calendar months equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that period, in un-interrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman"

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec. 25-6425 B(2) reads as follows

"Where a workman is not in continuous service within the meaning of Clause (1) 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 not less than—

(1) one hundred and ninety days in the case of a workman employed below ground in a mine, and

(u) two hundred and forty days, many other case,

(b) for a penod of six months, if the workman during a penod of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer and for less than—

(1) ninety-five days, in the case of a workman employed below ground in a mine, and 00 one hundred and twenty days, in any other case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service¹ irrespective of the interruptions or any break of service

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a penod of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Here the question of their termination periodically or otherwise does not arise Any way, that aspect will be dealt separately at a later stage

01) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days m a year and he also further contends that because of the circular issued by the management under Exs W6 and W7 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1987 and he is only a casual employee The circulars Exs W6 and W7 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motiviated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(32) It is further contended by the workman that the management m this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as containted in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the StaJT Association and the management arc not binding on the workman Whatever it maY be those settlements arc only with regard to the regulation of the temporary/casual employees The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workman is that the termination of the petitioner, as alleged by him, is illegal (33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under Uie Contract Labour6426 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KARTIKA19,1923 [PART II—Snc.3(ii)] (Abolition, and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

Dictated to stcno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer

APPENDIX OFEVIDENCE; WITNESSES EXAMINED

For workman: WW1: P. IzarailRaju

For management : MW1: Crm Sastry

DOCUMENTS MARKED

FOR WORKMAN:

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31 -3-97 and his services were retrenched without following the procedure contemplated under Sec. 25Fofthe I.D. Act.

Ex. Wl: 19-7-96: Service certificate

Ex. W2 :25-4-97: Service certificate

Ex. W3 ; 29-6-93 : Service certificate

Ex. W4 :26-6-92: Service certificate

Ex. W5 ; 10-8-88: Service certificate

Ex. W6:24-9-81: Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Dept., Hyderabad.

Ex. W7; 16-11-79: StaiTcircular No. 91 issued by General Manager (Operations) SBI Personnel Dept., Hyderabad.

FOR MANAGEMENT:

Ex.Ml: List of Ex. temporary employees who raised dispute before Asst. Labour Commissioner (Central), Visakhapatnam.

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 65 days during the crucial period. His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafidc breakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sees. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

Ex.M2: Settlement and judgments regarding rcgularisation of services of the temporary employees and casual employees.

Ex. M3: Details of list of candidates appointed who arc

alleged to be juniors to the petitioner.

(36) In support of his contention the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased be to held under Sec. 25F of the I.D. Act that:

"the termination of the services of the daily wages employes—Not in continuous service for 240 days— His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies

to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I sec no Merits in this application

New Delhi, the 17th October, 2001

S.O. 3046.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central (38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs.

Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Anncxure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/3/2001-IR(B-I)]

AJ AY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT VISAKHAPATANAM

PRESENT:

Sri K. Veerapu Naidu, B. Sc., B.L., Chairman &

Presiding Officer

Dated: 18th day of August, 2001

LT.LDNa(C) 22/99

BETWEEN:

Kapuganti Durga Prasad, S/o. Narayana Murthy, D. No. 19-4-6, Bankpeta, Kakinada ...Workman

(3) The petitioner worked an aggregate of 55 days in the year 1983, for 32 days in 1985, for 120 days in 1991, for 119 days in 1992, for 144 days in 1993, for 164 days in 1994, for 120 days in 1995, for one day in 1996 and for 59 days in the year 1997. He was terminated on 1-4-1997 without any notice. Copies of yearwise break up appointment of the petitioner is hereby field. The management used to maintain the panel of candidates to be appointed in temporary vacancies and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-1981 directing the temporary employees should not be engaged for more than 200 days in a Calendar year. The management did not follow the rule provided under Sec. 25G of the I.D. Act namely "last come first go". The retrenchment of the petitioner is only to accomodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20, .. .Management

This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocates for workman and Sri M. Ramdas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Peddapuram branch on 8-3 -83 in a permanent vacancy and he served at Different places till he was finally terminated at State Bank of India, Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A oJ the T.D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a cast of penal of candidates prepared as per the settlcmeni entered into between the management and the State Bant of India Staff Federation. The petitioner was engaged as { Temporary Messenger in State Bank of India Peddapuran in a leave vacancy. As per the settlement mentioned above the empanelled candidates were employed depending upoi the vacancies till 31-3-97 and juniors who are left over fron the empanelled list could not be accommodated for want o regular vacancies. It is false to allege that another persoi was appointed in the place of workman to get over th< administrative and legal difficulties. It is also false to alleg( that the workman was prevented from working for 200 day; to avoid legal and administrative difficulties so that ht would not reach the statutory period of 240 days which would give him a right to be regularised. The services ol the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-1997. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 19576428 THE GAZETTE OF INDIA NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC 3(U)] and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they arc as follows (0 Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975

(11) Category 'B', those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975

(ni) Category ' C\ those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1 -7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment m the management bank's service against vacancies likely to arise during the period 1987 to 1991

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as follows "persons, who have been engaged in casual basis [as defined in clause 1 l(n) hereunder] to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, Water Boys, Sweepers etc, for any of the periods mentioned in categoryL A', ' B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988to 1992"

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages (6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1 st settlement In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers There are 4 zones at Hyderabad, Vyayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zonewise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period l e 1-7-85 to 31 -7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently

7 In pursuance of the conciliation proceedings, a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagcrs-cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identitfy the messengenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-mcssengenal staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-1-97

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1 -7-75 to 31 -7-88 and as such, he has no nght to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlements 1 to 5 are binding on hini The management did not violate any of the terms of the settlements6429 (10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1-996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1 -1 -75 to 31 -7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lasped on 31-3-97 engaging their service for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 325 and he worked for 87 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days. 196 days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from servicing owing to lapse of panels prepared incompliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W4. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs, Ml to M2.

(17) Heard both sides.

(18) The points that arise for consideration are:

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act ?

(2) Whether the petitioner is entitled for reinstatement with back wages as prayed for ?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Peddapuram branch on 8-3-83 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 1-4-97, It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W3 and W4.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1 -4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of dairy wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 87 days during the relevant period from 1-7-85 to31-7-88. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be sleeted for want of vacancies and the seniors were given priority. Therefore, it is not a cast of retrenchment and that the workman has not worked6430 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC. 3 (ii)] for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I.D. Act.

(21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed tp serve for more than 240 days in a year in view of the circulars Exs. W4 and W5 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex. W4 is a circular dated 16th November, 1997, Ex, W5 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed,

(ii) They be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W5 that:

(a) No temporary employee should be allowed, under any circumstances, to 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W4 is another circular dated 24th Sept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 oralittle later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25- B or Sec. 25F of the I. D. Act The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 73 between Employers in relation to the Digwadth Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows:

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." Their lordships observed that the service for 240 days in a period of 12 calendar months equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25-B( 1).

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockput or a cession of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec. 25- B(2) reads as follows:

"Where a workman is not in continuous service within the meaning of Clause (1) 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 not less than—

0) 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) for a period of six months, if the workman during a period of six calendar months preceding the date6431 legitimate rights and that the management indulged in methods amounting to unfair labour practice

with reference to which calculation is to be made, has actually worked under the employer for not less than—

(I) ninety-five days, m the case of a workman

employed below ground in a mine, and

(II) one hundred and twenty days, if any other

case"

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(28) As already observed above, the meaning of

continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a y ear shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as contained in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appeanng for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list Ex W3 at serial No 3708 He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regulansation of the temporary/casual employees The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workmen is lhat the termination of the petitioner, as alleged by him, is illegal

(29) Even applying the above said decision to this case, the workman did not complete 240 days service conl inuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar > ear because of the periodical termination made by the respondent

(30) The learned counsel appearing for the

(33) The learned counsel appearing for the workman contends lhat in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under the contract Labour Abolition, and Regulation Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise does not arise Any way. that aspect will be dealt separately at a later stage

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Suresh and others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec 25FofthcID Act

(31) The learned counsel appeanng for the workman submits lhat because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under E\s W4 and W5 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1983 and he is only a casual employee The circulars E\s W4 and W5 were issued in the y ears 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motiviated to depnve the workman from claiming their

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leavc vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the lea\ c vacancies The management placed E\ Ml statement showing the number of days the petitioner worked dunnf¹ the relevant period The petitioner worked lor 8/ da\s 3364 GI/2O01—96432 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC.3(ii)]

Documents marked for Management:

during the crucial period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide breakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention in the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the ID. Act that:

Ex. M l: List of Ex. Temporary Employees who raised dispute before Assistant Labour Commissioner (Central), Visakhapatnam.

Ex.M2: Printed book of Settlements and judgments regarding regularisation of services of the temporary employees and casual employees.

Ex. M3: Details of list of candidates appointed who are alleged to be juniors to the petitioner (By consent).

M fWfll, 17 ^*l"l<) 2001

W[M. 3047.—aflliiPl* falls 3rf*#m, 1947 (1947 m-\4) ?& qm 17fr>zx^wtf, Vsiq m*>\< nmftq ^ fa %3T^<*tfa%""i£ PwiJlUfif 3fa4*ltf %'"ffaT, 3T^*f • £f P i R 5 ° r i 3 f r a l P i sb

faiit;'i|r3flti1Pi"h3ifti4h

16-10-2001 ^FtTTTCT^T qT I

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I see no merits in the application.

(38) In the result, the petition is dismissed and Nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer Iti. XTCT-12014/4/2001-amfsTK (*ft-I)] New Delhi, the 17th October, 2001

S.O. 3047.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-120l4/4/2001-IR(B-D]

AJAY KUMAR, Desk Officer

ANNEXURE

APPENDIXOFEVIDENCE: WITNESSES EXAMINED :

For Workman, WW1 : K, DurgaPrasad

For Management :Sri C.R. M. Sastry

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISAKHAPATNAM PRESENT:

Documents marked for workman:

ExWl : 23-1-92 : Service Certificate

Ex.W2 : 254-97 : Service Certificate

Ex.W3 : Service Certificate

Sri K, Veerapu Naidu, B. Sc, B.L., Chairman & Presiding Officer

Dated: 18th day of August, 2001

LT.LD(C)No. 24/99

BETWEEN:

Ex.W4 : 24-9-81: Staff Circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

E\.W5 16-11-79: Staff Circular No, 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Palepu Ramakrishna

S/o. Vcnkata Krishna Rao, D. No. 19-4-6, Bankpcta, Kakinada, East Godavari DisL ...Workman6433 AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) ThcDy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. .. .Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M Sarveswara Rao, advocate for workman and Sri M. Ramadas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Ravulapalcm branch in the year 1987 m a permanent vacancy and he served at different place till he was finally terminated at State Bank of India Ravulapalem East Godavari District The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year

(3) The petitioner worked in the respondent bank for 647 days from 1987 to 1997 with breaks and he was terminated on 1-4-97 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period A list of jumor candidate whose services arc absorbed is filed The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 240 days in a calendar year. The management did not follow the rule provided under Sec. 25G ofthe ID. Act namely "last come first go". The retrenchment ofthe petitioner is only to accommodate another employee. The management was paying Rs. 90 per day at the time of retrenchment, Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff Federation. The petitioner was engaged as a Messenger in State Bank of India Ravulapalem branch in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 1 -3-97 and juniors who are left over from the empencllcd list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working foi 200 days to avoid legal and administrative difficulties so that he would not reach the 'statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-1997. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18( 1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are as follows:

(i) Category *A', those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(ii) Category *B\ those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Category *C\ those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1 -7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likelv to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1 st settlement dated 17-11 -87 The 3 rd6434 THE GAZETTE OF INDIA NOVEMBER 10,2001/KAKTIKA19,1923 [PARTII—SFC 3(II)1 settlement is entered into between the same parties on 27-10-88 as per said settlement a Clause 1-Aafter Clause 1 in the first settlement is installed and it is as follows

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the mcsscngcnal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panelfor temporary employees after effecting conversion from fully time non-messcngenal staflf in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31 -3-97

"persons, who have been engaged in casual basis [as defined in clause 1 l(n) hercunder] to work in leave/casual vacancies of Messengers, Farrashes, Cash Coolhes, Water Boys, Sweepers etc , for any of the periods mentioned m category' A', 'B', and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992"

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages

(9) The \acancics as agreed upto by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put m less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlements 1 to 5 arc binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may anse in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the cases of temporary emplo>ccs and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1 st settlement In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers There are 4 ^ones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared /oncwisc separately for messengers and non- messengers in the descending order of temporary service put in by the candidates during the stipulated period I e 1-7-85 to 31 -7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption of temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently

(12) It is further pleaded that the temporary service rendered during the penod from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement Since the panels were already lapsed on 31-3-97 engaging their services for subsequent penod does not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being (7) In pursuance of the conciliation proceedings settlement was again entered mto between the same parties on 30-7-% it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagcrs-cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse6435 considered for appointment of permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W3 and W4.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1 -4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of dairy wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 74 days during the relevant period from 1-7-97 to 31-7-98. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I.D. Act. (14) It is false to allege that thejuniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 471 and he worked for 74 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period, It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from serving owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed

by the 2nd respondent.

(21) I will deal with the first contention raised by the counsel for workman i.e., that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W3 and W4 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex. W3 is a circular dated 16th November, 1997, Ex. W4 is the circular dated 16th November, 1979 whereunder the following facilities arc extended to the temporary employees who completed 270 days during the period from 1 st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them:

(16) Onbehalfof the workman, the workman is examined as WW1 and got marked Exs. Wl to W4. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is cxamii"d as MW1 and got marked Exs. Ml to M3.

(17) Heard both sides.

(18) The points that arise for consideration arc:

(1) Whether the petitioner was retrenched in

violation of Sec. 25F of the I. D. Act ?

(2) Whether the petitioner is entitled for

reinstatement with back wages as prayed for ?

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days, temporary service in 12 calendar months, have been absorbed.

(ii) They be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temporary employees.

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Paddapuram branch on 1987 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India, Main Branch, Kakinada6436 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC. 3 (ii)] (22) It is further instructed in Ex. W4 that ;

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extent instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) E\.W3 isanothercirculardated24thSept,1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25B or Sec. 25F of the 1. D. Act. The learned counsel appearing for the workman also further contends that Sec. 25B, clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deejned to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 15 between Employers in relation to the Digwadih Colliery Vs. Their Workmen, wherein their Lordships were placed to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows:

"Though Sec 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." Their Lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25-B(l).

"25B(1) : a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including services, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman.''

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec. 25B(2) reads as follows:

"Where a workman is not in continuous service within the meaning of clause (1) 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 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) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

0) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case."

(26) In the above said decision, their Lordships have considered the service of the workman worked for more than 240 days in each calendar year though with same interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman. Whatever it may be, those settlements are only with regard to the regularisation of the temporary/casual employees. The point before me is not with regard to the regularisation of the services of the petitioner and others. The case of the workman is that the termination of the petitioner, as alleged by him, is illegal.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the workman is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis, Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity- Board Vs. Surcsh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25Fof the I.D. Act. (31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W3 and W4 and the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1983 and he is only a casual employee. The circulars Exs, W3 and W4 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 74 days during the crucial period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide breaks attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the I.D. Act that:

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff federation and the management (as containtcd in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioner and others could not got selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management.

"the termination of the services of the daily wages employees—Not in continuous service for 2406438 THE GAZETTE OF INDIA; NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEc.3(ii)] days—His verbal termination of services—docs not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec, 25F of the I. D. Act. Therefore, I sec no merits in this application.

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

New Delhi, the 17th October, 2001

S.O. 3048—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/5/2001-IR(B-D] AJAY KUMAR, Desk Officer

ANNEXURE

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K VEERAPU NAIDU, Presiding Officer INTHE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATANAM PRESENT:

APPENDIX OFEVTOENCE:

Sri K. Veerapu Naidu, B. Sc., B.L., Chairman & WITNESSES EXAMINED FOR

Presiding Officer

Workman: Management:

WW1: P. RamaKrishna MW1 Sri C.R.M. Sastry Dated; 18th day of August, 2001

LT.I.D(C)No. 25/99

Documents marked For Workman:

BETWEEN:

Ex. W l: 19-3-86: Service Certificate

Ex. W2 :31-7-89; Service Certificate

Ex. W3:24-9-81: StaffcircularNo, 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Ex. W4:16-ll-79: Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Chinna Immanuel Raju, S/o. Babulu, D.No. 19-1-6, Bankpcta, Kakinada.

..Workman

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

Documents marked for Management

Ex.Ml: List of Ex. temporary employees who raised dispute before Asst. Labour Commissioner (Central), Visakhapatnam.

Ex.M2: Settlements and judgments regarding rcgularisation of services of the temporary employees and casual employees.

Ex.M3 : Details of list of candidates appointed who are alleged to be juniors to the petitioner.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20.,, Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocates for workman and Sri M. Ramadas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec, 2A(2) of th.e Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India, Main Branch Kakinada in the year 1988 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Main Branch, Kakinada.

The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regulansation on the ground that he worked more than 240 days in a year

(3) The petitioner worked in the respondent bank for 991 days from 1988 to 1997 and he was terminated on 1-4-97 without any notice Copies of ycarwise break up appointment of the petitioner is hereby filed The management used to maintain the pane] of candidates to be appointed on temporary posts and the petitioner was also a member in that panel Several juniors are appointed ignoring the petitioner's seniority The petitioners post is a permanent in nature and he worked for a long penod A list of junior candidate whose services arc absorbed is filed The petitioner also gave his application seeking for permanent employment but it was not considered The management issued a staff circular No 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a calendar year The management did not follow the rule provided under Sec 25G of the ID Act namely "last come first go" The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs 90/- per day at the time of retrenchment Hence this application

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec 2 A of the ID Act as this is not a case of discharge or dismissal, retrenchment or termination of service While it is a case of penal of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff of Federation The petitioner was engaged as a Temporary Meassenger in State Bank of India Main Branch, Kakinada in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empenelled list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory penod of 240 days which would give him a right to be regularised The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner It is false to allege that the services of the petitioner were terminated from M-1997 In fact, the management did not have the need to employ the workman from 31-3-97 onwards It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec 2(p) read with Section 10(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) 3364QI/2001—10

Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties As per I he 1 si settlement 3 categories A, B and C and the\ are as followi (I) Catcgorv 'A', those, who have completed 240 days temporary service in 12 months or less aftu 1-7-75

(n) Category ' B\ Those, who have completed 270 days aggregate temporary service in anv continuous block of 36 calendar months after 1-7-1975

Cm) Category ' C\ Those, who have completed a minimum of 30 days aggregate temporary service in anv calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in anv continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed thai the temporary emplo>ees as categorised above would be given chance for being considered for permanent appointment in the management banks service against vacancies likely to arise during the penod 1987 to 1991

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies hkclv to anse from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1 si settlement dated 17-11 -87 The 3 rd settlement is entered into between the same panties on 27-10-88 as per the said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as following

"persons, who have been engaged in casual basis (as defined in clause 1 l(n) hereundcr) to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, water Boys, sweepers etc , for any of the penods mentioned in category 'A', B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likclv to arise from 1988 to 1992"

Therefore, the casual/daily wagers were also to be considered for permanent absorption al ong with the tempora rv employees who are also drawing scale wages

(6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the cases ol temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1 st settlement In other w ords separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies ansing between 1988 to 1994 in respect of temporary employees and lor filling up of the vacancies ansing between the v cars 1 lW6440 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PARTII—SEC.3(ii)l to 1996 in respect of casual/daily wagers. There are2 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zoncwise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1 -7-85 to 31 -7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption of temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) Tn pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereundcr it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentify the messengerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messcngerial staffin the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1 -7-75 to 31 -7-88 and as SUCH, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlements 1 to 5 are binding on him. The management did not violate any of the terms of the settlements,

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank,

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1 -1 -75 to 31 -7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31-3-97 engaging their services for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 242 and he worked for 45 days only during the relevant period between 1-7-75 to 31 -7-88 while the last candidate absorbed in the list'worked for 77 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days,and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is6441 false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W5. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs, Ml to M3.

(17) Heard both sides

(18) The points that arise for consideration are:

(1) Whether the petitioner was retrenched in violation of Sec 25F of the I. D. Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Pcddapuram branch on 8-3-83 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank oflndia. Main Branch, Kakinada without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs W4 and W5

(20) On the other hand, the counsel appearing for I he management contends that thepctitioner never worked for more than 240 days in any calendar year much less 12 months preceding to M-97, the alleged date of termination. II is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1 -' U a nd 30-10-96 entered into between the State Bank of India Federation and the management and the Memorandum of understanding dated 27-2-97, the panels ofdaiK wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 87 days during the relevant period from 1-7-85 to 31-7-88. It is also further contended that the workman also appeared for interview in view of the said sei t loments and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I D. Act.

(21)1 will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W4 and W5 issued by the General Manager (Operations), State Bank oflndia, Hyderabad. Ex. W4 is a circular dated 16th November. 1997, Ex.W5 is the circular dated 16th November, 1979 whereundcr the following facilities are extended to the temporary employees who completed 270 days during the period from 1 si July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them.

(I) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected tcmporaiy employees viz, those who have pul in 240 days temporary service in 12 calender months, have been absorbed.

(ii) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary' employees.

(22) It is further instructed in Ex. W5 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year

(b) Those, who have completed 270 da>s temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us (c) Under the circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex. W6 is another circular dated 24th Sept .1981 whereundcr it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little laici should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more man 240 days in a calendar year. Therefore, the workman could not work for6442 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PARTII—SEC, 3(ii)] (ii) two hundred and forty days, in any other

case,

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for and not less than—

(i) for ninety-five days, in the case of a workman employed below ground in a mine; and

more than 240 day s so as to seek the shelter under Sec. 25B or Sec. 25F of the I D. Act. The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous sen ice and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25B of the T. D Act and it is as follows:

(ii) one hundred and twenty days, in any other

case."

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these."

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise.

Their lordships observed that the service for 240 .l.is s in a period of 12 calendar months is equal not only to i>u\ ice for a year but is to be deemed continuous service tven if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B( 1).

(28) As already observed above, the meaning of continuous service was given in the above said judgment, The total working days were 240 days in the above said judgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service¹ irrespective of the interruptions or any break of service,

"25B(1) : a workman shall be said to be in continuous service, for a period if he is, for that period, in un-intcrrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work A\hich is not due to any fault on the part of the workman. '*

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed 10 be "continuous service" under an employer, Sec. 25- B(2) reads as follows:

(30) The learned counsel appearing for the "Where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer—

management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(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 not less than—

(31) The learned counsel appearing for Uie workman submits that because he is not provided with any work he could not be also to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W4 and W5 the workman was not (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and6443 allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1988 and he is only a casual employee The circulars E\s W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motrviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3 -97 and thereafter they are not taking anyone on temporary basis in the leave vacancies The management placed E\ Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 45 davs dunng the crucial period His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of mala fide brcakes attributable to the management The workman in this case is not in continuous service of 240 davs as required under Sec 25F and 25B of the I D Act Hence the petitioner cannot ask for reinstatement

(36) In support of lus contention in the management's counsel placed reliance on a Division BcnCh decision of Rajasthan High Court reported in 1994 LAB I C 1376 between Pali Central Cooperative Bank Ltd, Pali Vs Suml Kumar Sharma wherein their Lordships of the Rajasthan High Court were pleased to held under Sec 25FoflhcI D Act that

"the termination of the services oflhc daily wages employees—Not in continuous service for 240 dav s—His v crbal termination of services—does not violate Sec 25F"

Therefore, the above said decision squareiv applies

to the case on hand

(32) It is further contended by the w orkman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as containtcd in E\ M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not gel selection The counsel appearing for the w orkman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary employees and certain guidelines were given and that the employ ees oflhc list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regulation of the temporary/casual employees The point before me is at with regard to the regulansalion of the service of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25F of the I D Act Therefore, I sec no merits in the application

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs

Dictated to sleno transcribed by her given under m\ hand and seal of the court this the 18th day of August 2001

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of Ihc petitioner cannot be terminated It is also further contended that the management in order to employ labour under the Contract Labour Abolition, and Regulation Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming

K VEERAPU NAIDU, Presiding Officer

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Workman For Management

WW1 Ch ImmanuelRaju MW1 SnCRMSasirv

DOCUMENTS MARKED

FOR WORKMAN:

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctnnc of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Suresh and Others etc reported in AIR 1990 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31 -3-97 and his ser\ ices were retrenched without following the procedure contemplated under Sec 25FoftheID Act

E\ Wl 19-7-% Service Certificate6444 THE GAZETTE OF TNDTA .NOVEMBER 10,2001/KARTIKA 19,1923 [PAR i II—St-r. T(ii)] Ex, W2:254-97 : Service Certificate

Ex. W3:64-92 : Panel List

Dated: 18th day of August. 2001

LTXD(QNo. 26/99

BETWEEN:

Ex. W4:24-9-81 : SiaffCircularNo. 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad.

Ex. W5 :16-11-79 : StaffCircular No. 91 issued by General Manager (Operations) SBI Personnel Dcpt., Hyderabad.

Puthukula Neelkanteswara Rao,

S/o Subba Rao, D. No. 19-4-6, Bankpota, Kakinada, East Godavari Dist, .. Workman

AND

FOR MANAGEMENT:

Ex. M l: List of Ex. temporary employees who raised dispute before Asstt. Labour Commissioner (Central), Visakhapatnam.

Ex.M2: Settlements and Judgments regarding regularisation of service of the temporary employees and casual employees.

Ex. M3 : Details of list of candidates appointed who are alleged to be juniors to the petitioner.

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. ...Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M. Ramdas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

New Delhi, the 17th October, 2001

S.O. 3049.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

(No. L-12014/6/2001-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATANAM (1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages,

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India A.D. branch, Poddapuram on 12-3-79 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Poddapuram branch. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year,

PRESENT:

Sri K. Veerapu Naidu, B. Sc., B.L., Chairman & Presiding Officer

(3) The petitioner worked in the respondent bank for 471 days from 1979 to 1997 with breakes and he was terminated on 14-97 without any notice. Copies of yearwisc break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his aplication seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 240 days in a calendar year, The management6445 did not follow the rule provided under Sec. 25G of the ID. Act, namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90 per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank and State Bank of India Staff Federation. The petitioner was engaged as a Messenger in State Bank of India Peddapuram branch in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 1-3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-1997. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 18( 1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are as follows;

(i) Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category 'B', Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Categories ' C, Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1 -7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management ban's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1A after clause 1 in the first settlement is installed and it is as follows:

"persons, who have been engaged in casual basis las defined in clause 11 (ii) hereundcr] to work in leave/casual vacancies of Messengers, Farrashcs, or Cash Coolies, Water Boys, Sweepers etc., for any of the periods mentioned in categories 'A', 'B', and kC in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992 "

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 m the last settlement. In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arisingbetween 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers. There are 4 Zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zonewise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period i e. 1 -7-85 to 31 -7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) In pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers-cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentify the messcngerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengcnal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full timcnon-massengerial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97.

(9) The vacancies as agreed upto by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put iit less than 240 days in a continuous 12 months period from 1 -7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlement 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. There after the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31 -3-97 engaging their service for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment of permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 309 and he worked for 89 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexurc to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services arc unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from serving owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W6. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MWl.and got marked Exs Ml to M3.

(17) Heard both sides

(18) The points that arise for consideration arc:

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act'> (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, A D Branch, Peddapuram on 12-3-79 in a permanent vacancy and he was continued in service at various places will his services were finally terminated at State Bank of India Peddapuram branch without any notice from 1-4-97 It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of tw o circulars issued by the management Exs W5 and W6

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97 the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 89 davs during the relevant period from 1 -7-77 to 31 -7-88 It is also contended that the w orkman also appeared for inten lew in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case as retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec 25FoftheID Act

(21) I will deal with the first contention raised bv the counsel for workman / e that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs W5 and W6 issued by the General Manager (Operations), State Bank of India, Hyderabad Ex W4 is a circular dated 16th November, 1997, Ex W6 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them

(I) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later be absorbed in the existing regular vacancies in subordinate cadre, if anv subject to their being otherwise eligible and found suitable in an interview This would, however be subject to the constraints of reservation of vacancies for 3364GI/2001—11

644' SC/ST candidates and after protected temporary employees viz these w ho run e pul in 240 days temporary service m 12 attend " months have been absorbed

(u) They be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temper in employees

(22) It is further instructed in Ex W6that

(a) No temporary employee should be alkn < • under any circumstances to cross q0 cl n s temporary service in a year

(b) Those who have completed 270 davs temporary service as abo\ e and ha\ e been re engaged against regular temporary \ acanuts in terms of our extent instructions should not be allowed to exceed 240 davs in 12 calendar months without prior reference to us (c) Under no circumstances, candidates who do not meet the required stipulations in regard to age/educational qualifications should be offered temporary/permanent appointment (23) Ex W5 is another circular dated 2 +th September 1981 whereunder it is instructed that the temporary employees who have completed 270 davs aggregate sen ice or more during the period from 1 7-1972 to W-6-197S ora little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months

(24) The learned counsel appearing foi the workman contends that because of the above said two circulars the workman was not allowed to work more than 240 days in < calendar year Therefore, the workman could not work id more than 240 days so as to seek the shelter undcr Sec 25-P or Sec 25FoftheI D Act The learned counsel appearing for the workman also further contends that sec 2^BchuSv (I) where a workman was not allowed to woik due to no fault on his part, he shall be deemed to be in COUIUHK I< service and m support of his contention ho p! see J • Ji •'in on a decision of the Apex Court reported in AIR 1 *>C> E' 7 •> between Employers in relation to the Digi i lih r\ 11u_ t > i' Their workman wherein their Lordships wv4.pL ibtd to give the meaning of the expression contiti'u n<: v n u c for not less than one year under Sec 251" n/id with ^ec ^ li of the I D Act and it is as follows

Though Sec 25F speaks ol ituHumous scn'u, for not less than one year under 0K. t. irp'ov -i the workman has actually wot led lor 2 JO div, during the period of 12 calcnd u i ioi ih? bothtlu. conditions arc fulfilled < * utm .^rsUiJi.J service is necesojjj if truvlonl-.^' v-isZl) Kn6448 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KARTTKA19,1923 [PART II—SEC. 3(h)] in a period of 12 calendar months cither before these several changes or after these." Their Lordships observed that the service for 240 dnys in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

L¹25B(1) : a workman shall be paid to be in continuous service, for a period if he is, for that period, in uninterrupted service, including senice, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockput or a cessation of work which is not due to any fault on the part of the workman "

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec. 25-B(2) reads as follows:

"Where a workman is not in continuous service within the meaning of clause (1) for a period of one year of 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 not less than—

(I) one hundred and ninety days in the case of a workman employed below ground in a mine: and

(u) two hundred and forty days, in any other case,

(b) for a period of six months, if the workman during a period of six calendar months preceding t'c date with reference to which calculation is to be n ide, has actually worked under the employer ano for not less than—

(0 ninety-five days, in the case of a workman employed below ground m a mine; and (u) one hundred and twenty days, in any otk • case."

(26) In the above said decision, their Lordships hav, considered the service of the workman worked for mort than 240 days in each calendar year though with some interruptions

(27) Therefore, trie learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgment with some interruptions. Therefore, their Lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as "continuous service" irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W5 and W6 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1983 and he is only a casual employee. The circulars Exs W5 and W6 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff federation and the management (as containted in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel6449 list. He also admitted that Staff Association and the management entered into agreements for regularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc not binding on the workman. Whatever it may be, those settlements are only with regard to the regularisation of the temporary/casual employees. The point before me is not with regard to the rcgularisation of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

Central Cooperative Bank Ltd., Pali Vs Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for ihe I.D. Act that "the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—docs not violate Sec. 25."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the 1. D. Act. Therefore, I sec no merits in the application.

(38) In the result, the petition is dismissed and nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs Dictated to stcno, transcribed by her, given under my hand and seal ofthc court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Workman . For Management • WW1 . K. Ncelkanteswar Rao MWJ • C.R M. Saslry DOCUMENTS MARKED

FOR WORKMAN:

(34) This contention has no force because it is not the case of the management that in the petitioner's place some else is employed on contract basis. Therefore, (he doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Har\ ana Stale Electricity Board Vs. Suresh and others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in a year preceding to 31 -3 -97 and his services were retrenched without following the procedure contemplated under Sec. 25FoftheI.D Act

Ex. W l: Service certificate

Ex. W2 • 18-1-93 • Service certificate

Ex. W3 .20-11-96 Service certificate

Ex_W4 25-11-91 Panel list

Ex. W5.24-9-81 • Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad

Ex W6 • 16-11-79 • Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad

DOCUMENTS MARKED FOR MANAGEMENT:

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31 -3 -97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 89 days during the crucial period. His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide breaks attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the I.D. Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C. 1570 between Pali Ex Ml. List of Ex. temporary employees who raised dispute before Asst. Labour Commissioner (Central), Visakhapatnam.

ExM2- Settlements and Judgments regarding regularisation of service of the temporary employees and casual employees

Ex. M3 . Details of list of candidates appointed who are alleged to be juniors to the petitioner.

New Delhi, the 17th October, 2001 S.O. 3050 —In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Gov ernmenf hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Anncxure in the Industrial Dispute between the employers in relation to the management of State Bank of Indi \ and their workman, which was received by the Central Government on 16-10-2001

[No L-12014/7/200 l-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT, VISAKHAPATNAM PkhSr N r

Sri K Veerapu Naidu, B Sc , B L , Chairman and Presiding Officer

Dated 18th dav of August, 2001 I.T.l.D(C)No. 27/99

ULTWtEN

Pasagafh Mihcwaia Rao S/o A.\\ababu, D No 19 4 6, Baakpeta, ¥ ikmaJa F.isl GodavanDist —Workman

AND

{1) 1 he Chief General Manager,

State Bank of India, Local Head Office, Bank Street, rhderabad

,2) fheDv General Manager, ^t-rtc Bank of India. Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 Management Tbi>. application coming on for final hearing before iiu in the piesence of Sri M Surjanarayana and Sri M Sir*es"aia Rao, advocate for workman and Sri M Ramdas, Advocate for Management Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following

AWARD

(1) This is an application filed under Sec 2A(2)of the Industrial Disputes Act, 1947 for reinstatement with back wages

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Kothakota branch in the year 1985 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Zonal Branch The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regulansation on the ground that he worked more than 240 days in a year

(3) The petitioner worked m the respondent bank for 544 days from 1985 to 1997 with breakes and he was terminated on 1-4-97 without any notice Copies of yearwise break up appointment of the petitioner is hereby filed The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel Several juniors are appointed ignoring the petitioner's seniority The petitioners post is a permanent in nature and he worked for a long period A list of junior candidates whose services are absorbed is filed The petitioner also gave his application seeking for permanent emplov ment but it was not considered The management issued a staff circular No 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a calendar year The management did not follow the rule provided under Sec 25G of the I D Act namely "last come first go" The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs 90/- per day at the time of retrenchment Hence this application is rejected

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec 2A of the I D Act as this is not a case of discharge or dismissal, retrenchment or termination of services While it is a case of panel of candidates prepared as per the settlement entered into between the management State Bank and State of India Staff Federation The petitioner w as engaged as a Messenger in State Bank of India, Kothakota branch in a leave vacancy As per the settlement mentioned abo\ e, the empanelled candidates w ere emplo) ed depending upon the vacancies till 1-3-97 and juniors who are left over from the empenelled list could not be accommodated for w ant of regular v acancies It is false to allege that another person w as appointed in the place of w orkman to get ov er the administrate e and legal difficulties It is also false to allege that the workman was prevented from working for6451 appointment in the bank's service against vacancies likely to arise from 1988 to 1992."

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

200 days to aboid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a nght to be regularised The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-1997. In fact, the management did not have the need to employ the workman from 31-3-97 onwards It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and iL is the 1st settlement Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they arc as follows .

(i) Category 'A', Those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(ii) Category "B\ Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(6) The 4lh settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepared for temporary employees and casual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/ daily wagers There arc 4 /.ones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zoncwisc separately for messengers and non- messcngers in the decending order of temporary service put in by the candidates during the stipulated period i.c 1-7-85 to 31-7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the Bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Ccntial) conducted conciliation proceedings on 9-6-96 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees are daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(iii) Category C • Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1 -7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(7) In pursuance of conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and therca-flcr the said panels would lapse (5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as following .

"Persons, who have been engaged in casual basis fas defined in clause ll(ii) hcrcunder] to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, Water Boys, Sweepers etc., for any of the periods mentioned in categories 'A', "B\ and 'C in Clause 1 will be given a chance for being considered for permanent

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentify the messengenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messcngcrial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messengcrial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both6452 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] the panels of tcmproary employees and daily wagers/causal labours would lapse on 31-3-97.

(9) The vacancies as agreed upto by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlements 1 to 5 arc binding on him. The management did not violate any of the terms of the settlement

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no calaim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement. Since the panels were already lapsed on 31 -3-97 engaging their services for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis, But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post which he worked was permanent in nature. The seniority position of this workman was 289 and he worked for 92 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, and 200 days respectively The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services arc unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from serving owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WWl and got marked Exs. Wl to W7. On behalf of the management, the Chief Manager Personnel, Hyderabad in the Slate Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml toM3.

(17) Heard both sides.

(18) The points that arise for consideration are :

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Kothakota branch in the year 1985 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Zonal Branch, Kakinada without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W6 and W7.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 setUcments dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 92 days during the relevant period from 1-7-97 to 31-7-98. It is also contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I.D. Act (21) I will deal with the first contention raised by the counsel for workman i e., that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W6 and W7 issued by the General Manager (Operations), State Bank of India, Hyderabad Ex.W6 is a circular dated 16th November, 1997, Ex.W7 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days' temporary service in 12 calender months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W7 that.

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year

(b) Those, who have completed 270 days temporary service as above and have been engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W6 is another circular dated 24th Sept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calender year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25-B or Sec. 25Fof the I. D. Act. The learned counsel appearing for the workman also further contends that Sec. 25-B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadeh Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows :

"Though S 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled. No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before those several changes or after these " Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that6454 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)l period, in un-interruptcd service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec. 25- B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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 proceeding the date with reference to which calculation is to be made, he actually worked under the employer not less than—

(i) one hundred and ninety days in the case of a workman employed below ground in a mine, an

(ii) two hundred and forty days, in any other case,

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

(l) ninety-five days, in the case of a workman employed below ground in a mine, and (ii) one hundred and twenty days, in any other case."

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service (29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise docs not arise. Any way, that aspect will be dealt separately at a later stage

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a > car and he also further contends that because of the circular issued by the management under E\s W6 and W7 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1985 and he is only a casual employee. The circulars Exs. W6 and W7 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that (hose circulars were motiviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods to unfair labour practice

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as conlainted in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto ^ 1 -VJ7 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman m his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered mlo agreements for rcgulansation of the tcmpoiary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Siaff Association and (he management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc not binding on the workman Whatever it may be, those settlements arc only with regard (o the rcgulansalion of the lemporary/casunl employees The6455 point before me is not with regard to the regularisation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition, and Regulation) Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming

(34) The contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID. Act. (35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 92 days during the crucial period His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there arc no particulars of mala fide breakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the I.D. Act. Hence the petitioner cannot ask for reinstatement

(36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pah Central Cooperative Bank Ltd., Pali Vs. Suml Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F of the ID. Act that:

"the termination of the services of the daily wages employes—Not in continuous service for 240 days— His verbal termination of services—does not violate Sec. 25F."

3364GI/20O1—12

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I D Act Therefore, I sec no Merits in the application

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order ,is to costs and each party is directed to bear its own costs Dictated to steno transcribed by her gi\en under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE : WITNESSES EXAMINED : FOR

WORKMAN: MANAGEMENT WW1 R. Maheshwar Rao MW1 Sr C R M Saslrv Document marked for workman :

Ex. Wl : 12-5-94 Service certificate

Ex. W2 • Service certificate

Ex. W3 : • Service certificate

Ex. W4 : . Service certificate

Ex. W5 . 25-11-91: Panel List

Ex. W6 . 24-9-81 . Staff circular No. 91 issued by General Manager (Operations) SB1 Peisonncl Department, Hyderabad

Ex. W7 :16-11-79 .Staffcircular No. 91 issued b\ General Manager (Operations) SBI Pet sound Department, H\dcrabad

DOCUMENT MARKED FOR MANAGEMENT :

Ex. Ml : List of Ex-Temporary employees who raised dispute before Assistant Labour CommisMonci (Central), Visakhapatnam

Ex. M2 . Settlement and judgments regarding regulansation of services of ihe temporal emplo} ces and casual cmplo\ ees

E\ M3 Details of list of candidates appointed w ho arc alleged to be juniors to the petitioners6456 THE GAZETTE OF INDIA • NOVEMBER 10. 2001/KARTIKA 19, 1923 |PAR: [I—SF,r 3 (n)j New Delhi, the 17th October, 2001 S.O. 3051—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Anncxure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001,

[No. L-12014/8/2001-IR(B-I)J

AJAY KUMAR, Desk Officer (2) The case of the petitioner is thai he was appointed as Messenger in the State Bank of India. Pedapadu branch on 16-5-85 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Treasury Branch Kakinada The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim rcgularisation on the ground that he worked more than 240 days "n a year.

(3) The petitioner worked in the respondent bank

ANNEXURE

THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT VISAKHAPATNAM PRESENT :

Sri K Veerapu Naidu, B Sc , B L., Chairman & Presiding Officer

Dated : 18th day of August, 2001 I.T.I.D No, (C) 28/99

BETWEEN :

Kada Satyavathi, W/o Knshana, D. No 19-4-6, Bankpele, Kakinada, East Godavari Dist. .. Workman AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. ...Management This application coming on for final hearing before me in the prcsenctbf Sri M Suryanarayana and Sri M •Sarveswara Rao, advocates for workman and Sri M. R/imdns, Advocate for Management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

for 374 days from 1985 to 1997 and fie was terminated on 1-4-97 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a calandar year. The management did not follow the rule provided under Sec. 25F of the I.D. Act namely "last come first go" The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application

AWARD

(!) This is an application filed under Sec. 2 A(2) of the Industrial Disputes Act, 1947 for reinstatement with brvk wiges

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank and Slate Bank of India Staff Federation. The petitioner was engaged as a Mcassenger in State Bank of India Pedapadu branch in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 1-3-97 and juniors who are left over from the empenelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 220 days to aboid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from6457 1-4-1997. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec 2(p) read with Section 10(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they are a follows .

(i) Category 'A': those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(li) Category 'B'. Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975

(in) Category ' C\ Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1 -7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1 si settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as follows "persons, who have been engaged in casual basis |as defined in clause ll(ii) hcrcundcr] to work in leave/casual vacancies of Messengers, Karrashcs, Cash Collies, water Boys, Sweepers etc , for any of the periods mentioned in category 'A', ' B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992 " Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who arc also drawing scale wages (6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement In other words separate panels were piepared for temporary employees and casual/daily wagers for filling up of tlic vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/ daily wagers. There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zoncwise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31-7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the Bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employes arc daily wagers/casual labour will be kept alive upto March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) In pursuance of the conciliation proceeding¹, ;J settlement was entered into between Lhe same puti^s on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and dailv wagers cum casual employees will be kept alive upln 1947 filling the vacancies existing arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagcrs/rnsu.il employees and thereafter the said panels would laps.c (8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the mcsscngenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 mcsscngenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-mcsscngerial staff in the usual manner Therefore, an agreement was entered on 30-7-96 Uiai both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97

(9) The vacancies as agreed upto by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days Ihan those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he lias put in less than 240 days in a continuous6458 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] 12 monihs period from 1-7-75 to 31-7-88 and as such, he has no i ight to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlements 1 to 5 arc binding on him. The management did not violate any of the terms of the settlement

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining qr left over candidates are no claim whatsoever for being considered for permanent absorption in the bank.

of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from servicing owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed

by the 2nd respondent.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W3 On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. M l t o M 3.

(17) Heard both sides.

(18) The points that arise for consideration arc :

(1) Whether the petitioner was retrenched in violation of Sec 25F of the I. D. Act ?

(2) Whether the petitioner is entitled for (\2) It is further pleaded that the temporary service iL.i>ducd dunng the period from 1-1-75 to 31-7-88 is only lo be t.ikcn for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement. Since the panels were already lapsed on 31 -3-97 engaging their service for subsequent period docs not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- lunpoury employees m the panels were absorbed on the basis of seniority.

reinstatement with back wages as prayed for?

(13) It is further pleaded that as per the settlement i cached between the Staff Federation and the management the panel of temporary employees who worked upto S1-7-SS was prepared for giving a chance for being considered for appointment on permanent basis, But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Pedapadu branch on 16-5-85 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Treasury Branch, Kakinada without any notice from 1-4-97 It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W2 and W3.

U4) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this \\ orkman was 196 and he worked for 59 6 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 77 days during the relevant period It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for (he interview Having availed the opportunity as per the cmpanclmcnt it is estopped from questioning the validity

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the Stale Bank of India Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto6459 December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 77 days whereas the petitioner worked only for 59 days during the relevant period from 1-7-97 to 31-7-98. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be elected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID. Act. (21)1 will deal with the first contention raised by the counsel for workman i.e., the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W2 and W3 issued by the General Manager (operations), State Bank of India, Hyderabad. Ex.W2 is a circular dated 16th November, 1997 Ex. W3 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex W3 that.

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year

(b) Those, who have completed 270 days temporary' service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W2 is another circular dated 24th Sept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calender year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec. 25F of the I D. Act. The learned counsel appearing for the workman also further contends that Sec. 25-B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled

No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these."

Their lordships observed that the service for 240 days in a period of 12 calendar months equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec 25B(1).

"25-B(l) a workman shall be said to be in continuous service, for a period if he is, for that period, in un-intcrruptcd service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not6460 THE GAZETTE OF INDIA NOVEMBER 10, 2001/KARTIKA 19, 1923 |PART II—SEr 3 (li)] due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec 25- B(2) reads as follows

"Where a workman is not in continuous service within the meaning of Clause (1) 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 not less than—

could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs W2 and W3 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service m the year 1985 and he is only a casual employee The circulars Exs W4 and W5 were issued in the years 1979 and 1981 andthc> were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motiviated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(I) ninety five days in the case of a workman

employed below ground in a mine, an

(n) one hundred and twenty days, in any other

case,

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the SlaffFederation and the management (as contained in E\ M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the rcgulansation of the temporary/casual employees The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under the Contract Labour Abolition, and Regulation Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming (30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise does not arise Any way, that aspect will be dealt separately at a later stage

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Har>ana State (31) The learned counsel appearing for the workman submits that because he is not provided with any work he6461

APPENDIX OF EVIDENCE : WITNESSES :

EXAMINED : FOR

FOR WORKMAN : FOR MANAGEMENT

WW1 K Satyawati MW1 Sr C.R.M Sastry

Documents marked for workman :

Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID. Act.

Ex. Wl • 10-6-96 : Service certificate.

Ex. W2 • 24-9-81. Staff Circular No. 91 issued by General Manager (Operations) for Personnel Department, Hyderabad.

Ex. W3 . Staff Circular No. 91 issued by General Manager (Operations) SB1 Personnel Department, Hyderabad

DOCUMENTS MARKED FOR MANAGEMENT :

Ex Ml . List of Ex-Temporary employees who raised dispute before Assistant Labour Commissioner (Central), Visakhapatnam.

Ex. M2 : Settlement and judgments regarding regularisation of services of the temporary employees and casual employees.

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 59.6 days during the crucial period. Hjs services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide brcakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

Ex. M3 . Details of list of candidates appointed who arc

alleged to be juniors to the petitioner.

•^ 'ft^ft, 17 ^"K1*K, 2001

^IT.OT. 3052.—3?|lJrfil"h faqrc; 3TMWT, 1947 (1947

^T 14) ^ "rnr 17 % *I^-H

WMl ?£l 16-10-2001 ^ W^S $3TT "TT I "the termination of the services of the daily wages employee—Not in continuous service for 240 days— His verbal termination of services—doernot violate Sec. 25F."

[*T. TRT-12014/9/2001 -ST^aTR ( # - I )] Therefore, the above said decision squarely applies

to the case on hand.

New Delhi, the 17th October, 2001 (37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25Fof the I. D. Act. Therefore, I see no merits in this application.

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs

S.O. 3052.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexurc in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/9/2001-IR(B-I)] . Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

AJAY KUMAR, Desk Officer K. VEERAPU NAIDU, Presiding Officer6462 THE GAZETTE OF INDIA : NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)]

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT : VISAKHAPATNAM

PRESENT:

Sri K. Vecrapu Naidu, B.Sc, B.L, Chairman &

Presiding Officer

Dalcd • 18th day of August, 2001

LT.I.D(C) 29/99

BETWEEN :

Pamunkada Devadass

S/o. Mutyam D. No 19-4-6, Bankpeta, Kakinada ...Workman

terminated on 1-4-97 without any notice. Copies of ycarwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioner's post is a permanent in nature and he worked for long period. As list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No 91dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a calendar year The management did not follow the rule provided under Sec. 25G of the I.D. Act namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs 90/- per day at the time of retrenchment. Hence this application.

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 Management

This application coming on for final hearing before me in the presence of Sri M Suryanarayana and Sri M. Sarvcswara Rao, advocates for workman and Sri M. Ramdas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed Ihc following .

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India, Kothapcta branch on 16-5-88 in a permanent vacancy and he served at different places till he was finally terminated at Stale Bank or India, Poduru Paka branch East Godavan District. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim rcgulansation on the ground that he worked more than 240 days in a year

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While il is a case of penal of candidates prepared as per the settlement entered into between the management and the Stale Bank of India Staff Federation. The petitioner was engaged as a Temporary Messenger in State Bank of India Kothapeta branch in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who arc left over from the empanelled list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege thai the services of the petitioner were terminated from 1-4-97. In fact, the management did not have the need to employ the workman from 31-3-97 onwards It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and il is the 1st settlement Second settlement is dated 16-7-88 between the same parties. As per the 1 st settlement 3 categories A, B and C and they are as follows •

(3) The petitioner worked in the respondent bank for 213 days from 1988 to 1997 with breakes and he was (i) Category 'A', Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

646^ (ii) Category 'B', Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Category ' C, Those, who have completed a

of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels,of the selected candidates as well as the casual/daily wagers were prepared zonewise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period I c 1-7-85 to 31-7-88, The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption of temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived ;it between the Federation and the management bank \\ herein it was agreed that both the panels of temporary employee!) and daily wagers/casual labour will be kept alive upto March, 1997 and the vacancies will be filled from both the lists concurrently.

minimum of 30 days aggregate temporary service

in any calendar year after 1-7-75 or minimum of

70 days aggregate temporary service in any

continuous block of 36 calendar months after

1-7-75. In this first settlement, it was agreed that

the temporary employees as categorised above

would be given chance for being considered for

permanent appointment in the management

bank's service against vacancies likely to arise

during the period 1987 to 1991.

7. In pursuance of the conciliation proceedings settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereundcr it was agreed that both the panels of temporary employees and daiK wagers-cum -casual employees will be kept ah\ c upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the jcar 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse (5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as follows :

"persons, who have been engaged in casual basis

[as defined in clause 11 (ii) hereunder] to work in

leave/casual vacancies of Messengers, Farrashcs,

Cash Coolies, Water Boys, Sweepers etc., for any

of the periods mentioned in category 'A', 'B' and

'C in Clause 1 will be given a chance for being

considered for permanent appointment in the bank's

service against vacancies likely to arise from 1988

to 1992."

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the messengerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-mcssengenal staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31-3-97.

Therefore, casual/daily wagers were also to be considered

for permanent absorption along with the temporary

employees who are also drawing scale wages.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner w as considered i n the sell lenient s 1 to 5 referred above and his case h.T\c not conic iif Tor consideration The settlements 1 to 5 arc binding on l.im The management did not violate any of the terms ol the settlements.

(6) The 4th settlement was entered into between

the same parties on 9-1-91 extending the benefit to the

cases of temporary employees and casual/daily wagers

separately in the vacancies likely to anse upto 1994 and

1995-96 respectively, which was also agreed to substitute

the year 1992 with 1994 in the 1st settlement, In other

words separate panels were prepared for temporary

employees and casual/daily wagers for filling up of the

vacancies arising between 1988 to 1994 in respect of

temporary employees and for filling up of the vacancies

arising between the years 1995 to 1996 in respect of

casual/daily wagers. There are 4 zones at Hyderabad,

Vijayawada, Visakhapatnam and Tirupathi covering all

the districts in Andhra Pradesh and the local head office

3364 G1/2001—13

(10) It is further pleaded that as per the settlement dated 9-1-91 uis agreed between the parties that vncani ics arisen upto December. 1994 wil] be filled from l')89p;ind6464 THE GAZETTE OF INDIA . NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(12) It is further pleaded th.H the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of davs working subsequent to this period are not counted as per the agreement Since the panels were already lapsed on 3 1-3-97 engaging their service for subsequent period docs not arise It is further pleaded that as per ihc settlements 1 to 5 the vacancies have been identified and the ex- temporary cmplo>ccs in the panels were absorbed on Ihc basis of seniority

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the Management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature The seniority position of this workman was 264 and he worked for 38 7 days only during the relevant period between 1-7-75 lo 31-7-88 while the last candidate absorbed in the list worked for 77 days during the relevant period It is false lo allege that the settlemcni entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as pur the CP'panclmcnt it is estopped from questioning the validity o. the settlements With regard lo the list of candidates set out in the annexure lo the claim statement it is submitted that all Ihc 7 candidates were senior to the workman and they worked for 241 days, 276 days, 179 days. 220 days, 179 days. 19b days and 200 days respectively. The circular daled 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees b\ the branches in the instances where their services arc unwarranted It is false lo allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing lo lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent adopted the counter filed by ihc 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs Wl to W7 On behalf of the management, the ChicfManagcr, Personnel, Hyderabad in the Stale Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs Ml toM3.

(17) Heard both sides

(18) The points that arise for consideration arc • (1) Whether the petitioner was retrenched in violation of Sec 25FofthcI. D Act'' (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for v

(19) The learned counsel appearing for the petitioner contends thai the petitioner was initially appointed as a Messenger in the State Bank of India. Kothapeta branch on 16-5-88 in a permanent vacancy and he was continued in service at various places till his services were finallv terminated at Slalc Bank of India Pondunipaka branch without any notice from 1-4-97. It is further contended that the management deprived him lo serve for 240 days in a particular year in order to disentitle him lo claim a regular appointment because of two circulars issued by the management Exs. W6 and W7.

(20) On the other hand, the counsel appearing for the management contends that ihc petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged dale of termination It is also the furiher contention Hint by virtue or the 5 settlements daled 17-11-87, K.-7-S8, 17-IO-8X, 9-1 -91 nnd 30-10-96 entered into between the State Bank of India Slaff Federation and the Management and the Memorandum of understanding daled 27-2-97, Ihc panels ofdaily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which mav arise in 1995 and uplo December, 1996 and thereafter the said panel lapsed and the petitioner is nol a senior and the last man oul of Ihc empanelled list have worked lor 77 days whereas Ihc petitioner worked only for 38 7 days during the relevant period from 1-7-97 lo 31-7-KK II is also contended thai Ihc workman also appeared for interview in view of the6465 said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID. Act (21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W6 and W7 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex.W6 is a circular dated 16th November, 1997, Ex.W7 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(ii) They be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W7 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W6 is another circular dated 24th Sept, 1981 where under it is instructed that the temporary employees \A ho have completed 270 days aggregate service or more timing") ' period from 1-7-1972 (o 30-6-1975 or a little later shouiu i be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec 25Fof the I. D. Act. The learned counsel appear^ ror the workman also further contends that Sec. 25B clau • 1) where a workman was not allowed to work, due lo n. II on his part, he shall be deemed to be in continuous . "vice and in support of his contention he placed reliance on a decision of the apex court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec 25-BoftheI. D Act and it is as follows :

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." Their lordships observed that the service-for 240 days in a penod of 12 calendar months equal not.only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) : A workman shall be paid to be in continuous service, for a period if he is, for that period, in un-interrupted service, including service, which may '>e interrupted on account or sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due > any fault on the part of the workman sliall be deemed to be "continuous service" under an employer. Sec 25- B(2) reads as follows:

"Where a workman is not in continuous service within ihc meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer—

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherw lse does not arise Any way, that aspect will be dealt separately at a later stage

(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 not less than—

(I) one hundred and ninety days in the case of a workman employed below ground in a mine, and

(n) two hundred and forty days, in any other

case,

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer and for less than—

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous serv ice and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs W4 and W5 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1983 and he is only a casual employee The circulars Exs W6 and W7 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate nghts and that the management indulged in methods amounting to unfair labour practice (1) ninety-five days, i n the case of a workman

employed below ground in a mine, and

(n) one hundred and twenty days, in any other

case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has \o application for ihc reason that the workman in this case hdvc not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(28) ^s already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total penod worked in a year shall be taken into consideration to treat it as 'continuous service' in cspective of the interruptions or any break of service

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as contained in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regularised on of the temporary/casual employees The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be (29) Even applying thevbove said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as W W1 admitted that he did not work for 240 days in a calendar year because of the periodical termination nndc bv ihc respondent6467 (38) In the result, the petition is dismissed and Nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs. terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

WORKMAN: MANAGEMENT

WW1 P. Davadas MW1 Sri C. R. M.Sastry.

Document marked for workman :

(34) This contention has no force because it is not the case of the management that in the petitioner's place some else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID. Act.

Ex. Wl : 8-8-88 . Service Certificate

Ex. W2 : 27-11-95 Service Certificate

Ex W3 : 26-7-89 : Service Certificate

Ex. W4 : 2-5-97 : Service Certificate

Ex. W5 6-4-92 . Panel List.

Ex, W6 : 24-9-81 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Ex. W7 : 16-11-79: Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

DOCUMENTS MARKED FOR MANAGEMENT :

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 38 7 days during the crucial period His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there arc no particulars of mala fide breakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec 25F and 25B of the ID Act Hence the petitioner cannot ask for reinstatement.

Ex Ml List of Ex-Temporary Employees who raised dispute before Assistant Labour Commissioner (Central), Visakhapatnam.

Ex. M2 : Settlement and Judgments regarding rcgulansation of services of the temporary employees and casual employees.

Ex. M3 Details of list of candidates appointed who arc alleged to be juniors to the petitioner.

(36) In support of his contention in the management's counsel place reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I.C 1370 between Pali Central Cooperative Bank Ltd., Vali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25Fofthc I D. Act that

"the termination of the services of the daily wages employe—Not in continuous service for 240 days— His verbal termination of services—docs not violate Sec 25F"

Therefore, the above said decision squarely applies

to the case on hand

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I sec no Merits in ihis application.

New Delhi, the 17th October, 2001 S.O. 3053.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexurc in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

|No. L-12014/10/2001-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISAKHAPATNAM at State Bank of India Treasury Branch Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim rcgularisation on the ground that he worked more than 240 days in a year.

PRESENT:

Sri K Veerapu Naidu, B. Sc, B.L., Chairman & Presiding Officer

Dated : 18th day of August, 2001 I.T.I.D(C)No. 30/99

BETWEEN :

... Workman Jods Kiran Prakash China Babu, s/o Ramakrishana,. D. No. 19-4-6, Bankpeta, Kakinada.

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 , Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocates for workman and Sri M. Ramdas, Advocate for Management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

(3) The petitioner worked in the respondent bank for 270 days from 1980 to 1993 and he was terminated on 1-4-97 without any notice. Copies of yearwisc break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors arc appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered The management issued a staff circular No. 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec. 25F of the I.D. Act. namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Pcdapadu branch on 16-5-85 in a permanent vacancy and he served at different places till he was finally terminated <4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the I.D Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank of India and Stale of India Staff Federation. The petitioner was engaged as a Meassenger in State Bank of India Samarlakotha branch in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the cmpcncUed list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from the year 1993, In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the6469 management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act. 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are as follows

(I) Category 'A'¹ Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975

1 to 5 referred above, and his case have not come up for consideration The settlements 1 to 5 are binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(12) It is further pleaded that the temporary service rendered during the penod from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement Since the panels were already lapsed on 31-3-97 engaging their service for subsequent period does not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(14) It is false to allege that the juniors to the workman arc appointment ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature The seniority position of this workman was 404 and he worked for 79 da\s only during the relevant penod between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 dajs during the relevant period It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as per the empanclment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure to the claim statement is submitted that all the 7 candidates were seniors to the workman and they worked for 240 days, 276 days, 179 days, 220 days, 179 days, and 196 days and 200 respectively The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted It is false to allege that there is violation of rules in making appointment to permanent basis The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs Wl to W5 On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs Ml toM3

(17) Heard both sides

(18) The points that arise for consideration are (1) Whether the petitioner was retrenched in violation of Sec 25FofthcI D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Samarlakota branch in the year 1980 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India, Samarlakota branch, Kakinada without any notice from 1993 It is further-contended that the management deprived him to serve for 240 days in a particular > ear in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs W4 and W5 (20) On the other hand, the counsel appearing for the management contends that the petitioner never w orked for more than 240 days in anv calendar year much less 12 months preceding to the alleged date of termination It is also the further contention that by \irtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which nw arise in 1995 and upto December, 1996 and thereafter the said panel lapsed6471 to age/educational qualifications, should be offered temporary/permanent appointment and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 79 days during the relevant periodfrom 1-7-97 to 31-7-98, It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has

. ">t worked for more than 240 days and as such he cannot

swim into the harbour of Sec. 25F of the ID. Act.

(23) Ex W4 is another circular dated 24lh Sept, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess or 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(21) I will deal with the first contention raised by the counsel for workman i.e., that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W4 and W5 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex. W4 is a circular dated 16th November, 1997 Ex. W5 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec. 25F of the I D. Act. The learned counsel appearing for the workman also further contends that Sec 25-B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadih Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows :

"Though S 25F of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suiitablc in an interview, This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these."

(li) They" be allowed relaxation in age and educational qualification on the same linces as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W5 that:

Their Lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous sen ice even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec 25B(1).

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

"25B(1) : a workman shall be said to be in continuous service, for a period if he is, for that period, in un-interruptcd service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard

(25) The learned counsel for workman contends that even if there was any interruption in the service of the 3364GI/2001—146472 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (li)] workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec 25- B(2) reads as follows

"Where a workman is not in continuous service within the meaning of Clause (1) 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 dale with reference to which calculation is to be made, has actually worked under the employer not less than —

(i) one hundred and ninety days in the case of ;i vvniMn ui employed below ground in a mine, mid

(n) two hundred and forty days, in any other case,

(hi >< I period of six months, if the workman, during a period of si^ calendar months preceding the date with reference lo which calculation is to be made, has actually worked under the employer for not less than—

(i) ninety live d:iys, in the case of a workman ¹ i oyed helovv ground in a mine; and (n) OIK liundtcd and twenty days, in any other case,

(26) In the above said decision, their Lordships have considered the service of the vvorkman worked for more than 240 days in cadi calendar vcar though with some mlcrruptions

(27) Therefore, the learned counsel appearing for the management submits (hat the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to Ihc alleged retrenchment cither with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment willi some interruptions Thcrclorc, their Lordships observed that even there were some interruptions the tolal period worked in a year shall be taken mlo consideration lo Ireat it as 'continuous .service' irrcspecli\e of the interruptions or any break of service (29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on c^ual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he cnuld not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W4 and W5 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1980 and he is only a casual employee. The circulars Exs W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were moliviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the Staff Federation and the management (as containted in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31 -3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for rcgulansalion of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Sta IT Association and the management arc not binding on the workman Whatever it may be, those settlements arc only with regard to the6473 regularisation of the temporary/casual employees. The point before me is not with regard to the regulansation of the services of the petitioner and others. The case of the workman is that the termination of the petitioner, as alleged by him is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour Abolition and Regulation Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming (34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Surcsh and others etc. reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID Act. (35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 79 days during the crucial period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafidc breaks attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention in the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C, 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the I.D. Act that.

"the termination of the services of the daily wages employes—Not in continuous service for 240 days— His verbal termination of services—does not violate Sec. 25F"

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25FoftheI D. Act. Therefore, I sec no merits in this application

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs Dictated to stcno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE : WITNESSES EXAMINED : FOR

WORKMAN: MANAGEMENT

WWI JKP Chinna Babu MW1 S r . C RM Sastry.

Documents marked for workman :

Ex Wl- 17-8-89 • Service certificate.

Ex. W2 • 30-4-97 • Service Certificate

Ex W3- 25-11-91- Panel List

E x W 4: 24-9-81 • Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Ex W5 : 16-11-79 : Staff Circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

DOCUMENT MARKED FOR MANAGEMENT :

Ex Ml List of Ex-Temporary employees who raised dispute before Assistant Labour Commissi jner (Central), Visakhapatnam.

Ex. M2 . Settlements and judgments regarding regularisation of service of the temporary employees and casual employees

Ex. M3 : Details of list of candidates appointed who arc alleged to be juniors to the petitioners.

M Ramdas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire mate- rial on record, the court passed the following:

AWARD

New Delhi, the 17th October, 2001 S.O. 3054.—In pursuance of Section 17 of the In- dustrial Dispute Act, 1947 (14 of 1947), the Central Gov- ernment hereby publishes the award of the Industrial Tri- bunal cum Labour Court, Visakhapatnam as shown in the Anncxure in the Industrial Dispute between the em- ployers in relation to the management of State Bank of India and their workman, which was received by the Cen- tral Government on 16-10-2001

[No. L-12014/11/2001 -IR(B-I)]

AJAY KUMAR, Desk Officer (1) This is an application filed under Sec.2 A (2) of the Industrial Disputes Act, 1947 for reinstatement with backwages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Samarlakota branch on 1 1.86 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Samarlakota Branch. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim rcgularisation on the ground that he worked more than 240 days in a year.

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISHAKHAPATNAM PRESENT:

Sri K. Vccrapu Naidu, B Sc, B.L, Chairman & Presiding Officer

Dated- 18lh day of August, 2001 I.T.I. D. (C) 31/99

BETWEEN

Ijjana Nagaraju, S/o Pothuraju, 19-4-6, Bankpcta, Kakinada.

...Workman

AND

1. The Chief General Manager

Slate Bank of India, Local Head Office, Bank Street, Hyderabad

2. The Dv General Manager,

Slate Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 .. Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Shri M. Sarvcswara Rao, advocates for workman and Sri (3) The petitioner worked in the respondent bank for 291 days from 1986 to 1997 and he was terminated on 1.4.97 without any notice. Copies of ycarwisc break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also member in that panel. Several juniors arc appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services arc absorbed is filed The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff cir- cular No. 91 dated 24.9.91 directing the temporary em- ployees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec 25Gofthc ID Act namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management pay- ing Rs 90 per day at the lime of retrenchment Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the ID. Act, as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of panel of candidates prepared as per the settlement entered into between the management State Bank of India and Stale Bank of India Staff Federation. The petitioner was engaged as a Messenger in Slate Bank of India, Samarlakota branch in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31/* 97 and juniors who arc left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties It is also false to allege that the workman was prevented from working for6475 in the bank's service against vacancies likely to arise from 1988 to 1992,"

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-97. In fact, the management did not have the need to employ the workman from 31 -3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2 (p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are as follows:

(i) Category 'A': Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category 'B': Those, who have completed 270 days aggregate temporary services in any con- tinuous block of 36 calendar months after 1-7-1975.

6. The 4th settlement was entere into between the same parties on 9-1-1991 extending the benefit to the cases of temporary emoloyees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepared for temporary em- ployees and casual/daily Wagers for filling up of the va- cancies arising between 1988 to 1994 in respect of tem- porary employees and for filling up of the vacancies aris- ing between the years 1995 to 1996 in respect of Casual/ daily wagers. There are 4 zones at Hyderabad, Vijaya- wada, Visakhapatnam and Tirupathi covering all the dis- tricts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candi- dates as well as the casual/daily wagers were prepared zonewisc separately for messengers and Non-messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31 -7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or tem- porary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/ca- sual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(iii) Category' C: Those who have completed a mini- mum of 30 days aggregate temporary service in any calendar year after 1-7-1975 or minimum of 70 days aggregate temporary service in any con- tinuous block of 36 calendar months after 1-7-75. In this first settlement it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

7, In pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers/cum -casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd. settlement is entered into between the same parties on 27-10-1988 as per the said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as follows:

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the messengerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion full time non-messcngerial staff in the usual manner.

"persons, who have been engaged in casual basis (as defined in clause 11 (ii) hereunder) to work in leave/casual vacancies of Messengers, Farrashes, Cash Coolies, Water Boys, Sweepers etc., for any of the periods mentioned in category ' A " B' and 'C in Clause 1 will be given a chance for being considered for permanent appointment6476 THE GAZETTE OF INDIA : NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels, The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlements to 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank,

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31-3-97 engaging their service for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the StaffFederation and the management the panel of temporary employees who worked up to 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 373 and he worked for 82 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis, The petitioner is not entitled to any prior notice, before he was discontinued from servicing owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W5. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml to M3.

(17) Heard both sides.

(18) The points that arise for consideration are :

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act. (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for.

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Samarlakota Branch on 1-1-86 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Samarlakota without any notice from 1-4-97. It is further contended that the management deprived him to service for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W4 and W5.

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W4 is another circular dated 24th Sept, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 82 days during the relevant period from 1-1-97 to 31-7-98. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be sleeted for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID Act

(21)1 will deal with the first contention raised by the counsel for workman I.C that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W4 and W5 issued by the General Manager (Operations), Stale Bank of India, Hyderabad. Ex W4 is a circular dated 16th November, 1997, Ex.W5 is the circular dated 16lh November, 1979 whercunder the following facilities arc extended to the temporary employees who completed 270 days during the period from 1st July 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec. 25F of the I. D. Act. The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employees in relation to the Digwadch Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows:

"Though S 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." (I ) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees \u., those who have put in 240 days temporary service in 12 calender months, have been absorbed

(li) They be allowed relaxation m age and as educational qualification on the same lines as has been allowed to the protected temporary employees

Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1)

(22) It is further instructed in E\ W5 that

"25-B(l) . a workman shall be said to be in continuous service, for a period if he is, for that period, ln-untcrrupled service, including service, (a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year6478 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockput or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer, Sec. 25- B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine, and (ii) one hundred and twenty days, in any other case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W4 and W5 and the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1986 and he is only a casual employee. The circulars Exs. W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motiviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the Staff Federation and the management (as containtcd in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc not binding on the workman. Whatever it may be, those settlements are only with regard to the regularisation of the temporary/casual employees. The point before me is not with regard to the regularisation of6479 the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming

Therefore, the above said decision square!) applies to the case on hand

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25FoftheI D Act Therefore, I see no Merits in this application

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs Dictated to steno transcribed by her given under my hand and seal ot ih& court this the 18th day of August, 2001

K VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR WORKMAN :WW1 1 NAGA RAJU FOR MANAGEMENT : MWl SRI Cf R M SASTRY DOCUMENTS MARKED FOR WORKMAN :

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Suresh and others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec 25FoftheID Act (35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3 -97 and thereafter they are not taking any one on temporary basis in the leave vacancies The management placed Ex Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 82 days during the crucial period His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner Therefore, as rightly contended b> the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide breakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec 25Fand 25Bof the 1 D Act Hence the petitioner cannot ask for reinstatement (36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I C 1370 between Pah Central Cooperative Bank Ltd, Pah Vs Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec 25F of the I D Act that

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—docs not violate Sec 25F "

3364GI/2001—15

E\ Wl 18-8-89 Service Certificate

Ex W2 10-4-97 Service Certificate

Ex W3 25-11-91 Panel List

Ex W4 24-9-81 Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad E\ W5 16-11-89 Statf circular No 91 issued b\

General Mariager (Operations) SBI Personnel Dept. Hyderabad DOCUMENTS MARKED FOR MANAGEMENT :

Ex Ml List of Ex temporary cmplovccs who raised dispute before As§t Labour Commissioner (Central), Visakhapatnam

Ex M2 Settlement and Judgments regarding rcgulansation of ".cmccs of the temporary employees and casual employees

Ex M3 Details of list of candidates appointed who arc alleged to be juniors to I he pensioners6480 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] New Delhi, the 17th October, 2001 S.O. 3055.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No.-12014/12/2001-IR(B-I)J

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATANAM he served at different places till he was finally terminated at State Bank of India, Main branches, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

PRESENT:

Sri K. Veerapu Naidu, B. Sc, B.L., Chairman & Presiding Officer

Dated : 18th day of August, 2001

I.T.I.D (Q No. 32/99

BETWEEN :

Kuniganti Venkata Satya Prasad, S/o. Sattiraju, R/o. Tilak Chowk, Dasarivari Street, Sam0rlakota. R. G. Dist.

...Workman

AND

•{ 1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam—20. .Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocates for workman and Sri M. Ramdas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

(3) The petitioner worked in the respondent bank for 1055 days from 1987 to 1997 with breakes and he was terminated on in the year 1997 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidate whose services arc absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No, 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calander year. The management did not follow the rule provided under Sec. 25F of the I.D. Act. namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India Main branch, Kakinada on 1-5-87 in a permanent vacancy and (4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank of India and the State Bank of India StaffFederation. The petitioner was engaged as a Messenger in State Bank of India Main Branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors whose are left over from the empenelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules, Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1997 In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was6481 arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement, Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they arc as follows •

(i) Categories ' A' : Those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(ii) Categories 'B' : Those, who have completed 270 • days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Categories 'C . Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as follows :

"persons, who have been engaged in casual basis [as defined in clause Il(ii) hcreundcr] to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, Water Boys, Sweepers etc., for any of the periods mentioned in category 'A', 'B', and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992," Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepared for temporan employees and casual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/ daily wagers. There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zonewisc separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) In pursuance of the conciliation proceedings a settlement was again entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/ casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the messcngerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messcngerial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank.

The case of 'he petitioner was considered in the settlements 1 to 5 referred nbovo and has case have not come up for consideration The settlements 1 to 5 are being on him The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per (he settlement d.ited 9-1-91 n is agreed between the parties that vacancies arisen upto December, 1994 will be Filled from 19X9 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates are no claim whatsoever for being considered for permanent absorption in the bank.

set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-81 has no relevant as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent adopted the counter filed

by the 2nd respondent.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W7. On behalf of the management, the Chief Manager, Personnel in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml to M3

(17) Heard both sides.

(18) The points that arise for consideration are .

(1) Whether the petitioner was retrenched in

violation of Sec. 25F of the I. D Act? (12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement Since the panels were already lapsed on 11-3-97 engaging their services for subsequent period docs not ansc It is further pleaded that as per the settlements 1 to ^ the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority

(2) Whether the petitioner is entitled for reinstatement with back wages as prayed for⁹ ( n) II is further pleaded that as per the settlement reached between the StattTcdcration and the management the panel of temporary employees who worked upto 11-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the Stale Bank of India, Main branch Kakinada on 1-5-87 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 1-4-97 It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs W6 and W7.

(14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature The seniority position of this workman was 648 and he worked for 36 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period It is false to allege thai the settlement entered into between the All India Bank of India Staff Federation and the Management is illegal and not binding on I he workman The workman appeared for the inten IOW as pet the settlement and if he is accepted he would have raised an objection before appearing for (lie interview Having availed the opportunity as per the empanelmcnl it is estopped from questioning the validity of the settlements With regard to the list of candidates

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1 -91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of Understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of6483 (23) Ex.W6 is another circular dated 24th Sept., 1981 whercundcr it is instrucied that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

the empanelled list have worked for 97 days whereas the petitioner worked only for 36 days dunng the relevant period from 1-7-75 to 31-7-88 It is also contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID. Act.

(21) I will deal with the first contention raised by the counsel for workman i c that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs W6 and W7 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex.W6 is a circular dated 16th November, 1997, Ex,W7 is the circular dated 16th November, 1979 whereundcr the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them ;

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25B or Sec. 25F of the I. D. Act The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs. Their workmen, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25B of the I D. Act and it is as follows

"Though Sec. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled No uninterrupted service if necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." (I) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-85 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(ii) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

(22) It is further instructed in Ex. W7 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

"25B(1) a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, of a lockout or a cessation of work which is not due to any fault on the part of the workman." (b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation to work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec. 25B(2) reads as follows:

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

"Where a workman is not in continuous service within the meaning of Clause (1) 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, he actually worked under the employer 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) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer and for less than—

(i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above saiddccision has no application for the reasons that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent,

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contended that because of the circular issued by the management under Exs. W6 and W7 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1987 and he is only a casual employee. The circulars Exs. W6 and W7 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motiviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as contained in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman. Whatever it may be, those settlements arc only with regard to the rcgulansation of the temporary/casual employees. The point before me is not with regard to the rcgularisation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place ofthc petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition, and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming6485 (34) This contention has no force because it is not the case of the management that in the petitioner's place some else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Suresh and others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman >s that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec 25FoftheID Act

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR WORKMAN WW1 K V S PRASAD FOR MANAGEMENT MW1 C RM SASTRY DOCUMENTS MARKED

FOR WORKMAN

Ex Wl 6-8-88 Service certificate

Ex W2 14-9-91 Service certificate

Ex W3 1-7-96 Service certificate

Ex W4 25-4-97 Service certificate

Ex W5 25-11-91 Panellist

Ex W6 24-9-81 Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dcpt, Hyderabad Ex W7 16-11-79 Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad FOR MANAGEMENT:

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies The management placed Ex Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 36 days during the crucial period His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide brcakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec 25Fand25BoftheID Act Hence the petitioner cannot ask for reinstatement (36) In support of his contention the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I C 1370 between Pah Central Cooperative Bank Ltd, Pali Vs Sum! Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec 25F of the ID Act that

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec 25F"

Therefore, the above said decision squarely applies to the case on hand

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25FoftheI D Act Therefore, I see no Merits in the application

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs Dictated to steno transcribed by her given under my hand and seal "*f the court this the 18th day of August, 2001

K VEERAPU NAIDU, Presiding Officer Ex Ml List of Extemporary employees who raised dispute before Asst Labour Commissioner (Central), Visakhapatnam

Ex M2 Settlement and Judgments regarding rcgulansation of services of the temporary employees and casual employees

Ex M3 Details of list of candidates appointed who are alleged to be juniors to the petitioner New Delhi, the 17th October, 2001 S.O. 3056 —In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tnbunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001

[No L-12014/13/200 l-IR(B-I)]

AJAY KUMAR, Desk Officer6486 THE GAZETTE OF INDIA NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SI i (n)] ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISAKHAPATNAM PRESENT:

Sri K Vecrapu Naidu, B Sc , B L , Chairman & Presiding Officer

Dated 18th da> of August, 2001

I.T.LD(C) 33/'>9

BETWEEN :

Kusuma Prabhakara Rao,

S/o Bhushanam, 62-8-66, Gopalaknshna Nagar, J Ramaraopeta, Kaktnada-2 Workman AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Dank Street, Hyderabad

(2) The Dy General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 Management This application coming on for final hearing before me in the presence of Sri M Suryanarayana and Sn M Sarvcswara Rao, advocate for workman and Sn M Ramdas, advocate for management Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following juniors arc appointed ignoring the petitioner'? seniority The petitioners post is a permanent in nature and he worked for a long period A list of junior candidates wliose services arc absorbed is filed The petitioner also gave Ins application seeking for permanent employment but it was not considered The management issued a staff circular No 91 dated 24-9-1991 directing the temporary employees should not be engaged for more than 200 day s in a calendar year The management did not follow the rule provided under Sec 25F of the I D Act namely "last come first go" The retrenchment of the petitioner is onlv to accommodate another employee The management was paving Rs 90/- per day at the lime of retrenchment Hence this application

AWARD

(1) This is an application filed under Sec 2A(2)of the Industrial Disputes Act, 19**7 for reinstatement with back wages

(2) The case of the petitioner is that he was appointed as Messenger m the State Bank of India, main branch, Kakinada on 2-1-88 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Main Branch, Kakinada The management did not allow the workman to work more than 240 days in a year with a view to depnve him to claim rcgulansation on the ground that he worked more than 240 days in a >car

(3) The petitioner worked in the respondent bank for 1031 days from 1988 to 1997 with breakes and he was terminated on 1-4-97 without any notice Copies of ycarwise break up appointment of the petitioner is hereby filed The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel Several (4) The second respondent filed its counter pleading that this application is not maintainable under Sec 2A of the ID Act as this is not a case of discharge or dismissal, retrenchment or termination of sen ices While it is a case of penal of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff Federation The petitioner was engaged as a messenger in State Bank oflndia main branch Kakinada in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory penod of 240 days which would give him a right to be regularised The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner It is false to allege that the services of the petitioner were terminated from 1-4-97 In fact, the management did not have the need to employ the workman from 31 -3-97 onwards It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they are as follows

(i) Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975

(n) Category 'B', those, who have completed 270 days aggregate temporary service in any6487 continuous block of 36 calendar months after 1-7-1975

(in) Category ' C, those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1A after clause 1 in the first settlement is installed and it is as follow "Persons, who have beqn engaged in casual basis |as defined in clause 1 l(n) hcrcundcr] to work in leave/ casual vacancies of Messengers, Farrashcs, Cash Collies, Water Boys, Sweepers etc , for any of the periods mentioned in categories 'A' 'B⁷, and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992"

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who arc also drawing scale wages (6) The 4th settlement was cnicrcd into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in I he vacancies likely lo arise upto 1994 and 199*5-96 respectively which w.is also agreed to substitute the year 1992 with 1994 m the first settlement In other words scpar.ite panels were prepared for temporary employees and usual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the vcars 1995 to 1996 in respect of casual/daily wagers There arc 4 /ones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared /oncwise separately for messengers and non- messengers m the decendmg order oflcmporary service put in bv the candidates during the stipulated period i c 1-7-8^ to 11-7-88 The Federation approached the 3364GI/2001—16

Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be Filled from both the lists concurrently

(7) In pursuance of the conciliation proceedings, a settlement was again entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers-cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31- 12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse (8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the mcss;ngenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messcngcnal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-mcsscngcnal staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97

(9) The vacancies as agreed upon by the above said settlement and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1 -7-75 to 31 -7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlements 1 to 5 arc binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank6488 THE GAZETTE OF INDIA : NOVEMBER 10, 2DG I/KARTIKA 19 In? f.^ART B i- ^ <' . ~' Ift'sH (15) The 1st respondent adopted the counter ^fcc

by the 2nd respondent.

(11) G^MfiSg to the panel of daily wagers enlisted in 1992 patted \$ill be used for filling up the vacancies which may^Pfti in the years 1995 and 1996 and after December.-1096 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel -•-!" ha\e n'J'dlkkn whatsoever for Being considered for i>cr!n;indrif'Sbsvoi'ption in the bank.

r Of! rf[.C'!.< .

(16) On behalf of the workman, die workman is examined as WWi and got marked Exs. Wl to W6 T)n behalf of the management the Chief Manager, Personnel; Hyderabad in the State Bank of India Offtcev Visakhapatnam is examined as MW1 todgotimariaedExs; MS and!M2.

(J7)Heardbo^hsid|;s

(18) The points that arise.for conai,(Jcratipn,ars.

(1) Whether the-petitioner was retrcficned' in (121 iMftifther pteadedtharthe temporary sen'iee rendered dtiWrrg'the period from l'-l!-75 to31-^-88 is only •" he taker!ftSr'pWrftanentabsorption and number of days rk.ng subsequent to this period are not counted as per • uyr.emcnt; Since the'panels were already lapsed Bh - ' !" yagin^ their services for subsequent period does

violatron of Sec. 25F of the I. D" A; i.; <"-'!\" It is fti" .her pleaded that as per'ths settlerrients S to 5 vacancies "have been identified and the ex -temporary employees in the panels were absorbed on jytie8 basis of seniority •. .

f 13jr It is fu#her pleaded, that as per the settlement ranched betweegfctr|$ Staff Federation and. tlie management the panel of.jlgnjjxwary employees who worked upto 31-7-88 was prepared for giving a chance for being considered>forapp

(19) The learned counsel appearing tor the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, main branch Kakinada on 2-1-88 in a permanent vacancy and-he "was continued in service at various places till his service? were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 1-4-97 It is fiirther contended that the management deprived him to iemce for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued % the mariagefrierit Eks; W? sitd vt(6 "' ( U) It is false to allege that the juniors to the

(20) On the. other handvtheicpanse] appear^g-ifcr the management contends that the p&iticuRwieveftwor&ed for more than 240 days in ariy.eateiidar yceariBM*?h:fessW months preceding to 1-4-97. the. alleged date; .of termination. It is also the further contention- that by virtue of the 5 settlements .dated 17-41-87, 1^-7-88.; 1:7-10-88.. 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel \vilt be considered for filling up the vacancies which may arise in 19'95 and upto December, 1996 and thereafter the said panel lapsed and the petitioner Ls not a senior and the last man out of the empanelled list have vvorkeS for 97 days whereas'tfic petitioner worked only for 90 dais during the relevant periodfrom 1-7-85 to 31-7-88. It is also furthercbhtended that the workman also appeared for interview in view of ihe said settlements and could not be selected for" aht of vacancies and '.he seniors we're given pnenfy, Therefore. it is not a case of reti-erichrrl^JV;"di'H-; v> ;• vorkmari has not worked For'^ ^thai- ' ' '-••.,-,- =• mcb he cannot -.•-•r., .;:„ • .<•••'••> • \& ' ' .-, orkman aVe ar3]^inrte'd'ignoring the claim of the workman .;:.o his scmonW'and that the post in which he worked •,:s pcrnaaneni in nature The seniority position of this workman was,296 and he worked for 90 days only during :••*• rekvjnLpenod between 1-7-75 to 31-7-88 while the :-[ candidate absorbed in the list worked for 97 days G-,r,r,'j. xiv: relevant period It is false to allege that the soi.lcment entered into between the All India Bank of Fncia Staff Federation and the Management is illegal and io* binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted ne would have raised an objection before appearing for 1 tie interview Having availed the opportunity as per the •jmpanelnicnt it is estopped from questioning the validity <>f the settlements! With regard to the list of candidates set out in the annexure to the claim statement it is -ubiiitted thai all the 7 candidates were seniors to the H w i i fn and (hey worked for 241 days, 275 days. 179 "-:,ys. '220 . ;, 179 days, 196 days and 220 days '. bpectiveh '"I c circular dated 24-9-8! has no relevance >> if is on!" "- prevent indiscriminate continuation of Te'iffporarv -rvMoyces bv the Hitches i" -;>•<- •^ei,-pcr-<;

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, . ) • •! I hr6489 tbe following facilities are .extended to the temporary employees wh5y"rnpleted)27<>4aKsdunng the period from Itt July, 1972.td 30tltJun& 1*75 of a little later in the matter of absosptioe and the following facilities are extended to them.

(1) The temporary employees, who have worked in subordinate cadre, for 270 da>s or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview This would, however, be subject to the constraints of reservation of vacancies for SOST candidates and after protected temporary employees viz, those w ho have put in 240 days/temporary service in 12 calendar rhotttfts. havebeertabso-rfeed '

(u)(< T h e y^ a,llowp0 r,el^\at;on in age, and educational qualification on the same lines as lias been allov.cd to (he piokvicd temporary employees

,(22) It & further instructed in Ex W6 tha,tlt (a) " Mo tcrrfpo'r&ry employee should be allowed, tinder any eireirrfistaftices, to 90 davs tenipor&ry servacennavear <<

(b) , Th.pse,< wlnq have completed 270 days ^erflpor^rv service as^hcjvc^fld, hayp sheen ^ c ^ g a . g e d ,, against rcgujar,temporary , vacancies in terms of our extant instructions should not be allowed to execqd 240 days in 12 calendar months without prior reference to us

due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1%6 SC 75 between Employers in relation 1o the Digwadth Colliery Vs Their workman wherein their Lordships were pleased to give ther meaning ol the expression 'continuous service" for not less than one •> ear under Sec 25F read with Sec 25-BofthcI D Act and H is as follows

"Though S 25F speaks of continuous service for not less than one vear under the emplover if the workman has actually worked for 240 davs during the period of 12 calendar months both the conditions arc fulfilled No uninterrupted sen ice is neccssarv if the total serv ice is 240 da\ s in a period of 12 calendar months either before those scv eral changes or after these '

Their lordships observed that the sctvicc for 240 days in a period of 12 calendar months is equal not onh to service for a year but is to be deemed continuous sen i>_i even if interrupted To appreciate the above said dcciMOi. and the contention raised b> the counsel tor workman s¹ is essential to extract Sec 2SB(1)

"25-B(l) a workman shall be said ie h n continuous service for a period if he is for 'hat period, in uninterrupted service, mcluum scmce, which mav be interrupted on account < f sickness or authorised leave or an accident or a sJ4 t strike which is not illegal or a lockout or a cessation of work which is not due to am fault WS on the part of the workman "

VA25) The learned counsel for workman contends tint6490 THl 3AZETTE OF INDIA NOVEMBER 10, 2001/KART1KA 19, 1923 [PART II—SEC 3 (H)] made, has actually worked under the employer for not less than—

(0 ninety-five days, in the case of a workman

employed below ground in a mine, and

(u) one hundred and twenty days, in any other

case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as contained in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitions as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regulation of the temporary/casual employees The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of tho periodical termination made by the respondent

(32A) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under the Contract Labour Abolition and Regulation Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming (30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise does not arise Any way, that aspect will be dealt separately at a later stage

(33) This contentions has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Suresh and others etc reported in AIR 1998 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in a year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec 25FofthcID Act

(34) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31 -3 -97 and thereafter they are not taking any one on temporary basis in the leave vacancies The management placed Ex Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 90 days during the crucial period His services are disengaged as there is no continuous availability of leave (31) The learned counsel appearing for the workman submits that because he is no provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 2-"O days in a year and he also further contends that because of the circular issued by the management under Exs W5 and W6 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1983 and he is only a casual employee The circulars Exs W5 and W6 were issued in the years 1979 and 1981 and they were issued much earlier than tl^ date of joining of the workman in the service Thereft, e, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice6491 Ex W6 Staff circular No 91 issued b\ General Manager (Operations) SBI Personnel Department, Hyderabad

DOCUMENTS MARKED FOR MANAGEMENT

Ex Ml List of Ex-Temporary employees who raised dispute before Assistant Labour Commissioner (Central), Visakhapatnam

vacancies for engaging the services of the petitioner Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branchs, with breaks and there are no particulars of malaiide breakes attributable to the management The workman in this case is not a continuous service of 240 days as required under Sec 25Fand 25B of the 1 D Act Hence, the petitioner cannot ask for reinstatement

Ex M2 Settlement and judgments regarding regulansation of services of the temporary employees and casual employees

Ex M3 Details of list of candidates appointed who are

alleged to be juniors to the petitioners (35) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I C 1370 between Pali Central Co-operative Bank Ltd, Pah vs Sunil Kumar Sharma wherein their Lordships of the Rajasthan High Court were pleased to held under Sec 25FoflhcID Act that

"the termination of the service of the daily wages employees—Not in continuous service for 240 days His verbal termination of services—does not violate Sec. 25F"

Therefore, the above said decision squarely applies

to the case on hand.

(36) Thus, in the light of my aforesaid discussion the petitioner failed to establish that his case would fall under Sec. 25F of the ID. Act Therefore, I see no merits in the application.

New Delhi, the 17th October, 2001 (37) In the result, the petition is dismissed and ml Award is passed. However, there is no order as to costs and each party is directed to bear its own costs

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

S.O. 3057 —In pursuance of Section 17 of the Industnal Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal -cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industnal Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

K. VEERAPU NAIDU, Presiding Officer

[No. L-12014/14/2001-IR(B-I)]

AJAY KUMAR, Desk Officer APPENDIX OF EVIDENCE WITNESSES EXAMINED : FOR

ANNEXURE

WORKMAN: MANAGEMENT

IN THE COURT OF INDUSTRIAL TRIBUNAL WWlK.PrabhakarRao • MW1 Sr. C.R M. Sastry.

CUM-LABOUR COURT, VISAKHAPATNAM Documents marked for workman :

PRESENT:

Sri K Vcerapu Naidu, B Sc, B,L,, Chairman & Ex, Wl • 1-7-96 : Service certificate

Presiding Officer

Ex. W2 . 25-4-97 : Service certificate.

Dated . 18th day of August, 2001 Ex. W3 : 11-8-88 : Service certificate,

LT.LD(C) No. (C) 34/99 Ex. W4 : 25-11-91 Panellist.

BETWEEN :

Ex. W5 : 24-9-81 • Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Pulapakara Raju, S/o. Meera Saheb R/o 19-4-6, Bankpcta, Kakinada, E.G. Dist.

. Workman 6492 THE GAZETTE OMHP1A-. HQVEMBpR"lO;-2OftJL/K^R|;!KA. "A 192 -ftsU ;i-dK,. \\l)i) AND

(1) The'Chief General Mauaerer,

£iatc Sank'of India, Local Head Office. Bank Street FIvderabad.; -

U) • i'cB;- .peneui Vianpger. .'>;i(e B411V of India. V-nal Office, I?f C Complex; 2nd Floor, Visakhapatnam-20. ;! Management This application coming on for final hearing before me in the presence of Sn M Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M. Ramdas. aavocate for management.. Upon hearing the arguments of both sides and on perusing the entire -material 0.0. record, the court passed the following :

AWARD

(I) This,is an application filed under Sec 2A(2)of the Industrial Disputes Act, 1947 for reinstatement with back wages.

, ml-

^n" • .(2) The. dose of the petitioner is that he was appointed ,a rertessenger in the State Bank of India, Samart'liwiadwsneih on. Ki-86 in a permanent vacancy ata^ltioii'iii eeb atu&ffcrcnt places till he was finally terming. _ it State Bank of India.,, Jaggampeta, E. G Dist. T£~ maru. 'flerii did not allow the workman to work more than 246 . . "a, a year with a view to deprive him to .cjairn regular nation on the ground that he worked more than 240 days in a year.

• '.; {3i)fTfc petitioner worked ift the respondent bank for >P2days from J986 to 1992 withbreakes and he was terminated in the year 1992 without any notice. Copies of-year wise break UD appointment of the petitioner is Hereby filed The management used to maintain the panel of candidates to be appointed in temporary posts and and the petitioner was also a member in that panel/Several juniors arc appointed ignoring the petitioner's seniority. The pctitioncros post is a permanent in nature and he worked for a long period. A list ofjunior candidates whose services arc absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No 91 dated 24-9-1981 directing the temporary employees should not be engaged for more than 2(M) days m a calendar year. The management did not follow the rule provided under Sec. 25F of the I.D Act namely "last come first go". Thci retrenchment of the petitioner is only to •aceomodatc another employee. The management was paving Rs. 90/- per day at the time of retrenchment Hence this application

an- .'ippittfVThc second respondent filed its counter pleading ^thsuitas-application is not maintainable under Sec 2A of pafteHJu Act. as this is not a case of discharge or dismissal.

retrenchment or teuaiimtion ot services While 4 ;>" ~i*. of penal of candidatesi prepared as pei tnc seui^Aiiejrr entered mtobetweeBrthf maaagumem and the State fiattk of India Staff Federation. Xht- petitioner was engaged as a Messenger in Stati© Bank, ,Q( india, Samarlakota branqh in a leave vacancy. As per the settlement mentionedabove, the empanelled candidates, were employed depending upon the vacancies till 31-^*97 aad juniors who are leftover from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented frem working for 200 days to avoid legal and administrative difficulties sp that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1992. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that, on 17th November, 1987 an agreerrient was arrived at between .the federation and the rrianagement ba^ik .under Sec 2(p) read with Section 10(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 arid it istire 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3-categories A, Band C anduhey areas' fallows: w . a .;;:

(1) Category 'A', those, who h'iave compiett'd'!240 (lays temporary service in 12 months or less after 1-7-1975.

(ii) Category ' B\ those, who have completed 270 days aggregate temporary service in any continuous Wttek of 36

(lii) Category ' C\ those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1 -7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 td'1991.

(5) As per the 2nd settlemeatwhich was agreed to substitute the period for being considered for permanent . appointment in the bank against tlio vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as8493 both the temporary employees as well as daily wagers/ casual employees ^'thereafter the¹ saM 'panels would lapse.

• MI N u k l . , , :, 1 1 ..

. . ! - •• | rl tr

i l i l \ i> -I

i n u ki : n\ • •. t i ii - i . u ii o. • 1 u o s s ' < "i d - u f c.

, 1 - i) in ! " t. H UM i t . !¹:' \\ . ;. . • . ( .•

;

i . i t ' it 1 U ' l n pt >'•'] . n ut ai .1 Nc.ii6494 THE GAZETTE OF INDIA : NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] (13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment of permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 332 and he worked for 87 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanellment it is estopped from questioning the validity of the settlements, With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 270 days, 170 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-91 has rio relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W4. On behalf of the management, the Chief Manager, Personnel, in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml to M3.

(17) Heard both sides.

(18) The points that arise for consideration are :

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act, (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for ?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Samarlakota Branch on 1-1-86 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Jaggampeta Branch, E. G. Dist. without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs, W3 and W4.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 87 days during the relevant period from 1-7-97 to 31-7-98 It is also contended that the workman also appeared for interview in view of the said settlements and could not be slcctcd for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I D. Act. (21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W3 and W4 issued by the General Manager (Operations), State Bank of India, Hyderabad.

Ex. W3 is a circular dated 16th November, 1997 Ex. W4 is the circular dated 16th November, 1979 whercunder the following facilities arc extended to the temporary6495 employees who completed 270 days dunng the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them '

(I) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 20-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz, those who have put in 240 days temporary service in 12 calendar months, have been absorbed

(u) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees

(22) It is further instructed in Ex W4 that (a) No temporary employees should be allowed, under any circumstances, to cross 90 days temporary service in a year,

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar monthsAvithout prior reference to us (c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment (23) Ex W3 is another circular dated 24th September, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given penod of 12 continuous calendar months

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the 3364 G1/2001—17

workman was not allowed to work more than 240 days in a calendar year Therefore, the workman could not work for more than 240 days so as to seek the shelter under sec 25-B or Sec, 25F of the I D Act The learned counsel appearing for the workman also further contends that Sec 25B clause (1) where a workman was not allowed to work due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs Their Workmen, wherein their lordships were pleased to give the meaning of the expression 'continuous service' for not less lhan one year under Sec 25F read with Sec 25BoftheID Act and it is as follows

"Though S 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days dunng the penod of 12 calendar months both the conditions arc fulfilled No umnterruptcd services necessary if (he total service is 240 days in a period of 12 calendar months either before these several changes or after these "

Their lordships observed that the service for 240 days in a period of 12 calendar months in equal not only to service for a year but is to be deemed continuous scrv ice even if interrupted To appreciate the above said decision and the contention raised by the counsel for workman n is essential to extract Sec 25B(1)

"25B(1) a workman shall be said to be in continuous service, for a period if he is, for that period, in un-interrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman "

(25) The learned counsel for u orkman contends that even if there was am interruption in the scrvite of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec 25- B(2) reads as follows

"Where a workman is not in continuous service within the meaning of Clause (1) 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, he actually worked under the employer 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) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case."

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise docs not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could net be also to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W3 and W4 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1986 and he is only a casual employee. The circulars Exs. W3 and W4 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service.

Therefore, it cannot be said that those circulars were motiviated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as containted in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31 -3-97. The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager, Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for rcgularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman. Whatsoever it may be, those settlements are only with regard to the regulation of the temporary/casual employees. The point before me is not with regard to the rcgularisation of the services of the petitioner and others. The case of the6497 workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contendccKhat the management in order to employ labour under the Contract Labour (Abolition, and Regulation) Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming

(34) This contention has no force because it is not the case of the management that in the petitioner's place some else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Surcsh and Others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-1-97 and his services were retrenched without following the procedure contemplated under Sec 25FoflhclD Act

(35) On the other hand, the case ofthc management is that the workman is only a casual labour used to be engaged in the ledve vacancies upto 11 -1-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies The management placed Ex Ml statement showing the number ofdays the petitioner worked during the relevant period The petitioner worked 87 days during the crucial period His services arc disengaged as there is no continuous availability oflcavc vacancies for engaging the services of the petitioner Thcrcforc,as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, wilh breaks and there arc no particulars ofmalafidc breaks attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec 25FandScc 25BofthcID Act Hence the petitioner cannot ask for reinstatement

(16) In support of his contention the management's counsel placed reliance on a Division Bench ofRajaslhan High Court reported in 1994 LAB I C 1170 between Pah Central Cooperative Bank Ltd, Pali Vs Sunil Kumar Sharmj wherein their lordships of the Rajasthan High Court were pleaded to held under Sec 25F of the I D Act that "the termination of the sc ices of the daily wages employees—Not in continuous service for 240 days—His verbal terminaUon of services—does not violate Sec 25F "

Therefore, the above said decision squarely applies to the case on hand

(17) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25FoftheI D Act Therefore, I sec no Merits in the application

(18) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs Dictated to steno transcribed by her given under my hand and seal ofthc court this the 18th day of August, 2001

K VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR WORKMAN : WWI P Raju,

FOR MANAGEMENTS : MWI Sri C RM Sastry DOCUMENTS MARKED :

FOR WORKMAN :

Yix Wl 17-8-89 Service certificate

E\ W2 25-11-91 Panellist

E\ Wl 24-9-81 Staff circular No 91 by GM (O)

SBI, Hyderabad

E\ W4 16-11-79 Staff Circular No 91 by GM (O)

SBI, Hyderabad

FOR MANAGEMENT :

Ex Ml List of cx-temporary employees who rar^d dispute before Asstt Labour Commissioner (Central) Visakhapatnam

Ex M2 Settlement and judgements regarding rcgulans, lion of services of the temporary employees and casual employees F\ M3 Details of list of candidates appointed who arc alleged to be juniors to the petitioners6498 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M, Ramadas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

New Delhi, the 17th October, 2001 S.O. 3058 —In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexurc in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/15/2001-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATNAM PRESENT:

Sri K Veerapu Midu, B. Sc , B L , Chairman & Presiding Officer

Dated . 18th day of August, 2001

I.T.I.D(C) 35/99

BETWEEN :

Marn Krapanandam,

S/o. Suuba Rao, 19-4-6, Bankpeta, Kakinada

...Workman

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. ...Management (1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, main branch Kakinada on 1-1-87 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year

(3) The petitioner worked in the respondent bank for 980 days from 1987 to 1997 with breakes and he was terminated on 1-4-97 without any notice. Copies of ycarwisc break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec 25G of the ID. Act. namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90 per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the ID. Act, as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank of India and State Bank of India Staff Federation. The petitioner was engaged as a temporary Messenger in State Bank of India Main Branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors whose arc left over from the empenellcd list could not be accommodated for want of6499 regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave onccssion on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-1997 In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they arc as follows :

(i) Categories kA", those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(u) Categories 'B', Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(m) Categories ' C, Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period of 1987 to 1991.

^(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 199] as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1A after clause 1 in the first settlement is installed and it is aS follows:

"persons, who have been engaged in casual basis (as defined in clause 11 (ii) hereunder) to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, water Boys, Sweepers etc., for any of the periods mentioned in category 'A', ' B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992." Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepared for temporary employees and casual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising bctecn the years 1995 to 1996 in respect of casual/ daily wagers There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zoncwisc separately for messengers and non- messengers in the decending order of temporary service put in by ihc candidates during the stipulated period i.e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) In pursuance of the conciliation proceedings a settlement was again entered into between the same parties on 30-7-96 it is the 5th settlement whercunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/ casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indcni'fy the mcsscngcrial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 mcsscngcrial6500 THE GAZETTE OF INDIA NOVEMBER 10, 200I/KARTIKA 19, 1923 [PART II—SEC 3 (n)] vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messengenal staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption m the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlement to 1 to 5 are binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies ansen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement Since the panels were already laped on 31-3-97 engaging their service for subsequent period does not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give any right to any of the empanelled candidates to have their services regularised on perma- nent basis

(14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent m nature The seniority position of this workman was 240 days and he worked for 46 days only during the relevant penod between 1 -7-75 to 31-7-88 while the last candidate absorbed in the list worked for 77 days during the relevant period It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as per the empanclment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted It is false to allege that there is violation of rules in making appointment to permanent basis The petitioner is not entitled to any pnor notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs Wl to W4 On behalf of the management, the Chief Manager, Personnel, in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs Ml to M2 (17) Heard both sides

(18) The points that arise for consideration are (1) Whether the petitioner was retrenched in violation of Sec 25FoftheI D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, main branch on 1-1-87 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 1-4-97 It is further contended that the management deprived him to serve for 240 days6501 in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W5 and W6.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 77 days whereas the petitioner worked only for 46 days during the relevant periodfrom 1-7-97 to 31-7-98. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I.D. Act. (21) I will deal with the first contention raised by the counsel for workman i.c that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W5 and W6 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex.W5 is a circular dated 16th November, 1997, Ex. W6 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them :

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calender months, have been absorbed.

(ii) They be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W6 that.

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstance^ candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W5 is another circular dated 24th Sept., 1981 whercunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25 B or Sec. 25F of the I. D. Act. The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuos service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadih Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec 25F read with Sec. 25 B of the I. D. Act and it is as follows :

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled. No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these." Their lordships observed that the service for 250 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted, To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that period, in un-intcrrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cession of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec. 25- B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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 not less than—

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(n) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine, and (n) one hundred and twenty days, in any other case "

(2f>) In the above said decision, their lordships have considered ihc service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Here the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W4 and W5 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1987 and he is only a casual employee. The circulars Exs. W5 and W6 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were moliviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as containted in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1902 and the names of the seniors were considered upto 31 -3-97 The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc not binding on the workman. Whatever6503 it may be, those settlements arc only with regard to the rcgularisation of the temporary/casual employees. The point before me is not vHth iegard to the rcgularisation of the services of the petitioner and others. The case of the workman is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contei Js that in the place of the petitioner some contract 'n*" iur is engaged and that the workman is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour Abolition, and Regulation Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID. Act. (35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave va-dncies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 46 days during the crucial period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafidc breakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the I.D. Act Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their Lordships of the Rajasthan High Court were pleased to held under Sec. 25F of the I D Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—

3364GI/2001—18

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I D Act. Therefore, I see no Merits in the application.

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding OfTiccr APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR WORKMAN : WW1 : M. KRUPANANDAM MANAGEMENT : MW1 . CRM SASTRY

DOCUMENTS MARKED

FOR WORKMAN .

Ex. Wl : 4-8-88 • Service certificate

Ex. W2 : 25-7-1996 : Service certificate

Ex. W3 • 25-4-1997 . Service certificate

Ex. W4 : 6-4-1992 . Panel List

Ex W5 • 24-9-81 . Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dcpt., Hyderabad Ex W6 : 16-11-79 Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dcpl , Hyderabad DOCUMENTS MARKED FOR MANAGEMENT Ex Ml List of Ex. temporary employees who raised dispute before Asst Labour Commissioner (Central), Visakhapatnam

Ex. M2 • Settlements and Judgments regarding rcgularisation of services of the temporary employees and casual employees

Ex. M3 • Details of list of candidates appointed who are alleged to be juniors to the petitioner6504 THE GAZETTE OF INDIA NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC 3 (n)]

AWARD

W t t, "#%^>' ^ T I ^ i t i6 10-2001 ^t TJra 13TT "TT I [ TJ. t^T-12014/16/2001-3^ 3TR. (,"ft.-I) ]

ar^R gi^iK, i=s

S.O. 3059 —In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tnbunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received b\ the Central Government on 16-10-2001

| No <-!:•>! 1/16/200 l-IR(B-I)]

* ' YY K.I MAR, Desk OfTicer

VNNEXURE

IN < t'

Sri K % N-rapu Naidu, B Sc , B L , Chairman & PRESID u O F h u 'H

Dated 18th da\ of August, 2001

i U.p (C) No. 36/99

BET^ s' :

Vinnakota Anjaneyudu, S/o Krishna. D No 19-4-6. Bankpcta Kakinada Workman

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office. Bank Street, Hyderabad

(2) The Dy General Manager, State Bank of India, Zonal Office, RTC Complex. 2nd Floor, Visakhapatnam-20 Management This application coming on for final hearing before me in the presence of Sn M Suryanaravina and Sri M Sanvswara Rao, advocate for workman and Sn M Ramdas, advocate for manigcuknt 1'pon hearing the arguments of both sides and on perusing ihe entire material on record, the court passed the following

(1) This is an application filed under Sec 2A(2)of the Industrial Disputes Act, 1947 for reinstatement with back wages

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Draksharama branch on 26-4-82 in a permanent vacancy and he served at different place till he was finally terminated at State Bank of India, Main Branch, Kakinada The management did not allow the workman to work more than 240 days in a year with a view to depnve him to claim regulansation on the ground that he worked more than 240 days in a year

(3) The petitioner worked in the respondent bank for 1204 days from 1982 to 1997 with breakes and he was terminated on 1-4-97 without any notice Copies of vcarwise break up appointment of the petitioner is hereby filed The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel Several juniors are appointed ignoring the petitioner's seniority The petitioners post is a permanent in nature and he worked for a long period A list of junior candidates whose services are absorbed i9 filed The petitioner also gave his application seeking for permanent employment but it was not considered The management issued a staff circular No 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calendar >car The management did not follow the rule provided under Sec 25F of the I D Act namely "fast come first go" The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs 90/-per day at the time of retrenchment Hence this application

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec 2A of the I D Act as this is not a case of discharge or dismissal, retrenchment or termination of services While it is a case of penal of candidates prepared as per the settlement entered mlo between the management Slate Bank of India and State Bank of India Staff Federation The petitioner was engaged as a Mcasscngcr in State Bank of India Drakshrama Branch, in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 11 -1-97 and juniors whos arc left over from the cmpcncllcd list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 da\s which would give him a right to be regularised The services of6505 the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner It is false to allege that the services of the petitioner were terminated from 1-4-1997 In fact, the management did not have the need to employ the workman from 31-3-97 onwards It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec 2(p) read with Section 10(1) of the Industrial Disputes Act, 1947 read with Rules 58 oflndustnal Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they are as follows

(l) Categories 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-75

(n) Categories 'B', Those, who have completed 270 days aggregate temporary service in any continuous block of 26 calendar months after 1-7-1975

(in) Categories ' C, Those, who have completed a minimum of 30 days aggregate temporary service in any calandar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991

(5) As per the 2nd settlement which was agreed to substitute the penod for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated and or 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1A after clause 1 in the first settlement is installed and it is as following

"persons, who have been engaged in casual basis (as defined under clause ll(n)hereunder) to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, water Boys, sweepers etc , for any of the periods mentioned in category 'A', ' B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992 "

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the first settlement In other words separate panels were prepared for temporary employees and casual/daily wagers for filling up of the \acancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared /onewisc separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period I e 1-7-85 to 31-7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-96 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees arc daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently

(7) In pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and dail> wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would laps" (8) Another memorandum of understanding was signed on 27-2-97 between the parties to indennfy the messengenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messengenal staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/ causal labours would lapse on 31-3-976506 THE GAZETTE OF INDIA NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SEC 3 (n)] (9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlement to 1 to 5 are binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the >cars 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption m tH bank

(12) It is further pleaded that the temporary service rendered during the penod from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent o this period are not counted as per the agreement Since the panels were already lapsed on 31-3-97 engaging their service for subsequent period does not ansc It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex-temporary employees in the panels were absorbed on the basis of seniority

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(14) It is false to allege that the jumors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature The seniority position of this workman was 501 and he worked for 72 days only dunng the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as per the cmpanelment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days, and 200 days respectively The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted It is false to allege that there is violation of rules in making appointment to permanent basis The petitioner is not entitled to any prior notice, before he was discontinued from servicing owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs Wl to W7 On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs M l t o M3

(17) Heard both sides

(18) The points that arise for consideration are (1) Whether the petitioner was retrenched in violation of Sec 25FofthcI D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger m the State Bank of India, Drakshrama branch on 26-4-82 in a permanent vacancy and he was continued m service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 1-4-97 It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of the circulars issued by the management Exs W6 and W7

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 126507 re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances; candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment,

(23) Ex W6 is another circular dated 24th Sept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 72 days during the relevant period from 1-7-97 to 31-7-98. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID. Act.

(21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 340 days in a year in view of the circulars Exs W6 and W7 issued by the General Manager (Operations), State Bank of India, Hyderabad Ex.W6 is a circular dated 16th November, 1997, Ex.W7 is the circular dated 16lh November, 1979 whereunder the following facilities arc extended to the temporary employees who completed 270 days during the penod from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc entered to them :

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25-B or Sec. 25F of the I. D, Act. The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadth Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the I, D. Act and it is as follows :

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled So uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." (ii) They be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W7 that:

Their Lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of (b) Those, who have completed 270 days temporary service as above and have been6508 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employees, Sec. 25-B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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 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) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case."

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgment with some interruptions, Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs, W6 and W7 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1982 and he is only a casual employee. The circulars Exs. W6 and W7 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motiviated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the StaffFcdcration and the management (as contained in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioners and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman. Whatever it may be, those settlements are only with regard to the regularisation of the temporary/casual employees. The6509 Therefore, the above said decision squarely applies

to the case on hand.

point before us is not with regard to the regularisation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I sec no Merits in this application.

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition, and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming

K VEERAPUNAIDU, Presiding Officer

APPENDIX OF EVIDENCE IN ITID 36/99(C)

WITNESSES EXAMINED

FOR WORKMAN : WW1: V. ANJANEYULU

FOR MANAGEMENT : MW1: SRI C R N. SASTRY

DOCUMENTS MARKED

FOR WORKMAN :

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Naryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID. Act.

Ex. Wl : 12-7-82 : Service certificate

Ex. W2 : 4-10-89 . Service certificate

Ex W3 : 6-1-92 : Service certificate

Ex. W4 : 19-7-96 Service certificate

Ex. W5 : 25-4-97 . Service certificate

Ex. W6 : 24-9-81 : StafiXircular No. 91 issued by G M (Operations) SBI Personnel Dcpt., Hyderabad

Ex. W7 16-11-79 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Dcpt., Hyderabad.

DOCUMENTS MARKED FOR MANAGEMENT :

Ex. Ml : List of Ex temporary employees who raised dispute before Asst Labour Commissioner (Central), Visakhapatnam

(35) On the other hand, the case of the management is that the workman is only a ensual labour used to be engaged in the leave vacancies upto 31 -3 -97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 72 days during the crucial period. His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there arc no particulars of malafidc breakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

Ex. M2 : Settlement and Judgments regarding rcgulansation of services of the temporary employees and casual employees

Ex. M3 . Details of list of candidates appointed who arc alleged to be juniors to the petitioner.

(36) In support of his contention in the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I C. 1979 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein Ihcir Lordships of the Rajasthan High Court were pleased to held under Sec 25F for the I.D. Act that :

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—docs not violate Sec. 25F."6510 THE GAZETTE OF INDIA NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC 3 (n)]

AWARD

New Delhi, the 17th October, 2001 S.O. 3060 —In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tnbunal-cum-Labour Court, Visakhapatnam as shown in the Annexurc in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001

[No L-12014/17/2O01-IR(B-I)]

AJAY KUMAR, Desk Officer (1) This is an application filed under Sec 2A(2)of the Industrial Disputes Act, 1947 for reinstatement with back wages

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Main Branch Kakinada in the year 1982 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Main Branch, Kakinada The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim rcgulansation on the ground that he worked more than 240 days in a year

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATNAM PRESENT:

Sri K Veerapu Naidu, B Sc , B L , Chairman & Presiding Officer

Dated 18thdayof August, 2001

LT.LD(C) No. 37/99

BETWEEN:

Chinna Venkataratnam

S/o Babulu, 19-4-6, Bankpeta, Kakinada, East Godavan Dist Workman

AND

(1) The Chief General Manager

State Bank of India, Local Head Office, Bank Street, Hyderabad

(2) TheDy General Manager,

State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 Management This application coming on for final hearing before me in the presence of Sn M Suryanarayana and Sri M Sarveswara Rao, advocate for workman and Sri M Ramadas, advocate for management Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following

(3) The petitioner worked in the respondent bank for 798 days from 1982 to 1997 with breaks and he was terminated on 1-4-97 without any notice Copies of yearwise break up appointment of the petitioner is hereby filed The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also a member in that panel Several juniors are appointed ignoring the petitioner's seniority The petitioners post is a permanent in nature and he worked for a long period A list of junior candidate whose services are absorbed is filed The petitioner also gave his application seeking for permanent employment but it was not considered The management issued a staff circular No 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calender year The management did not follow the rale provided under Sec 25G of the ID Act namely "last come first go" The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs 90/-per day at the time of retrenchment Hence this application

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec 2A of the ID Act, as this is not a case of discharge or dismissal, retrenchment or termination of services While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank of India and the State Bank of India Staff Federation The petitioner was engaged as a Meassenger in State Bank of India Main Branch, Kakinada in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empenclled list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get o\er the administrative and legal difficulties It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised The sen ices of6511 the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner It is false to allege that the services of the petitioner were terminated from 1-4-1997 In fact, the management did not have the need to employ the workman from 31-3-97 onwards It is further pleaded that on 17th M'vembcr, 1987 an agreement was arrived at between tne federation and the management bank under Sec 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-6-88 between the same parties As per the 1st settlement 3 categories A, B and C and they are as follows

(0 Category 'A' Those, who have completed 240 days temporary service in 12 months or less after 1-7-75

(n) Category 'B' Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calandar months after 1-7-1975

(iri) Category 'C Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1 -7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same panties on 27-10-88 as per the said settlement a clause 1-A after clause 1 in the first gettlement is,installed and it is as follows

"Persons, who have been eflgaged in casual basis [as defined in clause 11 (n) hereunde] to work in leave/casual vacancies of Messengers, Farrashes, Cash Coolhes, Water Boys, Sweepers etc, for any of the periods mentioned in category 'A', 'B' and 'C in clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to anscfrom 1988 to 1992"

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with 3364GI/2001—19

the temporary employees who arc also drawing scale wages

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies hkeh to arise upto 1994 and 1995-96 respectively ubich v\as dlso agreed to substitute the year 1992 with 1994 in the 1st settlement In other words separate panels were prepared for temporan. employees and casual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 199^ to 1996 in respect of casual/daily wagers There arc 4 /ones at Hyderabad Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as w ell as the casual/daily w agers w ere prepared zoncwise separately for messengers and non- messengers in the decending order of temporan service put in by the candidates during the stipulated period l e 1-7-85 to 31-7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank whci cm it was agreed that both the panels of temporary employ ccs are daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently

(7) In pursuance of the conciliation proceedings a settlement was again entered into between the same parties on 30-7-96 it is the 5th settlement whercunder it was agreed that both the panels of temporary employees and daily wagers -cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 199? for both the temporary employees as well as daily wagers/ casual employees and thereafter the said panels would lapse

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to mdcntilv the messengenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion full time non-messcngenal staff in the usual manner Therefore, an agreement was entered on 30-7-96 lhat both the panels of temporary employees and daily wagers/ causal labours would lapse on 31-3-976512 THE GAZETTE OF INDIA NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC 3 (n)] (9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as ulleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration The settlements 1 to 5 are binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated9-l-91 it is agreed between V parties that vacancies arisen upto December ! 994 \\MU illed from i 989 panel on the basis of seniority Thereat* • she said panels would lapse and the remaining or lc' over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming > the panel of daily wagers enlisted in 1992 panel wi'i be used for filling up the vacancies which mav ai .n the vcars 1995 and 1996 and after December 1' '> (he said panel of the year 1992 also shall stand lap^ ind the remaining candidates in the panel will has no claim whatsoever for being considered for pcrma *nt absorption in the bank

2) It is further pleaded that the temporary service rcndci td during the period from 1 -1 -75 to 31 -7-88 is only to be t ^ cn for permanent absorption and number of days worMng "ibscqucnt to this period are not counted as per the agreement Since the panels were already lapsed on 31 -3-97 engaging their sen ices for subsequent period docs not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the c\- temporarv employees in the panels were absorbed on the basis of seniority

(H) It is further pleaded that as per the settlement reached between the Staff Federation and the management the pane! if tcmpor.irv employees who worked upto 3 1-7-XX was prepared for giving a chance for being considered (or appointment of permanent basis But (he same did not give a right to any of the empanelled candidates to have their scrv ices regularised on permanent basis (14) H is false to allege that the juniors to the workman ire appointed ignoring the claim of the workman and Im scniontv and th.it the post in which he worked was permanent in natiiie 1 he seniority position of this workman was I61.indhc worl ul lot 67 "! davs only during the relevant period \~ i v , ""•• lo TI-7-88 while the last candidate absorlx-i i t woiksd for 77 days during the relevant period • * t-. f iKe to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted It is false to allege that there is violation of rules in making appointment to permanent basis The petitioner is not entitled to any prior notice, before he was discontinued from servicing owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs Wl to W4 On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs Ml toM3

(17) Heard both sides

(18) The points that arise for consideration are (1) Whether the petitioner was retrenched in violation of Sec 25FoftheI D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Main Branch in the year 1982 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 1-4-97 It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs W6 and W7

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of6513 termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management ai d the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 79 days whereas the petitioner worked only for 67.3 days during the relevant period from 1-7-97 to 31 -7-98, It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected f^r want ol vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I D. Act (21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W6 and W7 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex W6 is a circular dated 16th November, 1997, Ex. W7 is the circular dated 16th November, 1979 whercunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities sre extended to them.

(i) The temporary employees, who I tave worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies is subordinate cadre, if any, subject to their being otherwise eligible and foun I suiiablc in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W7 that (a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms iTour extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex W6 is another circular dated 24th Sept, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a t n ,d in case of 230 days (stipulated earlier) continuously or in . iy gi en period of 12 continuous calendar months

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec 25F of the I. D. Act. The learned counsel appearing for the workman also further contends that Sec 25B clause (1) where a workman not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employees in relation to the Digwadth Colliery Vs Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec 25F read with Sec. 25-B of the I. D. Act and it is as follows :

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not c ly to service for a year but is to be deemed continuous sc vice even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25-B(l).

"25-B(l) a workman shall be said to be in continuous service, for a period if he is, for that period, in un-interrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a6514 THE GAZETTE OF INDIA : NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] cession of work which is not due to 2ny fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the, service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec. 25-B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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 cmplojcr 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) for a period of MX months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has net Jail," worked under the employer for not less than—

(i) nin'Ciy-Iivc days, in the case of a workman cmplovcd below ground in a mine, and (ii) one hundred and twenty days, in any other case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgment with .some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies, Hence the question of their termination periodically or otherwise docs not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs W6 and W7 and the workman was not allowed to work for more than 250 days in a year. This contention has no force because the workman joined in the service in the year 1982 and he is only a casual employee. The circulars Exs. W6 and W7 were issued in ihc years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

C?2) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the StafTFcdcralion and Ihc management (as containtcd in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31 -3-97 The petitioner and others could not gel selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlement entered between the Staff Association and the management arc not binding on the workman Whatever it may be, those settlements arc only with regard to the regulation of the temporary/casual employees. The point before me is not with regard to the rcgulansation of the services of the petitioner and others. The case of the6515 workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec 7 of the Act and no such licence is forthcoming

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Suresh and others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec 25FoftheID Act (35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies The management placed Ex Ml statement showing the number of days the petitioner worked during the relevant period The petitioner worked for 67 3 days during the crucial period His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of mala fide breakes attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec 25F and 25B of the ID Act Hence the petitioner cannot ask for reinstatement

(36) In support of his contention the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB IC 1370 between Pah Central Cooperative Bank Ltd, Pali Vs Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec 25F of the ID Act that

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec 25F"

Therefore, the above said decision squarely applies to the case on hand

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25FoftheI D Act Therefore, I see no Merits in the application

(38) In the result, the petition is dismissed and ml award is passed However, there is no order as to costs and each party is direct to bear its own costs

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001

K VEERAPUNAIDU, Presiding Officer APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR WORKMAN : WW1 : CH. VENKATA

RATNAM FOR MANAGEMENT : MW1 : C.R.M. SASTRY DOCUMENTS MARKED FOR WORKMAN :

Ex Wl 5-8-1988 Service certificate

Ex W2 20-11-1985 Service certificate

Ex W3 2-4-1998 Service certificate

Ex W4 12-5-1997 Service certificate

Ex W5 6-4-1992 Penal List

Ex W6 24-9-1981 Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad Ex W7 Staff circular No 91 issued by General Manager (Operations) SBI Personnel Dept, Hyderabad DOCUMENTS MARKED FOR MANAGEMENT :

Ex Ml List of Ex temporary employees who raised dispute before Asstt Labour Commissioner (Central), Visakhapatnam

Ex M2 Settlement and Judgments regarding regulansation of services of the temporary employees and casual employees

Ex M3 Details of list of candidates appointed who are eligible to be juniors to the petitioners M ftwfl, 17 3TOJ^T, 2001

"KT.OT.3061 — 3fll?lP|thfae|iq STfafWT, 1947 (1947 TT14) ^ "rnj 17 % ^1 36516 THE GAZETTE OF INDIA : NOVEMBER 10, 2001/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] New Delhi, the 17th October, 2001 S.O. 3061.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Anncxurc in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001,

[No. L-12014/18/2001-IR(B-I)]

AJAY KUMAR, Desk Officer

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Main Branch Kakinada in the month of July 1988, in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regulation on the ground that he worked more than 240 days in a year,

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATNAM PRESENT:

Sri K. Vecrapu Naidu, B.Sc, B.L., Chairman & Presiding Officer

Dated : 18th day of August, 2001

LT.LD(C)No. 38/99

BETWEEN :

Akula Suribabu S/o. Yellaiah 19-4-6, Barkpeta, Kakinada, East Godavari Dist. ...Workman

AND

(1) The Chief General Manager

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager,

State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. ...Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, Advocates for workman and Sri M. Ramdas, Advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

(3) The petitioner worked in the respondent bank for 299 days from 1988 to 1997 with breaks and he was terminated on 1-4-97 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed, The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec. 25G of the ID. Act, namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment, Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the I.D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management State Bank of India and State Bank of Inida Staff federation. The petitioner was engaged as a Meassenger in State Bank of India, Main Branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empenelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised, The services of6517 the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner, It is false to allege that the services of the petitioner were terminated from 1-4-1997 In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A,,B and C and they are as follows :

(0 Category 'A\ those, who have completed 240 days temporary service in 12 months or less after 1-7-75.

(li) Category '13', those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975

(in) Category ' C\ those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987lo 1991.

(5) As per the 2nd settlement which was agreed to substitute Ihc period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1A after clause I in the first settlement is installed and it is as follows

'persons, who have been engaged in casual basis |as defined in clause 1 l(n) hcrcunder) to work in leave/casual vacancies of Messengers, Farrashcs, Cash Coolies, Water Boys, Sweepers etc , for any of the periods mentioned in category 'A\ B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies hkclv to arise from 1988 to 1992." Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casuaVdaily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the first settlement. In other words separate panels were prepared for temporary employees and casual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tmpathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zonewise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period I c. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently

(7) In pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers -cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentify the messengcrial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messcngenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion full time non-mcssengerial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31-3-976518 THE GAZETTE OF INDIA : NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SEC. 3 (ii)] (9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1 -7-75 to 31 -7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlements to 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no calaim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1 -1 -75 to 31 -7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31 -3-97 engaging their service for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the StaffFederation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointment ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this workman was 385 and he worked for 15.5 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 97 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days. 179 days, 220 days, 179 days, 196 days and 200 days respectively, The circular dated 24-9- 81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W5. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. M l t o M 3.

(17) Heard both sides.

(18) The points that arise for consideration arc :

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Main Branch, Kakinada in the month of July, 1988 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India, Main Branch, Kakinada without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W3 and W4.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked6519 for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may anse in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior and the last man out of the empanelled list have worked for 97 days whereas the petitioner worked only for 15.5 days during the relevant period from 1-7-97 to 31 -7-98. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the I D. Act. (21)1 will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs W4 and W5 issued by the General Manager (Operations), State Bank of India, Hyderabad Ex W4 is a circular dated 16th November, 1997, E\.W5 is the circular dated 16th November, 1979 whercunder the following facilities arc extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., there who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(n) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees

(22) It is further instructed in Ex. W5 that.

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been 3364GI/2001— 20

re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex W4 is another circular dated 24th Sept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec 25F of the I. D. Act. The learned counsel appearing for the workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadlh Colliery Vs. Their Workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the 1 D. Act and it is as follows •

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman had actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled No un-intcrniptcd service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these." Their lordships observed that the service for 240 days in a period of 12 calendar months equal not only to service for a year but is to be deemed continuous service even ifintcrruplcd. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to cxlract Sec. 25-B(l).

"25-B(l) . a workman shall be said to be in continuous service, for a period if he is, for that period, in un-intcrruptcd service, including service, which may be interrupted on account of6520 THE GAZETTE OF INDIA NOVEMBER 10, 200 I/KARTIKA 19, 1923 [PART II—SFC 3 (H)] sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman "

lordships observed that even there were some interruptions, the total penod worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec 25- B(2) reads as follows

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Here the question of their termination penodically or otherwise does not anse Any way, that aspect will be dealt separately at a later stage

"Where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- fa) for a penod of one year, if the workman, during a penod of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer not less than—

(0 one hundred and ninety days in the case of a workman employed below ground in a mine, and

(n) two hundred and forty days, in any other

case,

(b) for a penod of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for less than—

(31) The learned counsel appcanng for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs W4 and W5 the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1988 and he is only a casual employee The circulars Exs W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motmated to depnve the workman from claiming their legitimate nghts and that the management indulged in methods amounting to unfair labour practice (I) ninety-five days, in the case of a workman

employed below ground in a mine, and

(n) one hundred and twenty days, in any other

case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff Federation and the management (as contained m Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included m the panel list He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the cmplovees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered betwe n ihe Staff Association and the management arc n u binding on the wo man Whatever it may be, those settlements arc only with regard to the (28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their6521 regularisation of the temporary/casual employees. The point before me is not with regard to the regularisation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour Abolition, and Regulation Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

"the termination of the services of the daily wages employes—Not in continuous service for 240 days— His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I see no Merits in this application.

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE

WITNESSES EXAMINED

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the ID. Act. FOR WORKMAN : WW1 . A. Suri Babu FOR MANAGEMENT : MW1 : C.R.M. Sastry DOCUMENTS MARKED

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31 -3 -97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex, Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 15.5 days during the crucial period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malaflde breakes attributable to the management, The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention in the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the ID. Act that:

FOR WORKMAN:

Ex. Wl : 19-7-96 : Service certificate

Ex. W2 : 25-4-97 ; Service certificate

Ex. W3 : 6-4-92 : Penal List

Ex, W4 : 24-9-81 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Deptt,, Hyderabad.

Ex. W5 : 16-11-79 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Deptt., Hyderabad FOR MANAGEMENT:

Ex. Ml : List of Ex. temporary employees who raised dispute before Asst. Labour Commissioner (Central), Visakhapatnam.

Ex. M2 : Settlements and Judgments regarding regularisation of services of the temporary employees and casual employees.

Ex. M3 : Details of list of candidates appointed who are alleged to be juniors to the petitioners.

•=^f^ft, 17 ^TOT^T, 2001

^T.OT. 3062.—3^Pl"hfaqi<;3Tfirf^m, 1947 (1947 ^n 14) ^ft *iro 17 % arjwi"^', ^^1*1 m tittf! $, "3ft ^>-sO<< m^FR^f 16-10-2001 ^fit TfTO^HT "TT I

[U T^-12014/19/2001 -3T^3TK ( t f - I )]

3T5TT ^iTK, ^P 3Tftl3flft New Delhi, the 17th October, 2001 S.O. 3062.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Anncxure in (he Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001

| No L-12014/19/2001-IR(B-I)1

A JAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISAKHAPATANAM PRESENT:

Sri K Vccrapu Naidu, B Sc, B L , Chairman & Presiding Officer

Dated ISth day of August, 2001

I.T.I.D(C) 39/99

BETWEEN:

Dondapati Prabhalh Kumar S/o. D.S George, D. No 14-4-6, Bankpcl, Kakinada Ii G Disl

...Workman AND

(1) The Chief General Manager,

Stale Bank ol India, Local Head Office, Bank Street, Hyderabad

(2) The Dy General Manager, Slate Bank oflndia. Zonal Office, RTC Complex, 2nd Floor, Visakhapalnam-20 .. Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M. Ramdas, Advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Treasury Branch, Kakinada on 10-3-82 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

(3) The petitioner worked in the respondent bank for 745 days from 1982 to 1997 with brcakes and he was terminated on M-97 without any notice Copies of ycarwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec. 25O of the I D Act namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D Act. on this is not a case of discharge or dismissal, retrenchment or termination of services While it is a case of panel of candidates prepared as per the settlement entered into between the management State Bank oflndia and State Bank oflndia Staff Federation. The petitioner was engaged as a messenger in State Bank of India, Treasury Branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who arc left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was6523 in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992"

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who arc also drawing scale wages, appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 1-4-97. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 10(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they are as follows.

(i) Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(u) Category 'B', those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Category ' C\ those, who have completed a

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepaied for temporary employees and casual/daily wagers for Filling up of the vacancies arising between 1980 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 inrespect of casual/ daily wagers. There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zonewisc separately for messengers and non-messengers in the decending order of temporary service put in by the Candidates during the stipulated period i.c 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive upto March, 1997 and the vacancies will be filled from both the lists concurrently.

minimum of 30 days aggregate temporary service in any calendar year after 1 -7-197 5 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991

(7) In pursuance of the conciliation proceedings a settlement was again entered into between the same parties on 30-7-96 it is the 5th settlement whercunder it was agreed that both the panels of temporary employees and daily wagers-cum -casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as follows .

"persons, who have been engaged in casual basis fas defined in clause 1 l(ii) hereunder] to work in leave/casual vacancies of Messengers, Farrashcs, Cash Collies, Water Boys, Sweepers etc., for any of the periods mentioned in category 'A', ' B\ and 'C

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the mcsscngcrial vacancies as on 31-12-94 has since been complied by Central Office and thereby 403 messengcnal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion full time6524 THE GAZETTE OF INDIA; NOVEMBER 10,200 I/KARTIKA 19,1923 [PARTII—SEc.3(ii)] non-messengerial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/casual labours would lapse on 31-3-97.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management, The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration, The settlements 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

workman was 589 and he worked for 59 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 77 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanclment it is estopped from questioning the validity of the settlements, With regard to the list of candidates set out in the annexure to the clai m statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 1% days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed

by the 2nd respondent.

(11) Coming to the panel of daily wagers enlisted in 1998 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W5. On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. MltoM3.

(17) Heard both sides.

(18) The points that arise for consideration arc:

(1) Whether the petitioner was retrenched in

violation of Sec. 25F of the I D. Act ?

(12) It is further pleaded that the temporary service rendered during the period from 1-1 -75 to 31 -7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31-3-97 engaging their service for subsequent period docs not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(13) It is further pleaded that as per the settlement reached between the SlaiTFederatJon and the Management the panel of temporary employees who worked upto 31 -7-88 was prepared for giving a chance for being considered for appointment on permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the Slate Bank of India, Treasury branch on 10-3-82 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at Stale Bank of India Main branch, Kakinada without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W3 and W4.

(14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. The seniority position of this6525 (b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex. W4 is another circular dated 24th Sept, 1981 where under it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 ora little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is ot a senior and the last man out of the empanelled list have worked for 77 days whereas the petitioner worked only for 59 days dunng the relevant period from 1 -7-87 to 31 -^-H It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec, 25F of the ID. Act.

(21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W4 and W5 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex.W4 is a circular dated 16th November, 1997, Ex.W5 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25-B or Sec. 25F of the ID. Act. The learned counsel appearing for the workman also further contends that Sec, 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance and a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadeh Colliery Vs, Their Workmen, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25-B of the ID. Act and it is as follows:

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." 0) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed,

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1)

(22) It is further instructed in Ex. W5 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

"25 B(l) : a workmaks shall be said to be in continuous service, for a period if he is, for that period, in un-interruptcd service, including service, which maybe interrupted on account of6526 THE GAZETTE OF INDIA NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC 3 (n)] sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman "

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 da\s in a calendar jear because of the periodical termination made by the respondent

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be 'continuous service' under an employer Sec 25-B(2) reads as follows

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise does not arise Any way, that aspect will be dealt separately at a later stage

"Where a workman is not in continuous serv ice within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- fa) 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 not less than—

(I) one hundred and ninety days in the case of a workman employed below ground in a mine, and

(u) two hundred and forty days, in any other

case,

(31) The learned counsel appearing for the workman submits that because he is not prov ided with any work he could not be able to complete 240 day s continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 da\s in a year and he also further contends that because of the circular issued by the management under Exs W4 and W5 the workman was not allowed to w TV for more than 240 da> s in a year This contention has no lorce because the workman joined in the service in the year 1982 and he is only a casual employee The circulars Exs W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore, it cannot be said that those circulars were motiviatcd to depnvc the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer and for less than—

(0 ninety-five days, in the case of a workman

employed below ground in a mine, and

(ii) one hundred and twenty days, if any other

case"

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 2 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff federation and the management (as contained in Ex M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman m his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointments was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regulansalion of the temporary/casual employees The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workman is that the termination of the petitioner, as alleged by him, is illegal6527 (33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the contract Labour Abolition, and Regulation Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

under Sec. 25F of the I. D. Act. Therefore, I sec no merits in this application.

(38) In the result, the petition is dismissed and Nil Award is passed However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE: WITNESSES EXAMINED FOR

Workman Management

WW1 D Prabhat Kumar MW1 Sr. C R, M. Sasiry Documents marked for workman:

(34) This contention has no force because it is not the case of the management that in the petitioner's place some body else is employed on contract basis. Therefore, the doctrine oflifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in a year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the I D Act

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31 -3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. The petitioner worked for 59 days during the crucial period. His services arc disengaged as Ihcrc is no continuous availability of leave vacancies for engaging the services of the petitioner Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there arc no particulars of malafidc breakes attributable to the management. The workman in LIUS case is not in conlinuous service of 240 days as required under Sec. 25F and 25B of the I D Act Hence the petitioner cannot ask for reinstatement

(36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Courl reported in 1994 LAB I.C. 1370 between Pali Central Co-operative Bank Ltd., Pali Vs Sunil Kumar Sharmu wherein their Lordships of the Rajasthan High Courl were pleased to held under Sec. 25F of the I D Act that •

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—docs not violate Sec. 25F "

Therefore, the above said decision squarely applies to the case on hand

(37) Thus, in the light of my aforesaid discussion, the petitioner failed lo establish that his case would fall 3364QI/2001—21

Ex.Wl : 5-8-88 . Service Certificate.

Ex.W2 : 29-12-92 : Service Certificate.

Ex.W3 : 7-5-97 : Service Certificate.

Ex.W4 24-9-81 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department Hyderabad.

ExW5 : 16-11-79: Staff circular No 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Documents marked for management:

Ex Ml: List of Ex-temporary Employees who raised dispute before Assistant Labour Commissioner (Central), Visakhapatnam.

ExM2: Settlements and Judgments regarding rcgulansation of services of the temporary employees and casual employees.

Ex M3 • Details of list of candidates appointed who are alleged to be juniors to the petitioner.

New Delhi, the 17th October, 2001

S.O. 3063—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001

[No L-12014/20/2001-IR(B-I)]

AJAY KUMAR, Desk Officer (2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Samarlakota branch on 1 -1 -85 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Samarlakota branch. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

(3) The petitioner worked in the respondent bank

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT . VISAKHAPATNAM PRESENT:

Sri K. Veerapu Naidu, B.Sc, B.L., Chairman & Presiding Officer

Dated. 18th day of August, 2001

LT.LD(C) 40/99

BETWEEN:

Saladi David Raju, S/o Surya Rao, 19-4-6, Bankpctp, KakinadaE.G. Dist .

.Workman AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. ...Management This application coming on for final hearing before me in the presence of Sri M Suryanarayana and Sn M. Sarveswara Rao, advocates for workman and Sri M. Ramdas, Advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, Ihc court passed the following :

for 288 days from 1985 to 1995 with breaks and he was terminated in the year 1995 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also a member in that panel. Several juniors arc appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for long period. As list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered, The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec. 25F of the ID Act namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

AWARD

(1) This is an application filed under Sec 2A(2)of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of panel of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff Federation. The petitioner was engaged as a Messenger in State Bank of India, Samarlakota branch, in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31 -3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for ..00 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appoints to the post in accordance with the rules. TV* rorc u concept of retrenchment" cannot be cxtcndi llr. petitioner li false lo allege that the services ol L petition-'were crminatcd from6529 the year 1995. In fact, the management did not have the need to employ the workman from 31 -3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 18( 1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement, Second settlement is dated 16-7-88 between the same parties As per the 1st settlement 3 categories A, B and C and they are as follows.

(i) Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category LB\ those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975

(iii) Category ' C\ those, who have completed a

1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement, In other words separate panels were prepared for temporary employees and casual/daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995to 1996 in respect of casual/ daily wagers There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared zoncwise separately for messengers and non-messcngers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption tcmporar\ employees Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein ii was agreed that both the panels of temporary employees and daily wagers/ casual labour will be kept alive upto March, 1997 and the vacancies will be filled from both the lists concurreni 1\ minimum of 30 days aggregate temporary service in any calendar year after 1-7-1975 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely lo arise during the period 1987 to 1991.

(7) In pursuance of the conciliation proceedings settlement was entered into between the same parties on 30*7-96 it is the 5th settlement whercunder it was agreed that both the panels of temporary employees and d;nl\ wagcrs-cum -casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 11 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87 The 3rd settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as follows .

"persons, who have been engaged in casual basis [as defined in clause 1 l(ii) hercundcr] to work in leave/casual vacancies of Messengers, Farrashcs, Cash Collies, Water Boys, Sweepers etc , for any of the periods mentioned in category 'A', 'B', and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to ansc from 1988 to 1992."

(8) Another memorandum of understanding w.is signed on 27-2-97 between the parties to identify the mcsscngcrial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 mcsscngcrial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel fen temporary employees after effecting conversion from full lime non-mcsscngcrial staffin the usual manner Therefore an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31-3-97

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who arc also drawing scale wages

(6) The 4th settlement was entered into between the same parlies on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and

(9) The vacancies as agreed upon by the abo\e s.nd settlements and the memorandum of understanding uere filled with the eligible candidates in the panels 1'hc petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous6530 TTIE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA ] 9,1923 [PART II—SEC. 3 (H)l 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlements to 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates are no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already lapsed on 31-3-97 engaging their services for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the SlafTFederalion and the Management the panel of temporary employees who worked upto 31-7-88 was prepared for giv ing a chance for being considered for appointment of permanent basis But the same did not give a right to an\ of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature The seniority position of this workman was 318 and he worked for 88 days only during the relevant period between 1-7-75 to 31-7-88 while the last candidate absorbed in the list worked for 88 days during the relevant period. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the cmpanelment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 240 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-91 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there >s violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs Wl to W5. On behalf of the management, the Chief Manager, Personnel, in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml to M3

(17) Heard both sides.

(18) The points that arise for consideration are :

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I. D. Act ?

(2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Samarlakota branch on 1-1-85 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India, Samarlakota branch Kakinada without any notice from 1-4-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. W4 and W5

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1-4-97, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and6531 (23) Ex W4 is another circular dated 24th Sept ,1981 whereunder it is instructed that the temporary employ ees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months the petitioner is not a senior and the last man out of the empanelled list have worked for 88 days whereas the petitioner worked only for 88 days during the relevant period from 1-7-97 to 31-7-98 It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec 25F of the I D Act

(21) I will deal with the first contention raised by the counsel for workman i e that the workman was not allowed to serve for more than 240 days in a year in \icw of the circulars Exs W4 and W5 issued by the General Manager (Operations), State Bank of India, Hyderabad Ex W4 is a circular dated 16th November, 1997, Ex W5 is the circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 day s in a calendar y ear Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec 25F of the I D Act The learned counsel appearing for the workman also further contends that Sec 25B clause (1) where a workman was not allowed to work due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadeh Colliery Vs Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec 25F read with Sec 25-B of the I D Act and it is as follows

(I) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz , those who have put in 240 days temporary service in 12 calender months, have been absorbed,

"Though S 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these " (u) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees

(22) It is further instructed in Ex W5 that

Their lordships observed that the service for 240 days in a period of 12 calendar months equal not only to service for a year but is to be deemed continuous service even if interrupted To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec 25B(1)

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year

"25-B(l) a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which maybe interrupted on account of sickness or authonsed leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman "

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without pnor reference to us

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed6532 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC. 3 (ii)] to be 'continuous service' under an employer. Sec. 25- B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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 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) for a penod of si x months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

(ij ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case."

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise

(28) As already observed above, the meaning of continuous service was given in the above saidjudgmcnt. The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break" of service (29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question ofthcir termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W4 and W5 the workman was not al lowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1983 and he is only a casual employee. The circulars Exs. W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman m the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff federation and the management (as containted in Ex. M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31 -3-97 The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc not binding on the workman Whatever it may be, those settlements arc only with regard to the regularisation of the temporary/casual employees. The point before me is not with regard to the regulansation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the contract Labour Abolition,and Regulation Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

APPENDIX OF EVIDENCE: WITNESSES

EXAMINED:

For workman; For management

WW1 S. David Raju MW1 Sr. C. R M Sastry.

Document marked for workman :

(34) This contention has no force because it is not the case of the management that in the petitioner's place some body else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Surcsh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31 -3-97 and hi? services were retrenched without following the procedure contemplated under Sec. 25Fofthe I.D. Act.

Ex.Wl : 16-8-89 : Service Certificate

Ex.W2 : 104-97 : Service Certificate

Ex.W3 : 25-11-91 : Panellist.

Ex.W4 : 24-3-81 • Staff circular No. 91 issued by General Manager (Operations) SB! Personnel Department, Hyderabad.

Ex.W5:16-11-89: Staff circular No, 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Document marked for management:

(35)Oni! - ^t! hand the case of the management is that the worl \ an is c aly a casual labour used to be engaged in the lea v e vac,;n ~;™ upto 31 -¹ 97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked dunng the relevant period. The petitioner worked for 59 days during the crucial period. His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafidc brcakes attributable to the management. The workman in this case is not in continuous service of 240 days tfs required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention in the management's counsel place reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Co-operative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F the ID. Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I see no merits in this application.

(38) In the result, the petition is dismissed and Nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer Ex. Ml: List of Ex-Temporary Employees who raised dispute before Assistant Labour Commissioner (Central), Visakhapatnam.

Ex.M2: Settlement and Judgments regarding regularisation of services of the temporary employees and casual employees.

Ex. M3: Details of list of candidates appointed who arc alleged to be juniors to the petitioner.

New Delhi, the 17th October, 2001 S.O. 3064.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/21/2001-IR(B-I)]

AJAY KUMAR, Desk Officer6534 THE GAZETTE OF INDIA • NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC 3 (ii)]

ANNEXUKE

THE COURT OF INDUSTRIAL TRIBUNAL CUM

LABOUR COURT: VISAKHAPATNAM

PRESENT:

Sri K. \fcerapuNaidu,B. Sc., B.L, ChainnanIndustrial Tribunal & Presiding Officer, Labour Court, Visakhapatnam.

Dated. 18th day of August, 2001

LT.I.D(C). 13/2000

BETWEEN:

management used to maintain the panel of candidates to be appointed oh temporary basis posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calendar year. The management did not follow the rule provided under Sec. 25G of the ID. Act. namely "last come first go", The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- pcr day at the time of retrenchment. Hence this application.

Sadi Satyanarayana, S/o. S. Narasimhulu, 9-137/1, Venkataramananagar, C/o K. Acha Rao, Indrapalem, Kakinada-6

.... Workman

AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam Management

This application coming on for final hearing before me in the presence of Sri M Suryanarayana and Sn M. Sarveswara Rao, advocates for workman and Sri M Ramadas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India, Main Branch, Kakinada on 13-3-89 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim rcgularisation on the ground that he worked more than 240 days in a year.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the ID. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management Bank of India, State Bank of India Staff Federation. The petitioner was engaged as a temporary Messenger in State Bank of India, Main branch Kakinada in a leave vacancy. As per the settlement mentioned abovf, the empanelled candidates were employed depending upon the vacancies till 31 -3-97 and juniors who arc left over from the cmpcnelled list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from July, 1991. In fact, the management did not have the need to employ the workman from 31 -3-97 onwards It is further pleaded that on 17th Novcmocr, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section I K( 1) of the Industrial Disputes Act, 1947 read with Rules 58 oflndustnal Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parties. As per the 1 st settlement 3 categories A, B and C and they arc as follows •

(3) The petitioner worked in the respondent bank

(i) Category 'A' • Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975

for 96 days from 13-3-89 to July, 1991 and he was terminated from July, 1991 without any notice. Copies ofycarwisc break up appointment of the petitioner is hereby filed. The6535 (u) Category 'B' : Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

the stipulated period i e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the Bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour vill be kept alive up to March, 1997 and the vacancies will tc filled from both the lists concurrently.

(iii) Category 'C : Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1 -7-1975 or minimum of 70 days aggregate temporary service in any Continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(7) In pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31 -12-94 ft om the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse,

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1 st settlement dated 17-11 -87. The 3 rd settlement is entered into between the same parities on 27-10-88 as per said settlement on clause 1 -A after clause 1 in the first settlement is installed and it is as follows:

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentily the mcssengenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messcngerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messengerial staff in the usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31 -3-97.

"persons, who have been engaged in casual basis [as defined in clause 1 l(ii) hereundcr] to work in leave/ casual vacancies of Messengers, Farrashes, Cash Coolies, Water Boys, sweepers etc., for any of the periods mentioned in category LA\ 'B', and 'C in Clause 1 will be given a chance for bcii.g considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992."

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above, and his case have not come up for consideration. The settlements 1 to 5 are binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates are no claim whatsoever for being considered for permanent absorption in the bank

(6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the ca ses of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1980 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers. There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam andTirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/ daily wagers were prepared zonewise separately for messengers and non-messengers in the decending order of temporary service put in by the candidates during

(11) Corning to the panel of daily wagers enlisted in 1992 panel will be used for filling up the -vacancies which 3364 GI/2001—226536 THE GAZETTE OF INDIA NOVEMBER 10,200 J/KARTKA19,1923 [PART II—SEC 3 (u)] may anse in the years 1995 and 199(5 and after December, 1996 the said panel of the year 1992 a lso shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(12) It is further pleaded that the temporary service rendered during the period from l-l-7i > to 31 -7-88 is only to bv" taken for permanent absorption and number of days wo Tking subsequent to this period are not counted as per the atgree ment Since the panels wei e already lapsed on 31-3-97 engaging their services for subsequence period does not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex-temporary employees in the pi inels were absorbed on the ba sis of seniority

(13) iTt is further pleaded that as per the settlement reached between the Staff Federation ai tid the Management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment of permanent basis But the same did not give a nght to any of the em panelled candidates to have their services regularised on permanent basis (14) It is fal<>e to allege that thejuru ors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature It is false to allege (that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as per the empanclment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexurc to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted It is false to allege that there is violation of rules in making appointment to permanent basis The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected

(15) The 1st respondent m'opted the counter filed b> the 2nd respondent

(16) On behalf of the workman, the workman is examined as WWI and got marked Exs Wl to W5 On behalf of the management, the Chief Manager, Personnel, Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Ex Ml

(17) Heard both sides

(18) The points that anse for consideration arc (1) Whether the petitioner was retrenched in violation of Sec 25FoftheI D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for⁷ (19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, main branch Kakinada on 13-3-89 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India main branch, Kakinada without any notice from July, 1991 It i s further contended that the management deprived him to serv c for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs W3 and W4

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to July 1991, the alleged date of termination It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec 25Fof the ID Act

(21)1 will deal with the first contention raised by the counsel for workman i e that the workman was not allowed to serve for more than 240 days in a year in view of the circulars issued by the General Manager (Operations), State Bank of India, Hyderabad A circular dated 16th November, 1997 and another circular dated 16th November, 1979 whercundcr the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them

(I) The temporary employees, who have worked in subordinate cadre for 270 days or more6537 during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days' temporary service in 12 calendar months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us (c) Under the circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(21) Another circular dated 24th Scpl , 1981 whercunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1 -7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies fora penod in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25-BorScc. 2.M-'ofthc I. D Act The learned counsel appearing for the workman also further contends that Sec 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadlh Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec 25F read with Sec. 25-Bofthcl D Act and it is as follows :

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months either before these several changes or after these." Their Lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec 25B(1).

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that period, in un-interrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of worl which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman'shall be deemed to be "continuous service" under an employer. Sec. 25-B(2) reads as follows •

"Where a workman is not in continuous service within the meaning of Clause (1) 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 ofonc 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 not less than—

0) 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) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine; and (u) one hundred and twenty days, in any other case."6538 THE GAZETTE OF INDIA. NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC. 3 (ii)] (26) In the above said decision, their Lordships have considered the service of the workman worked for more thin 240 days in each calendar year though'with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the abovesaid decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the abovesaid judgment. The total working days were 240 days In the above said judgment with some interruptions. Therefore, their Lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the abovesaid decision to this case, the workman did not completed 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise docs not ansc Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exts. W4 and W5 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1989 and he is only a casual employee The circulars were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff federation and the management and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 11-3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlement do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regularisatiorrof the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman. Whatever it may be, those settlements arc only with regard to the regularisation of the temporary/casual employees. The ^oint before me is not with regard to the regularisation of t\.i services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the panics as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in a year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25Fof the ID. Act.

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide breaks attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sees 25F and 25B of the ID. Act Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention in the management's counsel placed reliance on a Division Bench of Rajasthan6539 High Court reported in 1994 LAB I.C. 1370 between Pali Central Co-operative Bank Ltd, Pali Vs. Sunil Kumar Sharma wherein their Lordships of the Rajasthan High Court were pleased to be held under Sec, 25F the ID, Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services does not violate Sec. 25F."

Therefore, the abovesaid decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I see no merits in the application.

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer Appendix of Evidence

Witnesses Examined for

Workman: : Management:

WW1 : S. Satyanarayana MW1 Sn S.R.M Sastry DOCUMENTS MARKED FOR WORKMAN:

Ex_Wl : 94-90 Service certificate.

Ex.W2 . 234-90 : Service certificate.

Ex.W3 25-10-90 : Service certificate

Ex.W4 : 29-10-90 . Service certificate

Ex_W5 : 19-9-91 Service certificate.

DOCUMENTS MARKED FOR MANAGEMENT: E\ M l: Settlements and Judgments regarding regulansation of service of the temporary employees and casual employees.

Uligible

Presiding Officer Industrial Tribunal cum Labour Court

Visakhapatnam New Delhi, the 17th October, 2001

S.O. 3065—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Slate Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/22/2001-IR(B-I)]

AJ AY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, VISAKHAPATNAM PRESENT:

Sri K. VfccrapuNaidu, B. Sc., B.L., Chairman & Presiding Officer,

Dated: 18th day of August, 2001

LT.LD(C) No. 14/2000

BETWEEN:

Mummidi Rambabu,

S/o. M Ramachandra Rao, 9-137/1, \fcnkataramanagar, C/o. Alcha Rao, Indrapalcm, Kakinada. Workman

AND

(1) The Chief General Manager

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager,

Slate Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam.-20 ...Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sn M. Sarveswara Rao, advocates for workman and Sri M. Ramadas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec, 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, main branch, Kakinada. On 19-9-1989 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, main branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

(3) The petitioner worked in the respondent bank for 88 days from 19-9-89 to 10-12-89 and he was terminated on 10-12-89 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidate whose services are absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calender year. The management did not follow the rule provided under Sec. 25G of the I.D. Act. namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs 90 per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff Federation. The petitioner was engaged as a temporary Messenger in State Bank of India, main branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who arc left over from the empenalled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 10-12-89. In fact, the management did not have the need to employ the workman from 10-12-89 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are as follows:

(i) Categories 'A': Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Categories ' B ': Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(lii) Categories 'C : These, who have completed a minimum of 30 days aggregate temporary service in any calender year after 1 -7-1975 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1 -A after clause 1 in the first settlement is installed and it is as follows:

"persons, who have been engaged in casual basis [as defined in clause 11 (ii) hereunder] to work in leave/casual vacancies of Messengers, Fairashes, Cash Coollies, Water Boys, Sweepers etc., for any of the periods mentioned in category 'A', 'B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1983 to 1992."

Therefore, the casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 m respect of casual/daily wagers There arc 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank if situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/ daily wagers were prepared zoncwisc separately for messengers and non-messengers in the decending order of temporary service put in by the candidates during the stipulated period ie 1 -7-85 to 31 -7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the Bipartite settlement in respect of absorption or temporary employees Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees are daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently

(7) In pursuance of the conciliation proceedings a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whereunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentify the messengenal vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengenal vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messengenal staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31 -3-97

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so man> \ears as alleged by him and he has put in less than 240 daj s in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above, and his case have not come up for consideration The settlements 1 to 5 arc binding on him The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority Thereafter the said panels would lapse and the remaining or left over candidates are no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this penod are not counted as per the agreement Since the panels were already lapsed on 31-3-97 engaging their services for subsequent period docs not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis (14) It is false to allege that the juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure6542 THE GAZETTE OF INDIA. NOVEMBER 10,2001/KARTKA19,1923 [PART II—SEC 3 (ii)] to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, and 196 days and 200 days respectively. The circular dated 24-9-91 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WW1 and got marked Ex. Wl. On behalf of the management, the Chief Manager, Personnel, in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Ex. M1.

(17) Heard both sides

(18) The points lhat arise for consideration are:

(1) Whether the petitioner was retrenched in violation ofScc. 25F of the I D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for'?

(19) The learned counsel appearing for the petitioner contends lhat the petitioner was initially appointed as a Messenger in the State Bank of India, main branch Kakinada on 19-9-89 >n a permanent vacancy and he was continued in service at various places till his services were finally terminated at Slate Bank of India main branch, Kakmada without anv notice from 10-12-1969. Itisfurthcr contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management.

(20) On ihc other hand, the counsel appearing for the management contends thai the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 10 12.89 the alleged date of termination It is also further contention that by virtue of the 5 settlements dated 17 11 87, 16 7 88, 17 10.88,9 1.91 and 30 10 96 into between the State Bank of India Staff Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID, Act.

(21) I will deal with the first contention rai scd by the counsel for workman i.e that the workman was not allowed to serve for more than 240 days in a year as per the circular issued by the General Manager (Operations), State Bank of India, Hyderabad. A circular dated 16th November, 1997 and another circular dated 16th November, 1979 whereundcr the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1978oralittle later in the matter or absorption and the following facilities are extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed

(n) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extent instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Another circular dated 24th Sept., 2001 whereundcr it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(0 one hundred and ninety days in the case of a workman employed below ground in a mine, and

(li) Two hundred and foity days, in any other

case.

(b) for a penod of six months, if the workman during a penod of six calendar months preceding the date with reference to which calculation is to be made, lias actually worked under the employer for not less than—

(i) ninty five days, in the case of a workman employed below ground in mine, and

(ii) one hundred and twenty days, in any other

case"

(24) The learned counsel appealing for the workman contends that because of the above M:E! t-.u) cirnilars, the workman was not allowed to work more than 240 days in a calendar vcar Therefore, the workman could not work for more tlnn 240 days so as to seek the shelter under Sec 2^-PurSec 25FofthcI. D Act The learned counsel appcuiiiR for the workman also further contends that Sec 25B clause (1) where a workman was not allowed to work, due to no fault on hjs part, he shall be deemed to be in continues service and in support orhis contention he placed 'chance on a decision uf the Apex Court reported in AIR 19fm SC 75 between Employers ir> relation to the Digwadth Colliery Vs. fhcir vvorkr.ccn, wherein their Lordships were pleased to give the meaning of the expression 'continuous service for not less than one year under Sec 2;Fread with Sec 25 BofnicT D. Act and it is as follows .

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

"Though £ 25T speaks of cominuoiij service for not less than one year under Hie employer, if the workman has actually .voil'sd for 240 da>s during the pencr" ol 12 cnlTUa¹ months both tlic condition:, at 2 fulfilled . No uninterrupted service is necessary u the 'otal service is 240 days in a period of 12 calendai months cither before these several changes or after these."

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

3364GI/2001— 236544 THE GAZETTE OF INDIA NOVEMBER 10,2001 /KARTIKA 19,1923 [PART II—SEC 3(")] contends that because of the circular issued by the management and the workman was not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1989 and he is only a casual employee The circulars were issued in the vears 19"⁷" and 1981 and they were issued much earlier than the date of joining of the workman in the service Therefore >t cannot be said that those circulars were motivated to deprne the workman from claiming th?ir legitimate rights and that the management indulged in methods amounting to unfair labour pract ice

(12) It is further contended b\ the workman that me management in this case is placing ichance on 5 settlements entered into between the <=tafi federation and the management and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily w ager Here the w orkman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for rcgulansation of the temporary' employees and certain gmdclmes were given and that the employees of the list for regular appointment was preparedbasing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc nut binding on the workman WKiiev u it may be those settlements arc onlv with regard to the rcaulansauon of the tcmporarv/casual cmplovccs The point before me is not with regard to the regulansation of the services of the petitioner and others, The case of the woikmen n> ihatthe letminntiori of the pctilionc as alleged • < ) T h>* loir • •? -O" i .i 'ijiponiv lor the workman c M. adi >t--*t I ': J xc o\ V pci'tioncr some contract ! o c jr is w 4; ->,ta a.ij h. s the worl is perennial in naiuic •Hid a¹- buth, the services of the petitioner cannot be I' m iRit._d f! i'. also tuiUiCi contended that the management i" i-uvr U c.ipiOV labour under the Contract Labour t \b I'Uou 'n.1 Regulation) Act must obtain licence under S.-t 7 >l ih • /-.ct 'ilia no such licence is forthcoming f *>4) This contention has no force because ll is not the ca^e of ihc management that in the petitioner's place somebody else is tmpiovui on contract basis Therefore, 1<>c doctrine of luting ih, vul to do justice between the p,ii u cc ar. "v,is held in the S. crctarv Han,ana State Electncitv Board Vs hiiicsh and Outers ut reported in AIR !<>*)9 Supreme Court 1160 have no application Here the simple ~ass- nt Hu> workman is that he aid no' serve for more than 240 d->-1, m a \cn- pro cdmj; to "M-3-97 and his services were rctrinthcri without fc llovving the procedure i rr.t :r pLtcJunJc; Sec 15F of the 1 D \ct

(35) On the other hand, the case of the managemeni is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31 -J -*'7 and thereafter they are not taking anyone on temporary basis in the leave vacancies His services* were disengaged as there is no contiguous ^variability of leave vacancies for engaging the services of the petitioner Therefore, as rightly conteaded by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked 111 different branches, with breaks and there are no particulars of malafide breaks attributable to the management The workman in this case is not in continuous service of 240 days as required under Sec 25F and 25B of the I D Act Hence the petitioner cannot ask for reinstatement

(36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I C 1370 between Pah Central Co-opcrativ e Bank Ltd, Pali Vs Suml Kumar Sharma wherein their Lordships of the Rajasthan High Court were pleased to held under Sec 25F of the I D Act that "the termination of the services of the daily wages employees—Not in continuous service for 240 day s—His verbal termination of services—does not violate Sec 25F"

Therefore, the above said decision squarely applies to the case on hand

(37) Thus, in the light of mv aforesaid discussion, the petitioner faiied to esfbnsh that his case would fall under Sec 25FofthcI D Art Therefore, I sec no merits in the application

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is d.rcctcd to bear Us own costs Dictated to Menu transcribed ov her gncii under my hand and seal of the court this the 1 Hth dav o! • igust 2001

K VEERAPU NMDU. Presiding Officer Appendix of Ev ldcncc

Witnesses Examined

For Workman For Management

WW1 M RAMBABU MW1 Sri (' R M Sastrv Documents Marked

FOR WORKMAN

Ex W3 10-?-

FOR MANAGFMFNT

Ex M1 Settlements and Judgments regardi ng rcgulansation of service of the temporary employccs and casual empioyces 65JS New Delhi, the 17th October 1001 S.O. 3066 —In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tnbunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which w is received by the Central Government on 16-10-2001

[No I -12014/23/2001-IR(B-/,l

AJAY KUMAR, Desk Gflictr

ANNEXUBE

THE COURT OF INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, VISAKHAPATNAM PRESENT:

Sri K Veerapu Naidu, B Sc , B L , Chairman & Presiding Officer

Dated 18th day of August, 2001

LT.iD. (015/2000

BETWEEN:

Godtha Veera \fenkata Satyanarayana, S/o Surayya, 9-137/1, Venkataramananagar, C/o K AchaRao, Indrapalem, Kakmada-6 —Workman

And

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad

(2) The Dy General manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 — Management This application coming on for final hearing before me in the presence of Sri M Suryanaravana and Sri M Sarveswara Rao advocate for workman and Sri M Ramdas, advocate for management Upon hearing (he arguments of both sides and on perusing the 'ntire material on record, the court passed the following

AWARD

(1) This is an application filed under Sec 2A(2)of the Industrial D spates Act, 1947 for reinstatement with back wages

(2) The case of the petitioner is that he was appointed as Messenger in the *>t?te Bank of India Mam Branch, Kakinada on 14-5 -tK)' r a pe" "lanent •>, acancy and he served at different place? till he w-r IIPII'Y terminated at State Bank of India, main branch Kakinada The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 davs m a year

(3) The petitioner worked in the respondent bank for SS da-, s bom 14-3-90 to 8-8-90 and he was terminated on 8-8-90 without ai y notice Copies of yearwise break up appointment of ths, petitioner is hereby filed The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that pa ' Several juniors are appointed ignoring the petitioncj 3 *" lonf The petitioners post is a permanent in nature ^ id ne w ow A for a long period A list t at the time of retrenchment Henu tlusapphcatioi

(4) The second respondent filed its counter pleading that tfhis application is not maintainable under Sec 2A of the ID Act as this is not a case of discharge or dismissal retrenchment or termination of serv ices While it is a case of panel of candidates prepared as per the settlement entered into between the management and State Bank of India Staff federation The petitioner was engaged as a temporary Messenger in State Bank of India, Main branch Kakinada in a leavj \ acancy As per the settlement mentioned! above the empanelled wind dates were employed depending upon the vacancies till 31-3-9⁷ and j amors who are left ov er from the emnenelled list could not be ace ommodated for want of regular \ acancies It is false to allege that another person was appointed in the place of workman to get o\ er the administrate e and legal difficulties It is also false to allqge that the workman was6546 THE GAZETTE OF INDIA NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—Su 3 (mi against vacancies hkeh to a. ssc fr^m ! 9tf 8 to 1992 "

Therefore, casual/daily wafers were also to be considered for permanent absorption alon^. with the temporary employees who are aiso dnremg sc1 as not appointed to the post in accordance with the rules Thereiore, the concept of "retrenchment" cannot be extended to the petitioner It is false to aliege that the sen ices of tht petitioner were terminated from 14-5-1990 In fact, the management did not have the need to employ the tvorknian from 14-5-90 onwards It is further pleaded that on i7th Movenber, 1987 an agreement was arrived at between the federation and the management bank under Sec 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 sead mth Rules 58 of Industrial Disputes (Central) Rules, 1^7 and it is the 1st settlement Second settlement is dated 16-'T--8 between the same parties As per the 1st settlemcns < categories A, B and C and they are as follows

(6) The 4th settlement \\ as cntere i into bet w sen the same parties on 9-1-91 extending the benefit to tti; .ise> of temporary employees and casual/dai!> v a"icrs> ^eparaiel) in the vacancies likely to arise upio l'j94 ai J 1995-96 respectively, which was also agreed fo bubstiti.te t*v \ear 1992 with 1994 in the 1 st settlement Ir otner \ oi Js st pa" ate panels were prepared for temporary employees nnc casual/ daily wagers for filling up of the vacanoit s ai ising K'tw een 1988 to 1994 in respect of temporary cmploj ecs ^nd for filling up of the vacancies arising betw een tlw . ;a: s H95 to 1996 in respect of casual/riaily wagers I heic ate 4 zones at Hyderabad, Vijavawada, Visakhao.i'n""i and Tinipathi covering all the districts in Ardhr? Pradesh and

t he I O C PI h e ad o f f i ce of t he r e s p o n d e nt I , nk Is? M" • l a t ed at (I) Categories ' A., Those, who have completed 240 days iemt.oran service in 12 months or less after 1-7-1975

(u) Categories 'B', Those, who have completed 270 days aggregate 'crapora-y service in any continuous block of 36 calendar months after 1-7-1975

Hyderabad With regard to the abo\c said £ tti'-'oent the panels of tiie selected candidates as> well as ihe casual/ dail) wagers were prepared zonewise separately for messengers and non-messengers in tvie dccendins &- 'er of temporary service put in by the candidates during the stipulated period, / e 1-7-88 to 31-7-88 The Fedeiation approached the Regional Labour Commissioner ''Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary emplo>cei Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wheiein it was agreed that both the panels of temporary employees and daily wagers/casual labour v, ill be kept ah\ e up to March, 1997 and the vacancies will be filled from both the lists concurrently

(iii) Categories ' C\ Tho',e, whe have completed a minimum of 30 days aggregate temporan service many calendar} ear aPrr 1-7-1975 of minimum of 70 days aegregdt r aporary service in any continuous block < f JO calendar months after 1-7-1975 In this u "' settlement, it was agreed that the temporary employees as categorised above would b; fiven* chance for being considered for permanent appointment in the management bank's service against vwancies hkeH *t n sc dunng the period 1987 to ! 991

(7) In pursuance of the conciliation proceedings a settlement was entered into between the same parties On 30-7-96 it is the 5th settlement whereunder it \*as agreed that both tht p.sr.eis of temporary employees and dailv rcf!;"Cum-casu"i<. i settlement which was agreed to <=• * 'c >? •p.'O'- ;i eing considered for permanent v, \ \- 5a:"c, ! ir i< * 1) -nk against the "acancies likely to -" A :vc:n 1987 to 1 ;S2 in the piac£ of 1987 to 1991 as contemplated tndor I si set< bmeut dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as pente said < -I'lemeai a clause!-A after clause I""the firs* sc< '.emeu* \ - • "-t'i'*cd arsi it is as follow.

"persons, who 1W-A LCSVL engaged m casual bas's [as defined ir clause 1 l(n) hereur.rier}to^eilr \a Lwc/cii'Ml va" .icies of Messenger?, R i •! "cs, ( ash Collie^, Water Boys, Sweepers eu , lor any of the periods mentionu³ in category 'A', 'B', and 'C in Clause 1 w:ll tv given -a chance for being considered for permanent appointment in Me bank's service

(>547 of tcmpronry employees and dailv wagcr/cai'sa! labours, woula lapse on 31 - <-97

(')) The va- anacs as agreed ;:por by ttv sh^iv; said settlements and iiic memorandum of undeistanding were filled willi tlie eligible candidates in the panels The petitioner herein has pot put in more number of day > than those persons who iias been absoioed and the petilionei did not work i onMnuo'i!.]* *oi so rrnny ^ enr:, •!•, a^egedbx him and he has put in les^ than 240 rl-iys in a continuous 12 men-us period from 1-7-7S lo 31 -"7-KS and as such, he

h as no , iH i • - K mr a b s o r p l . oc m t he m a j v i g c u . c nt L i nk

Thcc;ii oi euiionervas"(,oiisjdcic,linthosi,itlcmenis

1 lo ^ ' :in.', <: : e and hi*; lasc iia* e- not toinc dp *br

consul" r,.,n " t.utlcn'ctlc! sc 1 TO 5 rrc bindnif on

him Tin i.,a i Y' "'-?nl ^'d not viol.ite anv nl ihc terms of

setiljn 11 i*,

(id/ It r, further pleaded thai ,ts per Ihc scitlcm.nt

binding on the workman The workman appealed foi the interview as per ihc settlement and il he is accepted he would have raised an objection before appearing for !hc i;Hcrvie>v Having availed the opportunity as per the enipjncl'nient it is csloppt-d from questioning the validnv L^f the settlementj With regard lo the list of candidates set .:ul in the annexure to the claim statement if if> S'lbmiltcd that all the 7 candidates were seniors 10 the workman and mey worked for 241 oays. 2 /t> days, 179 aavs, 220 da\s, 17'Jdavs, ]'>6J,i\J a.iJ20r/di\sresp£'Cti\Jl> The circular dated 2J-P-91 has no relevance as if is onlv to prevent indiscriminate eontiniL'itioii of temporary cmplovcesby the btdnchts m the instances where their services wcic unwarranted It is false to allege thai there is violation of jules in making appointment to peimanent basis 'I he petition : s Tiot entitled to any prior notice before he WAS discontinued fiom scr/ice owing lo lapse of pane's picp.irod in compliance vv uh the terms under the settlement 1 lo ^ The workman is not entitled for reinstatement and ihcrc is no cause oi action and the petition is liable to be r^|u"it,J

(15) I he 1st respondent adopted the coanter filed dated 9-1 •)] !i;' agiccd betweenthepartiesthatvacancies arisen upto IX cccbcr, 1994 will be hlled from 1 '>K(> uard on .lie bn is oi seniority flicrcafu-r the said pencil, W J UU l.jpsc .i:ui tin. u-mamiti" or !<;fl j-v^r "arul-t' tlcL. k" c -,o ^)aim vvhatMJLvtr for b r i ny e j n s i ( ] i .r:d r i r^:n.,i.ii.nt

b\ ihc 2nd respondcoi

iihsorplinn ui l l k ' b . i nk

(11) C o i n i ng io the p.i.i'-v)r! i! tiU v i p et i enlisted in

(\'ot niarkal FAS Ml

(11) Heard both sidc-

l'J92paiK'l \v •]£ be used for filling up die vacancies w h i ch may arise in the \ears 199S and 1 Wh ,ind after December, 1996 (he said p.ineloflhc \c.ir \W2 .iisosh.ill stand lapse and the icm.mung L.indidate-, in the panel will have no claim whatsoever lor benifi considjad for permanutl .ibsorptuiii ![> Ihcl.ink

(18) The points that aiiseforcousideiahon aie

(!) Whether the petitioner was retrenched in violation of Sec ?5b ol tin 1 O \a')

il) .Vhctlicr Hi*? petitioner is entitled for

reinstatement wi'.h back wages as prayed for''

(1 *) flic teamed counsel appearing lor the petitioner (12; II is further pleaded thai the temporary MJMLG rendered during i!^ period from 1-1-7^ to 11-7-88 isonh lo be idkcn lor [>i-r iianenl absorplivin and number of dav¹- working subseij'ieiii to this period are not counted ,ii p'.i the agreenienl MIICC the panels utre alreadv lapsed on "i l-i-'^cngagi'i): ilieir service for subsequent puioddo^s not arise It is lurthei pleaded that as per the settlements 1 lo *) the \.iLancns have been id( rinded and the cv tcinpoiarv emplo\ccs in the panels wero absorbed on the basis ol scrnoritv

( M) It is lurther pleaded that as per the settlement reached between the LSiaff hedctationand the Management the panel of temporary employees who worked upto ^1-7-88 was prepared for giving a chance for being considered for appointment on permanent basis Hut the same did not give a right toanv oflhc empanelled citididiles lo have ti.t ir services regularised on permanent b'isis

contends thai the pelilioner was initially appointed as p Mjjsenger in the State Bank of 'ndia. Mam Branch K.ikmad i on M-5-90 ui a pcrmanei t s aeanev and he vvas continued in service at various places tilt his services, wetc finally terminated al State Bank of India Main Branch, Kakinada without any notice from 8-8-90 Ii is further i Uiiiended tiint (he management deprived him lo serve for ">40 days m a p.uiicular year in order to disentitle him to claim a regular appointment because of tv\ o circulars issued by the management

(I-)) It is lalse lo allege thai the |uniors to the workman .ne appointed ignoring the chnm of the workman and his semoru and tli.it I he post in which lie worked was permanent in ' ture Ills false to aJlegc thai the selllcmeru cm , i - vcen (he All India Slate Bank of India Stall ^uui >n and the (vlaiuigcmcnl is illegal and not

(20) On Ihc other hand tlu counsel appearing for the management contends (hat the petitioner never worked for more than 240 davs many calendai year much less 12 months preceding lo 8-8-90 the alleged dale of termination It is also ihc lurther contention thai bv virtue of the 5 ^itlemenlsdated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and>548 THE GAZETTE OF INDIA NOVEMBER 10,20G1/KARTIKA19,1923 [PART II—SEC 3 (it)] 0-10-96 entered into between the State Bank of India "ederation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers nhsted upto 1992 panel will be considered filling up the 'acancies which may anse in 1995 and upto December, 996 and thereafter the said panel lapsed It is als>o further xmtended that the workman al"o appeared for interview m lew of the said settlements and could not be selected for ,vant of vacancies and the seniors were gn en priority Therefore, it is not a case of retrenchment and that the Aorkman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec 25F of the ID Act

(21) I will deal with the first contention raised by the counsel for workman; e that the workman was not allowed to serve for more than 240 days in a year as per the circulars issued by the General Manager (Operations), State Bank of India, Hydeiabad A circular dated 16th November 1997, and another circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the penod from 1st July, 1972 to 30th June, 1975 or a httir later in the matter of absorption and the following facilities are extended to them

(I) The temporary ernplo> ees, who ha\ e w orked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interv lew This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporarv employees vi/ , those who have put in 240 days temporary service l nH calender months, have been absorbed

(n) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees

(22) It is further instructed in that

(a) No temporarv employee should be allowed, under an> circumstances to cross 90 days temporary service in a year

(b) Those, who have completed 270 days temporarv service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without pnor reference to us (c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment (23) Another circular dated 24Ji Sept, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the penod from 1-7-1972 to 10-6-1975 ora htt'e later should not be engaged in temporary vacancies for a penod in excess of 230 days (stipulated earlier) continuously or in any given penod of 12 continuous calendar months (24) The learned counsel appeanng for the workman contends that because of the above said two circulars, the workman w as not allowed to work more than 240 da> s in a calender year Therefore, the wotkman could not work for more than 240 days so as to seek the shelter under Sec 25B or Sec 25F of the I D Act 1 he learned counsel appeanng for the workman also furthd vCuUnds that Sec 25B clause (1) where a workman was not -tf lowed to work, due to no fault on his part, he shall be >iecmed to be in continuous service and in supoort ol his conttim"n he placed reliance on a decision of !hc Ap<*\ Court reported in AIR 3966 SC 75 between E^ plovers IP relation to the Digwadth Colliery Vs "Theirwcikman, whereintlicm Lordships were pleased to give the meaning of the expression 'continuous service" for not less than one year undei Sec 25F read wiih Sec 25BoftheI D Act and it is as follows "Though S 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled

No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these '"

Their lordships observed that the service for 240 da^s in a period of 12 calendar months is equal not only to service for a year but i* to be deemed continuous service even if interrupted To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec 25B( 1)

"25-B(l) a workman shall be said to be in continuous service, for a period if he is, for that penod, in un-interrupted service, including service, which may be interrupted on account of sickness or authonsed leave or an accident or a strike which is not illegal, or a lockout or a cession of work which is not due to any fault on the part of the workman"

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed6549 to be "continuous service" under an employer Sec 25- 33(2) reads as follows

casual need basis to work in leave vacancies Henr tin question of their termination penodicalh or otherwis d *s notarise Anyway,fV.at 5spc~tw.llbee¹ 'ltsep ate³', a*a later stage

"Where a workman is not in continuous service within the meaning of Clause (1) for a penod of one year or six months, he shall be deemed to be in continuous service under an employer —

u) for a period of u'-e veai, if the workman, during a iicnod of tvehv . jendar months preceding the date " nh referent if hich "alculalion >i to be made, has actual!) worked under the employer not less than—

(i) one hundred and ninetv day s m the case cl a workman employed below ground in a mine and

(11) two hundred and forty days, m anv other

case,

APPENDIX OFEVIDENCE: WITNESSES EXAMINED :

FOR WORKMAN : WWJ G VV Satjanarayana

FOB MANAGEMENT : MW1 Sri C R M Sastry

DOCUMENTS MARKED

FOR WORKMAN EX Wl Science certificate (34) This contention has no foice because it is not the case of the management that in the petitioner's place somebody else is empidved on contract bn^n Ttv refore the doctrine of lifting the \e;l to do susUce bctvecn the parties as was held in the Secretary. Haryana State Electricity Board Vs Suresh and others etc reported in AIR 19V9 Supreme Court 1168 have no application Hue the simple case of the workman is that he did not serve for more than 240 days in an year preceding to his termination and his services were retrenched without following *h" prowedure contemplated under Sec 25F of the I D / ct

FOR MANAGEMENT E\ Ml Settlements and judgements regarding regulation rf 5"mce of the temporary employees and edsua: employees

i ^ f t r ^, i/oT-^T 20C1

"^nr.OT. 3067.—3Mfp?7fop3[K; 3 # i w ?, 1947 (1947 ^ U 4 ) ^ W S 1 7* vgxqw-^ ^frq^^frx MTOTfa^lNfr

16 10-2CVl~fit7F

[UW^-',2014,24/Z00, 5T^3TR("TT-Ij]

3T3rq°pTK. '^sfr 3Tf*W5Ht

New Delhi, the 17th October, 2001 ("55) On the other hand, the case of the management is that the uoikman is only a casual labour used to be engaged in the leave vacancies upto his termination and thereafter the> are not taking anyone on

(36) In support of his contention in the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported m 1994 LAB I C 1370 between Pah Central Cooperative Bank Ltd, Pals Vs Suml Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec ?5F of the ID Act that

S.O. 3067 —In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tnbunai-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received b} the Central Government on 1^-10-2001

[No L-1201A/24/2001-IR(B-I)i

AJ AY KUMAR, Desk Officer "the termination of the services of the daily employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec 25F"

ANNEXURE

THE COURT OF INDL STR! AL TRTBUNAL-CUM- Therefore, the above said decision squarely applies

LABOUR COURT VISAKHAPATNAM to the case on hand

PRESENT:

Sri K Veerapu Naidu, B Sc B L . Chairman &

Presiding Officer

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25FoftheI D Act Therefore. I see no Ments in the application

Dated 18th day of August, 2001

LT.LD(C)No. 16/2000

BETWEEN.

(38) In the result, the petition is dismissed and nil award is passed However, there is no order as to costs and each party is directed to bear its own costs

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001

K VEERAPU N AIDU, Presiding Officer

Inakoti Satvanarayana, S/o I Vadapalh, D No 9-137/1, Venkataramana Nagar, C/o K Acha Rao, Indrapalem, Kakinada Workman6551 AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20 .. Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M Ramadas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India, Main Branch, Kakinada on 23-9-90 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India, Main branch Kakinada, The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

(3) The petitioner worked in the respondent bank for 84 days from 23-9-90 to 7-7-90 and he was terminated on 7-7-90 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors arc appointed ignoring the petitioner's seniority The petitioner's post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his aplication seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 days in a calanderyear. The management did not follow the rule provided under Sec, 25G of the ID. Act, namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee, The management was paving Rs. 90/- per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the I,D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case 3364GI/2001— 24

of panel of candidates prepared as per the settlement entered into between the management State Bank of India and State Bank of India Staff Federation. The petitioner was engaged as a temporary Meassenger in State Bank of India Main branch Kakinada in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31 -3 -97 and juniors who are left over from the empenelled list could not be accommodated for want of reagular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in 1 cave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 7-7-1990. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they arc a follows:

(I) Category 'A'. Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category 'B'. Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Category lC\ Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after l-7rl975of minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1 st settlement dated 17-11 -87. The 3 rd6552 THE GAZETTE OF INDIA. NOVEMBER 10,200 I/KARTIKA 19,1923 IPARTII—SEC.3(II)1 settlement is entered into between the same parties on 27-10-88 as per the said settlement a clause 1 -A afler clause 1 in the first settlement is installed and it is as follows :

"persons, who have been engaged in casual basis | as defined in clause 11 (ii) hereunder] to work in leave/casual vacancies of Messengers, Farrashcs, Cash Coollics, Water Boys, sweepers etc , for any of the periods mentioned in category 'A', ' B\ a n d 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992"

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who arc also drawing scale wages.

(6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitulc the year 1992 with 1994 in the 1 st settlement In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 lo 1996 in respect of casual/daily wagers, There are 4 /ones at Hyderabad, Vipyawada. Visakhapatnam andTirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard lo the above said settlement ihc panels of the selected candidates as well as the casual/ daily wagers were prepared zoncwisc separately for messengers and non-messengers in the decending order of lemporary service pul in by the candidates during the stipulated period l c 1-7-85 to 31-7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees are daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both ihc lists concurrently

(7) In pursuance of the concliation proceedings a settlement was entered into between the same parties On 30-7-96 it is the fifth settlement whercunder it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to indentify the messcngerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messcngerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messcngcrial staff in the usual manner. Therefore, an agreement entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31-3-97

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1 -7-75 to 31 -7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlement 1 to 5 are binding on him. The management did not violate any of the terms of the settlements

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates are not claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement. Since the panels were already laped on 31 -3-97 engaging their service for subsequent period docs not arise It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is also false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected (15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Ex. Wl. On behalf of the management the Chief Manager, in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Ex. Ml.

(17) Heard both sides.

(18) The points that arise for consideration are .

(1) Whether the petitioner was retrenched in violation of Sec. 25Fof the I. D. Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Main Branch Kakinada on 23-9-90 permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 7-7-90 It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 7-7-90 the alleged date of termination It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-95 entered into between the State Bank of India Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec 25FofthcI.D. Act.

(21) It will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year as per circulars issued by the General Manager (Operations), State Bank of India, Hyderabad. A circular dated 16th November, 1997, and another circular dated 16th November, 1979 whereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them:

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(ii) They will be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(iii) It is further instructed that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extent instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(22) Another circular dated 24th Sept., 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 ora little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(23) The learned counsel appeari ng for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25-B or Sec 25F of the I D Act. The learned counsel appearing for the workman also further contends that Sec 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadih Colliery vs Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service¹ for not less than one year under Sec. 25F read with Sec 25-B of the I. D. Act and it is as follows

"Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled

No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these."

Their Lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) : a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(24) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec. 25- B(2) reads as follows:

"Where a workman is not in continuous service within the meaning of Clause (1) 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 ihe employer not less than—

(i) one hundred and ninety days in the case of a workman employed bclow^ground in a mine; and

(u) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under ihc employer for not less than—

(i) ninety-five days, in the case of a workman employed below ground in a mine, and (ii) one hundred and twenty days, in any other case."

(25) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(26) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(27) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said6555 The point before me is not with regard to the regularisation of me services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged \>y him, is illegal.

judgment with some interruptions. Therefore, their lordships observed that even there weic some interruptions, the total period worked in a year shall be taken into consideration lo treat it as 'continuous service¹ irrespective of tht interruptions or any break of service.

(28) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(32) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour Abolition and Regulation Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

(29) The learned counsel appearing for the

management contends that the workman was employed on casual need basis to work in leave vacancies. Here the question of their termination periodically or otherwise does not arise, Any way, that aspect will be dealt separately at a later stage.

(33) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs, Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in a year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25Fofthe I.D. Act (30) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1990 and he is only a casual employee. The circulars were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice

(34) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31 -3 -97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide break attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(3 5) In support of his contention in the management's

counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I C. 1370 between Pah Central Cooperative Bank Ltd., Pali Vs Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec 25F for the ID. Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec. 25F."

v ^6) Therefore, in the light of my aforesaid discussion, (31) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the Staff Federation and the management and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreements entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management arc not binding on the workman Whatever it may be, those settlements are only with regard to the regulansation of the temporary/casual employees.

the petitioner failed to establish that his case would fall under Sec. 25F of the I.D. Act. Therefore, I see no merits in the application.

(37) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to stcno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE: ITTOfQ NO. 16 /2000 Dated • 18th day of August, 2001

I.TXD(C) 17/2000

BETWEEN:

Arji Gopala Krishna, S/o. A. Vasudcva, D No 9-137/1, Venkataramana Nagar, C/oK Acharao, Indrapalcm, Kakinada-6

....Workman WITNESSES EXAMINED:

FOR WORKMAN : WW1:1. Satyanarayana FOR MANAGEMENT: MW1: Sri C.R.M. Sastry AND

(1) The Chief General Manager,

DOCUMENTS MARKED:

FOR WORKMAN : Ex. Wl : 23-07-90 Service

certificate.

FORMANAGEMENT : Ex Ml Settlements and judgments regarding regularisa- tion of service of the temporary employees and casual employees.

State Bank oflndia. Local Head Office, Bank Street, Hyderabad.

(2) ThcDy General Manager, State Bank of India, Zonal Office, RTC Complex, 2ndFloor, Visakhapatnam-20. ...Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M Sarveswara Rao, advocates for workman and Sri M Ramdas, advocate for management.

Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following:

AWARD

New Delhi, the 17th October, 2001 S.O. 3068.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workmen, which was received by the Central Government on 16-10-2001.

[No. L-12014/25/2001-IR(B-I)]

AJAY KUMAR, Desk Officer (1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, Main Branch, Kakinada on 21-10-88 ma permanent vacancy and he served at different places till he was finally terminated at State Bank oflndia. Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATANAM PRESENT:

Sri K. Veerapu Naidu, B.Sc, B.L., Chairman & Presiding Officer.

(3) The petitioner worked in the respondent bank for 89 days from 21-10-88 to 22-2-89 and he was terminated on 22-2-89 without any notice, Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary post and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services arc absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-1981 directing the temporaiy employees should not be engaged6557 would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

for more than 200 days in a calendar year. The management did not follow the rule provided under Sec 25G of the ID. Act namely "last come first go" The retrenchment of the petitioner is only to accommodate another employee The management was paying Rs 90 per day at the time of retrenchment Hence this application

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1 st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1-A after clause 1 ir the first settlement is installed and it is as follows

"persons, who have been engaged in casual basis [as defined in clause 11 (ii) hcrcundcr] to work in leave/ casual vacancies of Messengers, Farrashes, Cash Coolies, Water Boys, Sweepers etc., for any of the periods mentioned in category 'A', 'B', and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992 " (4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act as this is not a case of discharge or dismissal, retrenchment or termination of services While it is a case of panel of candidates prepared as per the settlement entered into between the management bank and State Bank of India StaffFcdcration The petitioner was engaged as a Temporary Messenger in State Bank of India Main Branch, Kakinada in a leave vacancy As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regular vacancies It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the pclilioncr. It is false to allege that the services of the petitioner were terminated from 22-2-89 In fact, the management did not have the need to employ the workman from 31 -3-97 onwards. It is further pleaded that on 17lh November, 19X7 an agreement was arrived at between the Federation and the management bank under Sec 2(p) read with Section 18( 1) of ihc Industrial Disputes Act, 1947 read with Rule 58 of InduMrial Disputes (Central) Rules, 1957 and it is the 1 st settlement Second settlement is dated 16-7-88 between the same parties As per the 1 st settlement 3 categories A, B and C and they arc as follows :

(l) Category 'A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category 'B', those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975

(in) Category ' C\ those, who have completed a

(6) The 4th settlement was entered into between the same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the first settlement. In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers. There are 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at I Iydcrabad With regard to the above said settlement the panels of the selected candidates as well as the casual/ daily wagers were prepared zonewise separately for messengers and non-messcngers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

minimum of 30 days aggregate temporary service in any calendar year after 1 -7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calandar months after 1 -7-75. In this first settlement, it was agreed that Ihc temporary employees as categorised above

7. In pursuance of the conciliation proceedings, a settlement was entered into between the same parties on 30-7-96 it is the 5th settlement whercunder it was agreed that both the panels of temporary employees and daily6558 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KARTIKA19,1923 [PART II—SEC. 3 (ii)] wagers-cum -casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum understanding was signed on 27-2-97 between the parties to identify the messengerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non- messengenal staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 31 -3 -97.

(9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlements 1 to 5 arc binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31 -7-88 was prepared for giving a chance for being considered for appointment on permanent basis But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis

(14) It is false to allege that the juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexurc to the claim state¹1 ^ i* is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services are unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent

(16) On behalf of the workman, the workman is examined as WW1 and got marked Ex Wl On behalf of the management, the Chief Manager, State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Ex. Ml.

(17) Heard both sides.

(18) The points that arise for consideration are :

terminated at State Bank of India Main Branch, Kakinada without any notice from 22-2-89. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months proceeding to 22-2-89, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-% entered into between the State Bank of India Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID. Act.

(21) I will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year as per the circulars issued by the General Manager (Operations), State Bank of India, Hydcrab. d. A circular dated 16th November, 1997, and another is U.o circular dated 16th November, 1979 whereundcr the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter or absorption and the following facilities arc extended to them.

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calendar months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

3364 GI/2001—25

(22) It is further instructed in that:

(a) No temporary employee should be allowed, under any circumstances to cross 90 days tem- porary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calender months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment (23) Another circular dated 24th Sept, 1981 whereundcr it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1 -7-1972 lo 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period ofl2 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25- B or Sec 25F of the I. D. Act The learned counsel appearing for the workman also further contends lhat Sec 25B clause (1) where a workman was not allowed lo work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation lo ihc Digwadch Colliery Vs Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec 25- B of the I D Act and it is as follows :

"Though S. 25F speaks of continuous service for not less than one year under the employer, if Ihc workman has actually worked for 240 days during the period of 12 calendar months both the conditions arc fulfilled.. . No uninterrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these."

Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted To appreciate the above said decision and Ihc contention raised by the counsel for workman n is essential lo extract Sec 25 (B)( 1)6560 THE GAZETTE OF INDIA. NOVEMBER ] 0,2001/KARTKA19,1923 PART II—Stc. T (ii)J "25-B(l) a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the orkman on account of a cessation of work which is not je to any fault on the part of the workman shall be deemed ii. be Continuous service" under an employer Sec. 25- B(2) reads as follows ;

"Where a workman is not continuous service within the meaning of Clause (1) 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, duri ng a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 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) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in ayear shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to Ihis case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing foi the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not ansc Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W4 and Exs. W5 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1988 and he is only a casual employee, The circulars were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motiviated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the staff federation and the management and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements for regularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman. Whatever it may be, those settlements are only with regard to the regulansation of the temporary/casual cmplovces. The6561 point before me is not vith regard to the regulansation of the services of the petitioner and others. The case of the workman is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition, and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 21-10-88 and his services were retrenched without following the procedure contemplated under Sec. 25Fof the ID. Act.

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 thereafter they are not taking any one on temporary basis in the leave vacancies. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there arc no particulars of malafide breakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 2SF of the ID. Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—Does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25F of the I. D. Act. Therefore, 1 see no merits in the application.

(38) In the result, the petition is dismissed and nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001

K. VEERAPU NATDU, Presiding Officer APPENDIX OF EVIDENCE:

WITNESSES EXAMINED:

For workman:

WW1 A Gopala Krishna

For Management:

MW1 . Sri C. R M. Sastry

Documents marked:

For Workman:

Ex W l: 31-8-91 Service Certificate

For Management:

Ex Ml : Settlements and Judgments regarding regularisation of service of the temporary employees and casual employees.

New Delhi, the 17fh October, 2001

S.O. 3069.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

INo. L-12014/26/2001-lR(B-I)]

AJAY KUMAR, Desk Officer6562 c. GAZETTE OF INDIA: NOVEMBER 10,2001/KARTIKA 19,1923 [PART II—SEC 3 (ii)]

ANNEXCRE

IN THE COWRT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT, VISAKHAPATANAM¹ PRESENT:

Sn K. Veerapu Naidu, B Sc, B L, Chairman & Presiding

Officer

Dated . 18th day of August, 2001

(3) the petitioner worked in the respondent bank for 86 days from 19-10-90 to 16-1-91 and he was terminated on 16-1-91 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary posts and the petitioner was also a member in that panel, several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent* in- nature and he worked for a long period. A list of junior candidates whose services" are absorbed is LT.I.D(C) 18/2000

filed. The petitioner also gav*e hi/apjihcalion seeking for permanent employment but it was not considered. The BETWEEN:

Yanamadala China Veerabhadra Rao,

S/o Y.Tata Rao,

D. No. 9-137/1, \fenkataramana Nagar,

C/o K. Acha Rao, Indrapalem,

Kakinada-6 Workman AN)

(1) The Chief General Manager,

Slate Bank oflndia.

Local Head Office, Bank Street,

Hyderabad.

(2) The Dy General Manager,

State Bank of India,

Zonal Office, RTC Complex

2nd Floor, Visakhapatnam-20 , Management This application coming on for final hearing before me in the presence of Sri M, Suryanarayana and Sri M Sarvcswara Rao, advocates for workman and Sri M Ramdas, advocates for management. Upon hearing ihe arguments of both sides and on perusing the entire material on record, the court passed the following •

management issued a staff circular No. 91 dated 24-9-1981 directing the temporary employees should not be engaged for more than 200 days in"a calendar vcar The management did not follow the rule provided under Sec. 25G of the I.D Act namely "last come first go". Tho, retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90 per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the ID Act. as this is not a case of discharge or dismissal, retrenchment or termination of services, while it is a case of penal of candidates prepared as per the settlement entered into between the management and the State Bank oflndia Staff Federation The petitioner was engaged as a temporary Messenger in State Bank of India Main branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege

AWARD

1I) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India, Main Branch, Kakinada on 19-10-90 in a permanent vacancy and he served at different places till he was finally terminated at State Bank oflndia, Main Branch, Kakinada.

The management did not allow the workman lo work more lhan 240 days in a year with a view to deprive him to claim rcgularisation on the ground that he worked more than 240 days in a year

that the workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to ihc post in accordance with the rules Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 16-1-1991 In fact, the management did noi have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th Novcnber, 1987 an agreement was arrived at between the Federation and the management bank under Sec 2(p) read6563 with Section 10(1) of the Industrial Disputes Act, 1947 read temporary employees and casual/daily wagers separately with Rule 58 of Industrial Disputes (Central) Rules, 1957 in the vacancies likely to arise upto 1994 and 1995-96

respectively, which was also agreed to substitute the year and it i^-the 1st settlerrteRt,. Second settlement is dated 16-

19 Wwifli 1994 in the 1 st settlement In other words separate 7-88 between the same parties. As per the 1 st settlement 3

panels were prepared for temporary employees and casual/ categories A, B and C and they are as follows •

daily wagers for filling up of the vacancies arising between (i) Category A' : Those, who have completed 240

1988 to 1994 in respect of temporary employees and for days temporary service in 12 months or less after

filling up of the vacancies arising between the years 1995 1-7-1975.

to 1996 in respect of casual/daily wagers. There are 4

zones at Hyderabad, Vijayawada, Visakhapatnam and (ii) Category 'B' : Those, who have completed 270

Tirupathi covering all the disputes in Andhra Pradesh and days aggregate temporary service in any

the local head office of the respondent bank is situated at continuous block of 36 calendar mSfiths after

Hyderabad. With regard to the above said settlement the 1-7-1975.

panels of. the selected candidates as well as the casuaV (iii) Category'.'C • Those, whp'have completed a

minimum of 30 days aggregate temporary service^

in any calendar year after 1-7-75 or minimum of 70

daily wagers were prepared zonewise separately for messengers and non-messengers in thtJ decending order oft temporary service put in by the candidates during the days aggregate temporary service in any stipulated period i e. 1-7-85 to 31-7-88. The federation continuous block of 36 calendar months after approached the Regional Labour Commissioner (Central), 1 -7-75. In this first settlement, it was agreed that Hyderabad for implementation of the bipartite settlement the ternporary employees as categorised above in respect of absorption or temporary employees. Then would be given chance for being considered for Regional Labour Commissioner (Central) conducted permanent appointment in the management bank's conciliation proceedings on 9-6-95 and an agreement is service against vacancies likely to arise during arrived at between the Federation and the management the period 1987 to 1991

bank wherein it was agreed that both the panels of

temporary employees and daily wagers/casual labour will (5) As per the 2nd settlement which was agreed to

be kept alive upto March, 1997 and the vacancies will be substitute the period for being considered for permanent

filled from both the lists concurrently.

appointment in the bank against the vacancies likely to

arise from 1987 to 1992 in the place of 1987 to 1991 as

, (7) In pursuance of the conciliation proceedings, a contemplated under" 1st settlement dated 17-11-87. The3rd settlement was entered into between the same parties on settlement is entered into between the same parties on 30-7-96 it is the 5th settlement whereunderit was agreed 27-10-98 as per the said settlement clause-1-A after clause that both the panels of temporary employees and daily 1 in the first settlement is installed and it is as follows :

wagers-cum -casual employees will be kept alive upto 1997

filling the vacancies existing/arrived at as on 31 -12-94 from "persons, who have been engaged in casual basis

the panels prepared in the year 1992 for both the temporary [as defined in clause I l(ii) hereunder] to work jn leave/

employees as well as daily wagers/casual employees and casual vacancies of Messengers, Farrashcs, Cash

thereafter the said panels would lapse.

(8) Another memorandum of understanding was6564 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KARf 1KA19,1923 [PART II—SEC. 3 (ii)J (9) The vacancies as agreed upon by the above said settlements and the memorandum ot understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank.

The case of the petitioner was considered in the settlements 1 to 5 referred above, and his case have not come up for consideration. The settlements \ to 5 are binding on him.

The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 199-1 will be filled from 1989 panel on the basis of seniority. Thereafter Ihe said panels would Japsc and the remaining or left over candidates die no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that ihc temporary service icnderedduring the pciiodfiom 1 1-75 (o 31-7-88 is only to L/e taken for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement. Since the panels were already lapsed on 31-3-97 engaging their services for subsequent period does not arise. It is further pleaded that as per the settlements 1 lo 5 the vacancies have been identified and the cx- !, mporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management ihe panel of temporary employees who worked upto < 1 -7-88 was prepared for giving a chance for being considered for appointment of permanent basis. But the same did not give an right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It is false to allege that Ihc juniors to the workman arc appointed ignoring the claim of the workman and his seniority and that the post in which, he worked was permanent in nature It is false to allege that the settlement entered into between the All India State Bank Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he. is accepted he would have raised an objection before appealing for V interview.

Having availed the opportunity as per toe cmpanclmcnt it is estopped from questioning the validity of the settlement, with regard to the list of candidates set out in the annexure to tlic claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200' days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services arc unwai ranted It is false to allege that there is violation of rules in making appointment "to permanent basis. The petitioner is not entitled to any prior notice, before "he was discontinued from service owing lo lapse of panels prepared in compliance with the terms under the settlements 1 to 5 The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked EX W1. On behalf of the management, the Clucf Manager, Personnel, in the State Bank of India Olficc, Visakhapatnam is examined as MW1 and got marked Ex M I. .

(17) Heard both sides

(18) The points that arise for consideration arc • (1) Whether the petitioner was retrenched in violation of Sec 25FofthcI D. Act'? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the Slate Bank of India, Main Branch, Kakinada on 19-10-90 in a permanent vacanq and he was continued in service at various places till his services were finally terminated at State Bank of India, Main Branch, Kakinada without any notice from l(>-]-91 It is further contended that the management deprived him to serve for6565 240 days in a particular year in ordei to disentitle him to claim a regular appointment because of two circulars issued by the management

(20) On the other hand fee counsel appearing for the management contends that the petitioner never worked for more than 24i/-days m in> rilencuu v<*"r nmch less 12 months pro >• "at*, -o 16-1-91, the alleged date of termination • s a 'c '" ° Memorandum o* jinderclandmg* rfatca 2" - 2 -°" "is r,d^ of daily wagers enlisted upto i S>92 panel will be cunsideiud for filling np the vacancies which nu> an";e ii> 1995 and upto December, 1996 and thereafter the said panel lapsed It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec 25FoftheID Act

(21)1 will deal with the first contention raised by the counsel for workman; e that (he workman was not allowed to service for more than 240 days in a year as per the circulars issued by the General Manager (Operations), State Bank of India, Hyderabad A circular dated 16th November, 1997and another circular dated 16th November. 1979 wheic under the following facilities are extended to the temporary employees who completed 270 days during the period from 1st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are entered to them

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable m an interview This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz, those who have put in 240 days temporary service in 12 calendar months, have been absorbed

(u) They will be allowed relaxation in age and educational qualification and the same lines as has been allowed to the protected temporary employees

(22) Jt is further instincted in that

(a) No temporary emplcjee should he allowed under any circumstances, to cross 00 dc"ys lunporarv service in a year

•(b) Those, who have completed 270 cf^ys temporary service as above and have been re- engaged agams't regular temporary vacmcifc in terms of om e>ta^f instructions sbmi'd >"."> be alloy.u >'"*AK-t*ci:'4t) days in ' c¹' C"L~ months without pnoi reference 10 us.

(c) Under the circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary /pen. ianent appointment (23) Another circular dated 24th September, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1 -7-1972 to 30-6-1975 or a little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of! 21 ontinuous calendar months (24) Fhe learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allc ved to work more than 240 days in a calendar year Therefore, (he workman could not work for more than 240 days so as to seek the shelter under Sec 25-B or Sec 25F of the I D Act The learned counsel appearing lor the workman also further contends that Sec 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadch Colliery Vs Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec 25F read with Sec 25-B of the I D Act and it is as follows

"Though Sec 25F speaks of continuous service for not less than one vcar under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted service is necessary if the total service is 240 days in d period of 12 calendar months either before these several changes or alter these "6566 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KARTTKA19,1923 [PART II—SEC. 3(ii)] Their Lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25B(1) : a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

(25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer. Sec. 25- B(2) reads as follows :

"Where a workman is not in continuous service within the meaning of Clause (1) 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 not less than—

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer and for less than—

(i) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, if any other case "

(26) In the above said decision, their Lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions.

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 2 calendar months preceding to the alleged retrenchment either with interruptions or otherwise.

(28) As already observed above, the meaning of continuous service was given in the above said judgment.

The total working days were 240 days in the above said judgment with some interruptions. Therefore, their Lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as "continuous service" irrespective of the interruptions or any break of service, (29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously wilhir a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise does not arise. Any way, that aspect will be dealt separately at a later stage.

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs, W4 and W5 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1990 and he is only a casual employee. The circulars were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motiviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice.

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the Staff Federation and the management and accordingly, the panels of daily wagers6567 were enlisted upto 1992 and the names of the seniors were considered upto 31 -3-97 The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regulansation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regularisation of the temporary/casual employees. The point before me is not with regard to the regulansation of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Regulation and Regulation and Abolition) Act must detain licence under Sec. 7 of the Act and no such licence is forthcoming.

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Surcsh and Others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 days in an year preceding to 31 -3-97 and his services were retrenched without following the procedure contemplated under Sec 25Fof the ID. Act.

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. His services arc disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with 3364 GI/2001—26

breaks and there are no particulars of malafide breakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the I.D. Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention the management's counsel placed reliance on a Division Bench if Rajasthan High Court reported in 1994 Lab. I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Sharma wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the ID. Act that:

"the termination of the services of the daily wages employes—Not in continuous service for 240 days— His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25F of the I. D. Act. Therefore, I see no merits in this application.

(38) In the result, the petition is dismissed and Nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to stcno transcribed by her given under my hand and seal of the court this the .18th day of August, 2(X)1.

K. VEERAPU NAIDU, Presiding Officer APPENDDCOF EVIDENCE

LT.LD. (018/2000

WITNESSES EXAMINED

For workman:

WW1 : Y. ChinavccrabhadraRao

For Management:

MWl:SriC.R. K.Sastry

Documents marked

For Workman:

Ex Wl : 17-4-91: Service Certificate

For Management:

Ex. Ml . Settlements and Judgments regarding regulansation of service of the temporary employees and casual Employees.

SarvcswaraRao, advocates for workman and Sri M. Ramdas, advocate for management Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following •

AWARD

New Delhi, the 17th October, 2001 S.O. 3070 —In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

[No. L-12014/27/2001-IR(B-I)]

AJAY KUMAR, Desk Officer (1) This is an application filed under Sec. 2 A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State bank of India, main branch Kakinada on 20-11 -90 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India main branch, Kakinada The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL CUM-LABOUR COURT, VISAKHAPATNAM PRESENT:

Sri K. Veerapu Naidu, B. Sc, B.L., Chairman and Presiding Office

Dated: ISthdayof August,2001

LT.LD(C) No. 19/2000

BETWEEN:

Ycndamuri Vecrababu, S/o Lovaraju, D. No. 9-137/1, Venkataramana Nagar, C/o K. Acha Rao, Indrapalem, Kakinada-6

....Workman AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy. General Manager, State Bank of India, Zonal Office, RTC Complex, 2ndFloor, Visakhapatnam-20. ...Management This application coming on for final hearing before me in the presence of Sri M. Sury;iriaray:ina and Sri M (3) the petitioner worked in the respondent bank for 86 days from 20-4-90 to 7-4-91 and he was terminated on 7-4-1991 without any notice. Copies of yearwise breakup appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioner's post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filed. The petitioner also gave his application seeking forpermanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 200 days in a Calendar year. The management did not follow the rule provided under Sec. 25 of the I.D. Act namely "last come first go". The retrenchment of the petitioner is only to accomodate another employee The management was paying Rs. 90/- perday at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the I.D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management bank and State B ank of India Staff Federation. The petitioner was engaged as a Temporary Messenger in State Bank of India main branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31 -3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege mat Uie workman was prevented from working for 200 days to avoid legal and administrative 65(>9

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who arc also drawing scale wages difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 7-4-91. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17thNovenber, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement Second settlement is dated 16-7-88 between the same parlies, As per the 1st settlement 3 categories A, B and Cund they arc as follows "

0) Category 'A':—Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category 'B':—Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975

(6) The 4th settlement was entered into bcl^ een the sameparllcs on 9-1-91 extending the benefit io the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the > car 1992 with 1994 in the 1st settlement In other words separate panels were prepared for temporary employees and casua 1/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers. There arc 4 /ones at Hyderabad, Vijayawada, Visakhapatnam and TirupaUii covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad With regard to the above said settlement the panels of the selected candidates as well as the casual/ daily wagers were prepared zoncwise separately for messengers and non-messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the Bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceeding's on 9-6-95 and an agreement is arrived at between the federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

Ciii) Category lC:—Those, who have completed a minimum of 30 days aggregate temporary service in any calendaryear after 1-7-1975 of Minimum of 70 days aggregate temporary service in any- continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that tlie temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service, against vacancies likely to arise during the period 1987 to 1991.

7 In pursuance of the conciliation proceedings, a settlement'was entered into between the same parties on 30-7-96 it is the 5Ui settlement whereundcr it was agreed lhat both the panels of temporary employees and daih wagers cum casual employees \\ ill be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the > ear 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to" 1992 in the place of 1987 io 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27-10-98 as per the said settlement a clause 1-A*after clause 1 in the first settlement is installed and it is as follows :

"persons, who have been engaged in casual basis

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the messcngerial \acancies as on 31-12-94 has since been completed b> Central Office and thereby 403 mcssengcrial vacancies were sanctioned to tills circle of the management and other vacancies also ma> be filled from 1989 panel for temporary employ ees after effecting conversion from full time non-messengerial staff in the usual manner Therefore, an agreement was entered on 30-7-90 that both the panels of temporary employees and daih wagers/causal labours would lapse on 31 -3-97

[as defined in clause 11 (ii) hereunder] to work in leave/casual vacancies of Messengers, Farrashes, Cash Collies, Water Boys, Sweepers etc., for any of the periods mentioned in category "A¹, ' B\ and 'C in clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992."6570 "•m GAZETTE OF INDIA: NOVEMBER 10.2001/KARTIKA19,1923 [PART II—SEC. 3(ii)] (9) The vacancies as agreed upon by the above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he lias put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank. The case of the petitioner was considered in Uic settlements 1 to 5 referred above and his case have not come up for consideration. The settlements lo 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December. 1994 will be filled from 1989 panel on (he basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates have no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December. 1996 tlie said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that tlie temporary service rendered during (lie period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent lo (his period arc not counted as per the agreement. Since tlie panels were already lapsed on 31-3-97 engaging (heir service for subsequent period docs not arise. It is further pleaded thai as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis. But the same did not give a right to any ofthc cinpjuiclled candidates to have their services regularised on permanent basis.

raised an objection before appearing for tlie interview, Having availed Uic opportunity as per tlie empanelment it is estopped from questioning Uic validity of the settlement. With regard to the list of candidates set out in the anne.vure to the claim statement it is submitted thai all tlie 7 candidates were seniors to tlie workman and they worked for 241 days, 276 days. 179 days. 220 days, 179 days. 196 days and 200 days respectively Tlie circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services arc unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of p;incls prepared incompliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable lo be rejected.

(15) The 1st respondent adopted tlie counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as VVW1 and got marked Exs. W1. On behalf of the management, the Chief Manager, Personnel, in tlie Stale Bank of India Office. Visakhapatnam is examined as MW1 and got marked Exs. M1.

(17) Heard both sides.

(18) The points that arise for consideration are :

(1) Whether the petitioner was retrenched in violation orScc. 25Fof|hcl. D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for¹' (19) The lc;imcd counsel appearing for Uic petitioner contends that the petitioner was initially appointed as a Messenger in the Stale Bank of India, main branch Kakinadaon 20-11-90 in a permanent vacancy and he was continued in service at various places till his sen ices were finally terminated at Stale Bank of India Main Branch, Kakinada without any notice from 7-4-91, II is further contended thai the management deprived him lo serve for 240 days in a particular year in order lo disentitle him lo claim a regular appointment becauseofiwo circulars issued by the management.

(20) On the other hand, Uic counsel appearing for the management contends that (he petitioner never worked jS571

during the penodfrom 1-7-1972 to 30-6-1975 ora little later should not be engaged in temporary v acancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months for Filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed It is also further contended'that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim mto the harbour of Sec 25FoffheID Act

(21) I w ill deal with the first contention raised by the counsel for workman i e that the workman w as not allowed to serve for more than 240 days in a vear as per the circulars issued by the General Manager (Operations), State Bank of India, Hyderabad circular dated 16 November, 1997 and another is the circular dated 16th November, 1979 whereunder the following facilities ..re extended to the temporary employees who completed 270 days during the penodfrom 1 st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities .ire extended to them

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days m a calendar year Therefore, the workman could not w ork for more than 240 days so as to seek the shelter under Sec 25 B or Sec 25FoftheID Act The learned counsel appearing for the workman also further contends that Sec 25B clause (1) w here a workman was not allow ed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in ATR1966 SC 75 between Employers in relation to the Digwadth Colliery Vs Their workmen, wherein their Lordships were pleased to give the meaning of the expression "continuous service' fornot less than one year under Sec 25F read witli Sec 25 B of the ID Act and it is as follows

' Though S 25F speaks of continuous service for not less than one year under the employ cr, if the w orkinan has actually worked for 240 davs during the period of 12 calendar months both Ihe conditions are fulfilled No uninterrupted sen ice is necessary if the total service is 240 days m a period of 12 calendar months cither before these several changes or after these '' (i) The temporary employees, who have worked in subordinate cadre for 270 days ormore during 1-7-72 to 10-6-75 ora little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to theirbcmg otlierw lse eligible and found suitable in an interview Tin s would, however, be subject to the constramts of reservation of vacancies for SC/ST candidates and after protected temporary employees viz , those w ho hav e put in 240 days' temporary service in 12 calender months, have been absorbed

Their lordships obscrv ed that the serv ice for 240 days in a period of 12 calendar months is equal not only to service fora year but is to be deemed continuous service even if interrupted To appreciate the abov e said decision and the contention raised by the counsel for w orkman it is essential to extract Sec 25 B( 1)

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees

(22) It is further instructed that

(a) No temporary employ ee should be allow cd, under any circumstances, to cross 90 days temporary service m a year

"25 B(l) a workman shall be said to be in continuous service, for a period if he is, for that period, inunintcrrupted serv ice, includmg service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman "

(b) Those, who have completed 270 days temporary service as above and have been re-engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us

(25) The learned counsel for workman contends that even if there was any interruption in the service of Uie workman on account of a cessation of work which is not due to any fault on the part of the workman shall be deemed to be "continuous service" under an employer Sec 25 B(2) reads as follows

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment

"Where a workman is not in continuous service within the meaning or Clause (1) for apenod of one year or six months, he shall be deemed to be m continuous service under an employer—

(23) Another circular dated 24th Sept , 1 9 81 whercunder it is instructed that Ihe temporary employees who have completed 270 days aggregate service ormore6572 THE GAZETTE Of INDIA: NOVEMBER 10,2(X) I/KARTIKA 19,1923 [PART II—Stc. 3 (ii)] (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, lias actually worked under the employer 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) for a period of six months, if the workman during a period of six 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) ninety-five days, in the case of a workman employed below ground in a mine; and

(ii) one hundred and Iwcnty days, in any other case ''

(2(>) In the above said decision, their lordships have considered (lie service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits thai the above said decision has no application lor the reason thai the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise.

(2S) As already observed above, Uic meaning of continuous service was given in the above said judgment. The loial working days were 240 days in the above said j ndgment with some interruptions. Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service.

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as ^ Wl admitted that he did not work for 240 days in a calendar year because ofthc periodical termination made by the respondent.

(10) The learned counsel appearing for the management contends that the workman was employed on casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise docs not arise Any way, that aspect will be dealt separately at a later stage

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs W4 and W5 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1990 and he is only a casual employee. The circulars were issued in the years 1979 and and^ 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motivated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labourpractice.

(32) It is further contended by the workman that the management in this case is placing reliance on'5 settlements entered into between the Staff Federation and the management and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31 -3-97. The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as lie is only a daily wager. Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements lbrrcgularisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management. Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the rcgularisation of Uic temporary/casual employees. The point before me is not with regard to the rcgularisation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in Uic place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the manage- ment in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forth corning (34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis Therefore, the doctrine of lifting the veil to do justice between the6573 parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is that he did not served for more than 240 days in a year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the l.D. Act.

(35) On "IC other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. His services are disengaged as there is no continuous availabilin C*" leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of mala fide breaks attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement.

(36) In support of his contention it the manage- ment's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Cooperative Bank Ltd., Pali Vs. Sunil Kumar Shanna wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the l.D Act that:

"the termination of the services of the daily employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I see no merits in this application.

(38) In the result, the petition is dismissed and Nil Award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001,

K. VEERAPU NAIDU, Presiding Officer APPENDIX OF EVIDENCE:

WITNESSES EXAMINED: FOR

WORKMAN: MANAGEMENT:

WW1Y. Veerababu MW1 Sri CR.M. Sastry Documents marked for workman:

Ex. Wl 2-9-96 Service Certificate.

Documents marked for Management:

Ex.Ml: Settlements and judgments regarding rcgularisation of services of the temporary employees and casual employees.

New Delhi, the 17thOctober, 2001 S.O. 3071.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001,

[No. L-12014/28/2001-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT VISAKHAPATANAM PRESENT:

Sri K. Veerapu Naidu, B. Sc, B.L., Chairman & Presiding Officer

Dated: 18th day of August, 2001

LT.LD(C)No. 20/2000

BETWEEN:

Gudapati Swamy Raju, S/o. G Veerraju, D. No. 9-137-1, Venkataramana Nagar, C/o K. Acha Rao, Indrapalem, Kakinada-6.

....Workman AND

(1) The Chief General Manager,

State Bank of India, Local Head Office, Bank Street, Hyderabad.

(2) The Dy, General Manager, State Bank of India, Zonal Office, RTC Complex, 2nd Floor, Visakhapatnam-20. .. .Management This application coming on for final hearing before me in the presence of Sri M. Suryanarayana and Sri M. Sarveswara Rao, advocate for workman and Sri M. Ramdas, advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following ;

AWARD

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(2) The case of the petitioner is that he was appointed as Messenger in the State Bank of India, main branch Kakinada on 3-1-89 in a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Main Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

(3) The petitioner worked in the respondent bank for 89 days from 3-1-89 to 5-4-89 and he was terminated on 5-4-89 without any notice. Copies of yearwise break up appointment of the petitioner is hereby filed, The management used to maintain the panel of candidates to be appointed on temporary basis posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he worked for a long period. A list of junior candidates whose services are absorbed is filled. The petitioner also gave his application seeking forpermanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-91 directing the temporary employees should not be engaged for more than 200 day s In a Calendar year. The management did not follow the rule provided under Sec. 25G of the I.D. Act namely "last come first go". The retrenchment of the petitioner is only to accommodate another employee. The management was paying Rs. 90/- per day at the time of retrenchment. Hence this application.

(4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2A of the I.D. Act, as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of panel of candidates prepared as per the settlement entered into between the management State Bank of India, and the State Bank of India Staff federation. The petitioner was engaged as a Temporary Messenger in State Bank of India main branch, Kakinada in a leave vacancy. As per the settlement mentioned above, the empanelled candi- dates were employed depending upon the vacancies till 31-3-97 and juniors who arc left over from the empanelled list could not be accommodated for want of regular vacancies. It is false to allege that another person was appointed in the place of workman to get over the administrative and legal difficulties. It is also false to allege that the workman was prevent cd from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner. It is false to allege that the services of the petitioner were terminated from 5-4-89. In fact, the management did not have the need to employ the workman from 31-3-97 onwards. It is further pleaded that on 17th Novenbcr, 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 10(1) ol Uie Industrial Disputes Act. 1947 read with Rule 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. Asperthe 1st settlement 3 categories A, B and C and they are as follows :

(i) Category 'A':—Those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category 'B';—Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Category 'C:—Those, who have completed a minimum of 30 days aggregate temporary service in any calendar year after 1 -7-1975 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 199] as contemplated under 1st settlement dated 17-11-87. The3rd settlement is entered into between the same parties on 27-10-88 as per said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as follow :

"persons, who have been engaged in casual basis [as defined in clause 1 l(ii) hereunder] to work in leave/Casual vacancies of6575 and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full time non-messengerial staff in Uie usual manner. Therefore, an agreement was entered on 30-7-96 that both the panels of temproary employees and daily wagers/causal labours would lapse on 31-3-97.

Messengers, Farrashcs, Cash Coolies, Water Boys, Sweepers etc., for any of the periods mentioned in category 'A', B\ and "C in Clause 1 will be given a chance for being considered for permanent appointment in Uie bank's service against vacancies likely to arise from 1988 to 1992."

Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(9) The vacancies as agreed upon by Uie above said settlements and the memorandum of understanding were filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days Uian Uiose persons who has been absorbed and the petilioncr did not work continuously for so many years as alleged by him and he has put in less Uian 240 days in a continuous 12 monUis period from 1-7-75 to 31-7-88 and as such, he has no right to ask for absorption in Ut „ management bank. The case of the peUtioncr was considered in Uie settlements 1 to 5 referred above and his case have not come up for consideration. The settlements 1 to 5 arc binding on him. The management did not violate any of die terms of the settlements.

(10) It is further pleaded Uiat as per Uie settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and Uie remaining or left over candidates arc no claim whatsoever for being considered for permanent absorption in die bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December. 1996 the said panel of the year 1992 also shall stand lapse and Ihe remaining candidates in (he panel will have no claim whatsoever for being considered for permanent absorption in Uie bank.

(12) It is further pleaded that the temporary service (6) The 4th settlement was entered into between the same parties on 9-1 -91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement, hi other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of live vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers. There are 4 Zones at Hyderabad, Vijayawada. Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and Uie local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of Uie selected candidates as well as the casual/ daily wagers were prepared zonewisc separately for messengers and non-messengers in Ihe decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to .11-7-88. The Federation approached the Regional Labour Commissioner .(Central). Hyderabad for implementation of the Bipartite settlement in respect of absorption of temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceedings on 9-6-95 and an agreement is arrived at between the Federation and Ihe management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently .

rendered during Uie period from 1 -1 -75 (o 31 -7-88 is only to be taken for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement. Since the panels were already laped on 31-3-97 engaging Uicir service for subsequent period docs notarise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the e.\- Icmporary employees in the panels were absorbed on the basis of seniority.

(7) In pursuance of the conciliation proceedings, a settlement was again entered into between the same parties on 30-7-96 it is the 5lh settlement whercunder it was agreed that both Uie panels of temporary employees and daily wagers-cum-casual employees will be kept alive upto 1997 filling Uie vacancies existing/arrived at as on 31-12-94 from Uie panels prepared in Uie year 1992 for boUi Uie temporary' employees as well as daily wagers/casual employees and Uicreaftcr the said panels would lapse.

(13) It is further pleaded that as per Ihe settlement reached between Uie Staff Federation and the management the panel of temporary employees who worked upto 31-7-88 was prepared for giving a chance for being considered for appointment on permanent basis. Bui (he same did not give a right lo any of Uie empanelled candidates to have their services regularised on permanent basis.

(8) AnoUier memorandum of understanding was signed on 27-2-97 between the parties to identify Uie messengerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circle of the management

(14) It is false to allege that die juniors lo Uic workman arc appointed ignoring the claim of the workman and his 3364GI/2001—276576 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA 19,1923 [PART II—SEC. 3 (ii)] seniority and that the post in which he worked was permanent in nature It is false to allege that the settlement entered into between the Al I India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. Th e workman app eared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the cmpanelment it is estopped from questioning the validity of the settlements. With regard to the list of candidates set out in the annexure *o the claim statement it is submitted that all the 7 candidates ere seniors to the workman and they v\ orked for 241 days, 2 ' da 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-81 has no re'. ,ance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services arc unwarranted It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior nolicc, before he was discontinued from service owing to lapse of panclsprepared in compliance with the terms under the settlements 1 to 5. The wonkman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Ex. Wl. On behalf of the management, the Chief Manager, Personnel, in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Ex. M1.

(17) Heard both sides.

(1S) The points that arise for consideration are :

(1) Whether the petitioner was retrenched in violation of Sec. 25F of the I D Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Main Branch on 3-1-89 in a permanent vacancy and he was continued in service at various places lill his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 5-4-89. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management.

(20) On the other hand, the counsel appearing for the management contends that thepctitioncrneverworked for more than 240 days in any calendar year much less 12 months preceding to 5-4-89, the alleged date of termination.

It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88. 17-10-88, 9-1-91 and 30-10-96 entered into between the StateBank of India Federation and the management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25F of the ID. Act.

(21)1 will deal with the first contention raised by the counsel for workman i, e. that the workman was not allowed to serve for more than 240 days in a year as per the circulars issued by the General Manager (Operations), State Bank of India, Hyderabad circular dated 16th November, 1997 and another circular dated 16th November, 1979vvhereunder the following facilities are extended to the temporary employees who completed 270 days during the period from 1 st July, 1972 to 30lh June, 1975 or a little later in the matter or absorption and the fallowing facilities are extended to them.

CO The temporary employees, who have w orked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subjectto their being otherwise eligible and found suitable in an interview. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in 12 calender months, have been absorbed.

(ii) They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in (hat:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

lobe continuous service under an employ er Sec 25-B(2) reads as follows

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications should be offered temporary /permanent appointment

Where a workman is nol m continuous scrv ice w uhin the meaning of Clause (1) for a period of one \ ear or six months he shall be deemed to be in continuous serv ice under an emplover—• (21) Another circular dated 24lh September, 1981 whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 ora little later should not be engaged in temporary v acancics for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months

(a) for a period of one} ear, if the workman, during a penod of tw elve calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer not less than—

0) one hundred and ninety day sin the case of a w orkman employ cd below ground in a mine, and

(n) tw o hundred and forty days in any other case,

(b) for a penod of six months, if the workman during a penod ot six calendar months preceding the dale vvilh reference to vv Inch calculation is to be made has actually worked under ihc employ er and for less than—

(I) ninety-five days in the case of a workman

employed below ground in a mine, and

(n) one hundred and tw enty day s, if any other

case

(24) The learned counsel appearing for the workman contends that because of the above said two circulars the workman was not allowed to work more than 240 days in calendar year Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec 25- B or Sec 25FofthcI D Act The learned counsel appearing for the workman also further contends mat Sec 25B clause (1) where a workman was not allowed to work due to no fault on his part he shall be deemed to be in continuous service and in support ofhis contention he placed reliance on a decision of me Apex C ourt reported in AIR 1966 SC 75 between Employers in relation to (he Digwadth Colliery Vs Their workman wherein thcirLordships wcreplcascd to give the meaning of ihc c\prcssion continuous sen ILC lor not less than one \car under Sec 25F read wilh Sec 25- B of Ihc I D Act and it is as lollows

(26) In the above said decision their Lordships have considered the service oflhe workman worked for more than 240 days in each calendar year though wilh some interruption

Though Sec 251 speaks ol continuous sen ice for not less than one year under ihecmplo\cr, if Ihe workman has actually worked for 240 days during the penod of 12 calendar months both the conditions .ire fulfilled No uninlemiplul scrv ice is necessary il the total service is 240da\s in ,i penod of 12 calendar months cilher before these several changes or alter these

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case hav c not w orked 240 day s m 12 calendar months preceding to the alleged retrenchment either with interruptions or othcrw isc

1 licir Lordships observed that the service for 240 da\ s in .i period ol 12 calend.ir months is equal not only lo serv ice for a v car but is (o be deemed continuous service even if interrupted I o appreciate Ihc abov c said decision and the contention raised by the counsel for workman H is essential to extract Sec 25-B( I)

(2S) As already observed above, the meaning of continuous serv ice was giv en in the above said |udgmcnt The lolal working days were 240 days in Ihc above said liidgincnt with some interruptions Therefore their lordships observed that even there w ere some interruptions, the total penod worked in a year shall be taken into consideration to treal H as continuous service irrespective of the intcrniplionsorany break of service

25 B(l) a workman shall be said lo be in continuous service, for ,i period ifhc is for lh.it period, in uninterrupted service, including service which may be interrupted on account ol sickness or authorised leave or an accident or a strike which is nol illegal or a lockoul or a cessation of work which is not due lo any fault on the part ol the workman

(29) Lvcn applying ihc above said decision to this case the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calcndarycarbccauscoflhcpcnodical termination made by Ihc respondent

0 0) The learned counsel appearing for the (25) The learned counsel for workman contends thai even if there was any interruption in the service ol the workman on account ol a cessation of work which is nol ducloan\ fault on the par! oflhc workman shall be deemed m.uiagcmcnl contends that the workman was employ cd on6578 ~^m GAZETTE OF INDIA NOVEMBER 10,2(X) I/KARTIKA 19,1923 [PART II—So 3(u)| casual need basis to work in leave vacancies Hence the question of their termination periodically or otherwise does not arise Any way, that aspect will be dealt separately at a later stage

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous serv ice and it is not his fault and he shall be deemed that he had worked for more than 240 days in a v car and he also further contends that because of the circular issued by the management under Exts W4 and W5 the workman w as not allowed to work for more than 240 days in a year This contention has no force because the workman joined in the service in the year 1989 and he is onlv a casual employee The circulars were issued in the years 1979 and 198land they were issued much earlier than the date of joining of the workman in the scrv ice Therefore, it cannot be said that those circulars w ere motiviated to depnv e the workman from claiming their legitimate nghts and that the management indulged in methods amounting to unfair labourpractice

(32) It is further contended by the w orkman that the management in this case is placing reliance on 5 settlements entered into between the Staff Federation and the management and according!},, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97 The petitioner and others could not got selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered into agreements forregulansation of the temporary employees and certain guidelines w ere given and that the employees of the list for regular appointment w as prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the rcgulansation of the temporary/casual employees The point before me is not wiUi regard to the regularisaUon of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal

(33) The learned counsel appearing for the workman contends that in the place of the petitioner some contract labour is engaged and that the work is perennial in nature and as such, the services of the petitioner cannot be terminated It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec 7 ofthe Act and no such licence is forthcoming (34) Tins contention has no force because it is not the case ofthe management that in the petitioner's place some body else is emplov ed on contract basis Therefore, the doctrine of lifting the veil to do justice between the parties as was held in theSecretan Harvana State Tflec- tncity Board Vs Suresh and Others etc reported in AIR 1999 Supreme Court 1160 have no application Here the simple case of the workman is that he did not serve for more than 240 davs in a year preceding to 31-3-97 and his services were retrenched without follow ing the procedure contemplated under Sec 25F of the I D Act

(35) On the other hand, the case ofthe management is that the workman is only a casual labour used to be engaged in the leave \ acancies upto 31 -3-97 and thereafter they arc not taking anyone on temporary basis in the lea\ e vacancies The management placed E\ Ml statement show ing the number of days the petitioner w orked during the relevant period Therefore, as rightlv contended bv the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of mala fide breaks attributable to the management The workman in tins case is not in continuous service of 240 days as required under Sees 25F and 25B ofthe ID Act Hence the petitioner cannot ask for reinstatement

(36) In support of his contention the management's counsel placed reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I C 1370 between Pali Central Cooperative Bank Ltd, Pali Vs Sunil Kumar Sharma wherein their lordships ofthe Rajasthan High Court were pleased to held under Sec 25F of the ID Act that

"the termination of the services ofthe daily wages employes—Not in continuous service for 240 days—- His verbal termination of services—docs not violate Sec25F"

Therefore, the above said decision squarely applies to the case on hand

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec 25F of the I D Act Therefore, I sec no ments in Uic application

(38) In the result, the petition is dismissed and Nil Award is passed However, there is no order as to costs and each party is directed to bear Us own costs Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001

K VEERAPU NAIDU,Presidmg Officer6579

APPENDIX OF EVIDENCE:

AND

1. The Chief General Manager,

WITNESSES EXAMINED: FOR

WORKMAN: MANAGEMENT:

WW1G. Swamy Raju MWI Sri C.R.N. Sastry

State Bank of India, Local Head Office, Bank Street, Hyderabad.

Documents marked for workman:

2. The Dy, General Manager,

Ex.Wl; 29-6-90 : Service Certificate.

Documents marked for Management:

State Bank of India, Zonal Office, RTC Complex 2nd Floor, Visakhapatnam-20, ...Management Ex,Ml: Settlements and judgments regarding regularisation and services of the temporary employees and casual employees.

"^ fe^fl, 17 ^PRpI, 2001

This application coming on for final hearing before me in the presence of Sri M, Suryanarayana and Sri M. Sarveswara Rao, advocates for workman and Sri M. Ramdas, Advocate for management, upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

^T.OT. 3072.-3^^^1^ faqiS arfaftm, 1947 (1947

AWARD

°fi114)^tiTO17%3ljy

^ i n W S ^ ' t i ^^ R^l^^l afUd-i^i ti4o)i|

(1) This is an application filed under Sec. 2A(2) of the Industrial Disputes Act, 1947 for reinstatement with back wages.

favmsdHi-M % M^iid'Sfit y"blfi!lfl "h<

I6-10-2001 ^ ^ M ^ a n qr i

(2) The case of the petitioner is that he /as [U "^-12014/29/2001-3?^am (^t-I)J

New Delhi, the 17th October, 2001

appointed as Messenger in the State Bank of India, Yanam branch in the month of June 1985 is a permanent vacancy and he served at different places till he was finally terminated at State Bank of India Yanam branch. East Godavari District. The management did not allow the work- man to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more than 240 days in a year.

S.O. 3072.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam as shown in the Anncxure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their workman, which was received by the Central Government on 16-10-2001.

INo. L-12014/29/2001-IR(B-I)]

AJ AY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT; VIS AKHAPATANAM

PRESENT:

Sri K. Vecrapu Naidu, B.Sc, B.L., Chairman &

Presiding Officer

Dated: 18th day of August, 2001

LT.LD(C) No. (C) 30/2000

(3) The petitioner worked in the respondent bank for 637 days from June 1985 to 23 -3-97 withbrcakes and he was terminated on 23-3-97 without any notice. Copies of yearwise break up appointment of the petititioner is hereby filed. The management used to maintain the panel of candidates to be appointed on temporaray basis posts and the petitioner was also a member in that panel, scv eral juniors arc appointed ignoring the petitioner's seniority. The petitioners post is a permanent in nature and he w orked for a long period. As list of junior candidates whose services are absorbed in filed. The pctiioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91datcd 24-9-81 directing the temporary employees should not be engaged for more than 240 days in a calendar year. The management did not follow the rule provided under Sec. 25G of the l.D. Act namely "last come first go". The management of the petitioner is only to accommodate another employee. The management was paying Rs. 90 per day at the time of retrenchment. Hence mis application.

BETWEEN:

1,4) The second respondent filed its counter pleading that this application is not maintainable under Sec. 2 A of the l.D. Act. on this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case Salagrama Voora Venkata Satyanarayana, S/o.Venkata Seshagiri Jagannadham Vinjaram, TallarevuMandalam E.G.Dist

...Workman

of penal of candidates prepared as per the settlement entered into between the management and the State Bank of India Staff Federation. The petitioner was engaged as a temporary Messenger in State Bank of India, Yanam branch, in a leave vacancy. As perthe settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 31-3-97 and juniors who are left over from the empanelled list could not be accommodated for want of regularvacancies.lt is false to allege that another person was appointed in the place of workman to get ovcrthe administrative and legal difficulties. It is also false to allege that the workman was prevented from working for 200 days to avoid legal and administrauve difficulties so that he would not reach the statutory' period of 240 days which would give him a right to be regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed to the post in accordance with the rules. Therefore, the concept of "retrenchment" cannot be extended to the petitioner It is false to allege that the services of the petitioner were terminated from 23-3-97. In fact, the management did not have the need to employ the workman from 23-3-97 onwards. It is further pleaded that on 17th November. 1987 an agreement was arrived at between the Federation and the management bank under Sec. 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 oflndustrial Disputes (Central) Rules, 1957 and it is the 1st settlement, Second settlement is dated 16-7-88 between the same parlies As perthe 1st settlement 3 categories A, B and C and they arc as follows:

(i) Category A', those, who have completed 240 days temporary service in 12 months or less after 1-7-1975.

(ii) Category ' B\ those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

(iii) Category C\ those, who have completed a minimum of 30 days aggregate temporary service in any calendarycar after I-7-1975 or minimum of 70 days aggregate temporary service in any continuous block of 36 calandar months after 1 -7-75. In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during the period 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parties on 27- ]0-88asperthe said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as follows :

"persons, who have been engaged in casual basis [as defined in clause 11 (i) hcreundcr] to work in leave/ casual vacancies of Messengers, Farrashes, Cash Collies, Water Boys, Sweepers clc, for any of the periods mentioned in category A', "B\ and 'C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992." Therefore, casual/daily wagers were also to be considered for permanent absorption along with the temporary employees who are also drawing scale wages.

(6) The 4lh settlement was entered into between (he same parties on 9-1-91 extending the benefit to the cases of temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1st settlement. In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 lo 199d in respccl of casual/daily wagers. There ;irc 4 /.ones at Hyderabad, Vijayawadn. Visakhapatnam and Timpathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels ofthc selected candidates as well as the casual/daily wagers were prepared zoncwisc scparalcly for messengers and non- messcngers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1-7-85 to 31-7-88. The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of tJic bipartite scfllcmcnt in respect of absorption or tcmponiry employees. Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that both the panels of temporary employees and daily wagers/casual labour will be kept alive upto March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) In pursuance of the conciliation proceedings settlement was entered into between the same parlies on 30-7-96 it is the 5th settlement whercundcr it was agreed that both the panels of temporary employees and daily wngcrs-cum-casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as oiH 1 -12-94 from the panels prepared in the year 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parlies lo identify the6581 messengerial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengerial vacancies were sanctioned to this circl e of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full non-messengerial staff in the usual manner Therefore, an agreement was entered on 30-7-96 that both the panels of temporary employees and daily wagers/causal labours would lapse on 11-3-97.

(9) The vacancies as agreed upto by the abov c said settlements and the memorandum of understanding w ere filled with the eligible candidates in the panels. The petitioner herein has not put in more number of da\ s than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he has put in less than 240 days in a continuous 12 months period from 1 -7-75 to 31-7-88 and as such, he has no right to ask for absorption in the management bank The case of the petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlements 1 to 5 are binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1 -91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 1989 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidate have no claim whatsoever for being considered for permanent absorption in the bank.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel of the year 1992 also shall stand lapse and the remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank.

(12) It is further pleaded that the temporary service rendered during the period from 1-1-75 to 31-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period are not counted as per the agreement Since the panels were already lapsed on 31-3 -97 engaging their services for subsequent period does not arise. It is further pleaded that as per the settlements 1 to 5 the vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(13) It is further pleaded that as per the settlement reached between the Staff Federation and the Management the panel of temporary employees who worked upto 31-7- 88 was prepared for giving a chance for being considered for appointment of permanent basis. But the same did not give a right to any of the empanelled candidates to have their services regularised on permanent basis.

(14) It isfalse to allege thatthe juniors to the workman are appointed ignoring the claim of the workman and his seniority and that the post in which he worked was permanent in nature. It is false to allege that the settlement entered into between the All India State Bank of India Staff Federation and the Management is illegal and not binding on the workman. The workman appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanclment it is estopped from questioning the validity of the settlements With regard to the list of candidates set out in the annexure to tne claim statement it is submitted that all the 7 candidates were seniors to the workman and they worked for 241 days. 276 days, 179 days, 220 days, 179 days, and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services arc unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis, The petitioner is not entitled to any prior notice, before he was discontinued from serving owing to lapse of panels prepared incompliance with the terms under the settlements 1 to 5, The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted the counter filed by the 2nd respondent.

(16) On behalf of the workman, the workman is examined as WW1 and got marked Exs. Wl to W5. On behalf of the management, the Chief Manager, Personnel, in the State Bank of India Office, Visakhapatnam is examined asMWl and got marked Exs Ml andM2.

(17) Heard both sides.

(18) The points that arise for consideration arc:

(1) Whether the petitioner was retrenched in violation of Sec. F of the I. D. Act? (2) Whether the petitioner is entitled for reinstatement with back wages as prayed for?

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger in the State Bank of India, Yanem branch in Uie year 1985 in a permanent vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Yanam branch, Kakinda without any notice from 24-3-97. It is further contended that the management deprived him to serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by the management Exs. 4 and 5.

(20) On the other hand, the counsel appearing for the management contends that the petitioner never worked for more than 240 days in any calendar year much less 12 months preceding to 1 -4-97, the alleged date of termination. H is also the further contention that by virtue of the 4 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1-91 and 30-10-96 entered into between the State Bank of India Staff Federation and the Management and the Memorandum of understanding dated 27-2-97, the panels of daily wagers enlisted upto 1992 panel will be considered for Tilling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case as retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25Fofthel.D. Act. (21)1 will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W4 and W5 issued by the General Manager (Operations), State Bank oflndia, Hyderabad. Ex. W4 is a circular dated 16lh November, 1997. Ex.W5 is the circular dated 16th November, 1979 whercunder the following facilities arc extended to the temporary employees who completed 270 days during the period from 1 st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities arc extended to them:

(i) The temporary employees, who have worked in subordinate cadre for 270 days or more during 1-7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an view. This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days 'temporary service¹ in 12 calendar months, have been absorbed.

00 They be allowed relaxation in age and educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W5 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have been re- engaged against regular temporary vacancies in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under no circumstances, candidates, who do not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex,W4 is another circular dated 24th Sept., 1981 where under it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 ora little later should not be engaged in temporary vacancies for a period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The learned counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calendar year. Therefore, the workman could not work for more than 240 day-; so as to seek the shelter under Sec. 25-B or Sec. 25F of the I. D. Act. The learned counsel appearing for the workman also further contends that Sec. 25-B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation to the Digwadtli Colliery Vs. Their Workmen, wherein their lordships were pleased to give the meaning of the expression 'continuous service' fornot less than one year under Sec. 25F read with Sec. 25-B of the I. D. Act and it is as follows:

' 'Though S. 25 F speaks of continuous service for not less than one year under the employer, if the workman had actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No uninterrupted scrv ice is necessary if the tota I service is 240 days in a period of 12 calendar months either before these several changes or after these." Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) a workman shall be said to be in continuous service, for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."6583 as WW1 admitted that he did not work for 240 davs in a calendar y ear because of the periodical termination made b\ the respondent

(30) The learned counsel appearing for Ihc (25) The learned counsel for workman contends that even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault on the part of (he workman shall be deemed to be 'continuous service' underan employer Sec 25-B(2) reads as follows

management contends that the vv orkman w as employ ed on casual need basis to work in leave vacancies Here the question of their termination periodically or otlierw lse docs not arise Anv v\ a>, that aspect w ill be dealt separatel \ at J later stage

"Where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer—

(31) The learned counsel appearing for the \\ orkman (a) for a penod of one year, if the w orkman, 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 not less than—

CO one hundred and ninety days in the case of

a workman employed below ground m a mine, and

(ii) two hundred and forty davs, in any other

case,

submits that because he is not prov ided w ith anv vv ork he could not be able to complete 240 da> s continuous sen ice and it is not his fault and he shall be deemed that he had \\ orked for more than 240 dav s in a y car and he also furth cr contends that because of the circular issued bv the management under Exs W4 and W5 the vv orkman was not allowed to work for more than 240 days in a \car Tins contention has no force because the workman joined in the service in the year 1983 and he is onlv a casual employee The circulars Exs W4 and W5 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman m the service Therefore, it cannot be said that those circulars were motiv lated to deprive the workman from claiming their legitimate rights and that the management indulged in methods amountingto unfair labour practice (b) for a period of six months, if the workman during a period of six 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) ninety-five days, m the case of a workman

employed below ground in a mine, and

(ii) one hundred and twenty davs, if any other

case "

(26) In the above said decision, their lordships have considered the service of the workman worked for more than 240 days in each calendar year though with some interruptions

(27) Therefore, the learned counsel appearing for the management submits that the above said decision has no application for the reason that the workman in this case have not worked 240 days in 12 calendar months preceding to the alleged retrenchment either with interruptions or otherwise

(32) It is further contended by the w orkman that trie management in this case is placing reliance on 5 settlements entered into between the staff federation and the management (as containled in E\ M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and die names of the seniors were considered upto 31-3-97 The petitioner and others could not get selection The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager Here the workman in his evidence admitted that he was also interviewed and his name was also included in the panel list He also admitted that Staff Association and the management entered mto agreements for regulansation of the temporary employees and certain guidelines were giv en and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management Therefore, it cannot be said that the said settlements entered between the Staff Association and the management are not binding on the workman Whatever it may be, those settlements are only with regard to the regulansation of the temporary/casual employees The point before me is not with regard to the regularisation of the services of the petitioner and others The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal (28) As already observed above, the meaning of continuous service was given in the above said judgment The total working days were 240 days in the above said judgment with some interruptions Therefore, their lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service

(3 3) The learned counsel appearing for the workman contends Uiat in the place of the petitioner some contract labour is engaged and that the work is perennial m nature (29) Even applying the above said decision to tins case, the workman did not complete 240 days service continuously within a period of 12 months and the workman

3364GI/2001—286584 THEGAZETTEOFINDIA:NOVEMBER10,2001/KARTIKA19,1923 [PARTn—SEC. 3(ii)J and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour Abolition, and Regulation Act must obtain licence under Sec. 7 of the Act and no such licence is forthcoming.

Dictated to steno transcribed by her given under my hand and seal of the court this the 18th day of August, 2001.

K.VEERAPU NAIDU, Presiding Officer Appendix of evidence: Witnesses examined : For

Workman: Management

WW1 S.V.V. Satyanarayana MW1 Sri. C. R. M. Sastry.

IV'-umenst marked for workman :

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting the veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs Surcsh and others etc. reported in AIR 1999 'uprcinc Court 1160 have no application. Here the simple _asc of the workman is that he did not serve for more than 240 days in an year preceding to 31-3-97 and his services were retrenched without following the procedure contemplated under Sec. 25F of the I.D, Act.

Ex.Wl : 27-6-95 : Service Certificate

Ex.W2 : 304-98 : Service Certificate

Ex.W3 : 25-11-9 : Panellist.

Ex W4 : 24-9-81 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Ex.W5 : 16-11-79 : Staff circular No. 91 issued by General Manager (Operations) SBI Personnel Department, Hyderabad.

Documents marked for management:

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they arc not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide brcakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec. 25F and 25B of the ID Act Hence the petitioner catmot ask for reinstatement

(36) In support of his contention in the management's counsel place reliance on a Division Bench decision of Rajasthan High Court reported in 1994 LAB I.C. 1370 between Pali Central Co-operative Bank Ltd., Pali ('?. Sunil Kumar Sharoia wherein their lordships of the Rajasthan High Court were pleased to held under Sec. 25F for the I D. Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the I. D. Act. Therefore, I see no merits in the application.

(38) In the result, the petition is dismissed and nil Award is passed. Howc\ cr, there is no order as to costs and each party is directed to bear its own costs.

Ex. M l: List of Ex-Temporary Employees who raise< dispute before Industrial cum-Labour-Cour (Central), Visakhapatnam.

Ex.M2- Settlement and Judgments rcgardinj rcgularisation of service of the temporan employees and casual employees,

New Dellu. the 17th October. 2001

S.O. 3073 —In pursuance of Section 17 of the Industrial Disputes Act. 1947 (14 of 1947). the Central Go\ ernment hereby publishes the award of the Industrial Tribunal-cum-Labour Court. Visakhapatnam as shown in the Anncxure in the Industrial Dispute between the6585 (3) The petitioner worked in the respondent bank employers in relation to the management of State Bank of India and their workmen, which was received by the Central' Government on 16-10-2001.

[No. L-12014/30/2(X)l-]R(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT. VISAKHAPATAN AM

PRESENT:

Sri K.Vccrapu Naidu. B. Sc. B.L., Chairman &

Presiding Officer

Dated: 18th day of August, 2001

LT.LD(C) No. 29/2000

BETWEEN:

for 266 as water boy and 305 days as messenger from 1985 lo 30-10-96 with breakes and he was terminated on 31 -10- 96 without any notice. Copies of yearwisc break up appointment of the petitioner is hereby filed. The management used to maintain the panel of candidates (o be appointed on temporary posts and the petitioner was also a member in that panel. Several juniors are appointed ignoring the petitioner's seniority The petitioners post is a permanent in nature and he worked for a long period A Iisl of junior candidates whose scr\ ices arc absorbed is filed. The petitioner also gave his application seeking for permanent employment but it was not considered. The management issued a staff circular No. 91 dated 24-9-81 directing the temporary employees should not be engaged for more than 2(K) days in a calandar year. The management did not follow the rule pro\ ided under Sec. 25G of the ID. Act. namely "last come first go". The retrenchment oflhc pciitioncr is only lo acLommodate another employee. The management was paying Rs. 90/- per day at the term of retrenchment. Hence this application.

Kollu Sanjeeva Rao. S/o. Paradesi Rao, Pallipalem, Kajaluru (M), East Godavari Distt. Workium

AND

(1) Tiie Chief General Manager,

State Bank oflndia. Local Head Office, Bank Street, Hyderabad.

(2) Tli c Dy. Genera I Manager, Slate Bank of India. Zonal Office, RTC Complex. 2nd Floor, Visakhapatnam-20. Management

This application coming on for final hearing before me in the presence of Sri M Suryanarayana and Sri M. Sarveswara Rao. advocates for workman ;uid Sri M Ranidas, advocate for management. Upon hearing (lie arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(1) This is an application filed under Sec. 2A(2)of the Industrial Disputes Act, 1947 for reinstatement with back wages.

(4) The second respondent filed its counter pleading thai this application is not maintainable under Sec. 2A of thel.D. Act. as this is not a case of discharge or dismissal, retrenchment or termination of services. While it is a case of penal of candidates prepared as per the settlement entered into between the management and State Bank of India Staff Federation. The petitioner was engaged as a temporary Messenger and water boy in Stale Bank of India Yanam Branch, in a leave vacancy. As per the settlement mentioned above, the empanelled candidates were employed depending upon the vacancies till 3 1-3-97 and juniors who are left over from the cmpcncllcd list could not be accommodated for want of any regular vacancies. It is false lo allege that another person was appointed in the place of workman lo get over the administrative and legal difficulties. It is also false lo allege that (he workman was prevented from working for 200 days to avoid legal and administrative difficulties so that he would not reach the statutory period of240 days which would give him a righl lobe regularised. The services of the workman could only be taken in leave vacancies on daily wage basis and the petitioner was not appointed lo the posl in accordance with the rules. Therefore, the concept of "rctrencliinenl" cannot be extended to the petitioner. It is false to allege thai the services oflhc petitioner were terminated from ^1- 10-1996. In fact, the management did not have (he need lo employ the workman from 3 1-3-97 onwards It is further pleaded that on 17lh November, 1987 an agreement was arrived at between the federation and the management bank under Sec. 2(p) read with Section 18( 1) of the Industrial (2) The case of the petitioner is that he was appointed as Messenger and water boy in the Stale Bank of India.Yanam branch in (he month of Nov., 1985 in a permanent vacancy and he served at different places till he was finally terminated at Slate Bank of India, Yanam Branch, Kakinada. The management did not allow the workman to work more than 240 days in a year with a view to deprive him to claim regularisation on the ground that he worked more man 240 days in a year6586 TV* GAZETTE OF INDIA; NOVEMBER 10,2001/KARTIKA19,1923 [PART II—SEC. 3 (ii)l Disputes Act, 1947 read /ith Rules 58 of Industrial Disputes (Central) Rules, 1957 and it is the 1st settlement. Second settlement is dated 16-7-88 between the same parties. As per the 1st settlement 3 categories A, B and C and they are as follows:

(I) Categories 'A'. Those, who have completed 240 days temporary scrvi cc in 12 months or less after 1-7-1975.

(ii) Categories 'B': Those, who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975.

Oii) Category ' C' Those, who have completed a minimum of 30 daj s aggregate temporary sen ice in any calandar year after 1 -7-75 or minimum of 70 days aggregate temporary service in any continuous block of 36 calendar months after 1-7-1975 In this first settlement, it was agreed that the temporary employees as categorised above would be given chance for being considered for permanent appointment in the management bank's service against vacancies likely to arise during Ihcperiod 1987 to 1991.

(5) As per the 2nd settlement which was agreed to substitute the period for being considered for permanent appointment in the bank against the vacancies likely to arise from 1987 to 1992 in the place of 1987 to 1991 as contemplated under 1st settlement dated 17-11-87. The 3rd settlement is entered into between the same parities on 27-10-88 as per the said settlement a clause 1-A after clause 1 in the first settlement is installed and it is as following:

"persons, who have been engaged in casual basis [as defined in clause ll(ii)hcrcunder] to work in leave/casual vacancies of Messengers, Farrashcs, Cash Coolies, waterBoys, sweepers etc , forany oflhcpcriods mentioned in category 'A', 'B',and C in Clause 1 will be given a chance for being considered for permanent appointment in the bank's service against vacancies likely to arise from 1988 to 1992"

Therefore, the casual/daily wagers were also to be temporary employees and casual/daily wagers separately in the vacancies likely to arise upto 1994 and 1995-96 respectively, which was also agreed to substitute the year 1992 with 1994 in the 1 st settl cment In other words separate panels were prepared for temporary employees and casual/ daily wagers for filling up of the vacancies arising between 1988 to 1994 in respect of temporary employees and for filling up of the vacancies arising between the years 1995 to 1996 in respect of casual/daily wagers. There arc 4 zones at Hyderabad, Vijayawada, Visakhapatnam and Tirupathi covering all the districts in Andhra Pradesh and the local head office of the respondent bank is situated at Hyderabad. With regard to the above said settlement the panels of the selected candidates as well as the casual/daily wagers were prepared nonewise separately for messengers and non- messengers in the decending order of temporary service put in by the candidates during the stipulated period i.e. 1 -7-85 to 31 -7-88 The Federation approached the Regional Labour Commissioner (Central), Hyderabad for implementation of the bipartite settlement in respect of absorption or temporary employees. Then Regional Labour Commissioner (Central) conducted conciliation proceeding on 9-6-95 and an agreement is arrived at between the Federation and the management bank wherein it was agreed that bolli the panels of temporary employees are daily wagers/casual labour will be kept alive up to March, 1997 and the vacancies will be filled from both the lists concurrently.

(7) In pursuance of the conciliation proceedings a settlement was again entered into between the same parties on 30-7-96 it is the 5th settlement whercundcr it was agreed that both the panels of temporary employees and daily wagers cum casual employees will be kept alive upto 1997 filling the vacancies existing/arrived at as on 31-12-94 from the panels prepared in the van* 1992 for both the temporary employees as well as daily wagers/casual employees and thereafter the said panels would lapse.

(8) Another memorandum of understanding was signed on 27-2-97 between the parties to identify the messcngcrial vacancies as on 31-12-94 has since been completed by Central Office and thereby 403 messengcrial vacancies were sanctioned to this circle of the management and other vacancies also may be filled from 1989 panel for temporary employees after effecting conversion from full :„! „•„**;„ ti—~...i —'nncr Therefore, t:

both the panels ;/casual labours

v the above said ;rstanding were6587 filled with the eligible candidates in the panels. The petitioner herein has not put in more number of days than those persons who has been absorbed and the petitioner did not work continuously for so many years as alleged by him and he lias put in less than 240 days in a continuous 12 months period from 1-7-75 to 31-7-K8 and as such, he has no right to ask for absorption in the management bank The case ofthe petitioner was considered in the settlements 1 to 5 referred above and his case have not come up for consideration. The settlement 1 to 5 arc binding on him. The management did not violate any of the terms of the settlements.

(10) It is further pleaded that as per the settlement dated 9-1-91 it is agreed between the parties that vacancies arisen upto December, 1994 will be filled from 19X9 panel on the basis of seniority. Thereafter the said panels would lapse and the remaining or left over candidates are no claim whatsoever for being considered for permanent absorption in the bank.

Federation and the Management is illegal and not binding on the workman. The workman.appeared for the interview as per the settlement and if he is accepted he would have raised an objection before appearing for the interview. Having availed the opportunity as per the empanelment it is estopped from questioning the validity ofthe settlements. With regard to the list of candidates set out in the annexure to the claim statement it is submitted that all the 7 candidates w ere seniors to the workman and they worked for 241 days, 276 days, 179 days, 220 days, 179 days, 196 days and 200 days respectively. The circular dated 24-9-81 has no relevance as it is only to prevent indiscriminate continuation of temporary employees by the branches in the instances where their services were unwarranted. It is false to allege that there is violation of rules in making appointment to permanent basis. The petitioner is not entitled to any prior notice, before he was discontinued from service owing to lapse of panels prepared in compliance with the terms under the settlements 1 to 5. The workman is not entitled for reinstatement and there is no cause of action and the petition is liable to be rejected.

(15) The 1st respondent adopted- the counter filed

by the 2nd respondent.

(11) Coming to the panel of daily wagers enlisted in 1992 panel will be used for filling up the vacancies which may arise in the years 1995 and 1996 and after December, 1996 the said panel ofthc year 1992 also shall stand lapse and ihc remaining candidates in the panel will have no claim whatsoever for being considered for permanent absorption in the bank

(16) On behalf ofthc workman, the workman is examined as WW1 and got marked Exs Wl to W6. On behalf of the management, the Chief Manager, PersonntJ. Hyderabad in the State Bank of India Office, Visakhapatnam is examined as MW1 and got marked Exs. Ml and M2.

(17) Heard both sides.

(18) The points Uiat arise for consideration arc:

(1) Whether the petitioner was retrenched in

violation of Sec. 25F of the I. D. Act?

(2) Whether the petitioner is entitled for

reinstatement with back wages as pray cd for?

(12) 11 is I urther pleaded lhat Ihc temporary service rendered during thepci iod from 1-1-75 to 11-7-88 is only to be taken for permanent absorption and number of days working subsequent to this period arc not counted as per the agreement Since the panels were already lapsed on 31-1-97 engaging their services for subsequent period does notarise. It is further pleaded that as per the settlements 1 to 5 Hit vacancies have been identified and the ex- temporary employees in the panels were absorbed on the basis of seniority.

(H) li is further pleaded thai as per the settlement reached bctvv ccn the Staff Federation and Ihc management the panel of temporary employees who worked upto 11-7-88 was prepared for giving a chance for being considered for appointment of permanent basis. But the same did not give a right to any of Hie empanelled candidates to have their services regularised on permanent basis.

(19) The learned counsel appearing for the petitioner contends that the petitioner was initially appointed as a Messenger and Waterboy in the State Bank of India, Yanam branch in the month of Nov , 1985 in apcrmancnt vacancy and he was continued in service at various places till his services were finally terminated at State Bank of India Main Branch, Kakinada without any notice from 10-10-96. It is further contended lhat the management deprived him lo serve for 240 days in a particular year in order to disentitle him to claim a regular appointment because of two circulars issued by Uic management Exs W5 and W6

(14) It is lalsc to allege lhat the juniors to Ihc workman arc appointed ignoring the claim of Hie workman and his seniority and I'w' the post in which he worked was permanent in nature It is false to allege thai the settlement entered into between the All India Stale Bank of India Staff

<;") On the other hand, the counsel appearing for Ihc management contends mat the petitioner never worked for more than 240 days in any calendar year much less 126588 THE GAZETTE OF INDIA: NOVEMBER 10,2001/KARTIKA 19,1923 PART 11—SLC. 3(ii)] months preceding to 31-10-96, the alleged date of termination. It is also the further contention that by virtue of the 5 settlements dated 17-11-87, 16-7-88, 17-10-88, 9-1 -91 and 30-10-96 entered into between the State Bank of India Federation and the management and the Memorandum of understanding dated 27-2-97, ihc panels of daily wagers enlisted upto 1992 panel will be considered filling up the vacancies which may arise in 1995 and upto December, 1996 and thereafter the said panel lapsed and the petitioner is not a senior. It is also further contended that the workman also appeared for interview in view of the said settlements and could not be selected for want of vacancies and the seniors were given priority. Therefore, it is not a case of retrenchment and that the workman has not worked for more than 240 days and as such he cannot swim into the harbour of Sec. 25FoftheI.D. Act. (21)1 will deal with the first contention raised by the counsel for workman i.e. that the workman was not allowed to serve for more than 240 days in a year in view of the circulars Exs. W5 and W6 issued by the General Manager (Operations), State Bank of India, Hyderabad. Ex. W5 is a circular dated 16th November, 1997, Ex.W6 is the circular dated 16th November, 1979 whereunder the following facilities arc extended to the temporary employees who completed 270 days during Ihc period from I st July, 1972 to 30th June, 1975 or a little later in the matter of absorption and the following facilities are extended to them:

CO The temporary employees, who have worked in subordinate cadre for 270 days or more during 1 -7-72 to 30-6-75 or a little later, be absorbed in the existing regular vacancies in subordinate cadre, if any, subject to their being otherwise eligible and found suitable in an interview, This would, however, be subject to the constraints of reservation of vacancies for SC/ST candidates and after protected temporary employees viz., those who have put in 240 days temporary service in calendar months, have been absorbed.

00 They will be allowed relaxation in age and as educational qualification on the same lines as has been allowed to the protected temporary employees.

(22) It is further instructed in Ex. W6 that:

(a) No temporary employee should be allowed, under any circumstances, to cross 90 days temporary service in a year.

(b) Those, who have completed 270 days temporary service as above and have beenre- in terms of our extant instructions should not be allowed to exceed 240 days in 12 calendar months without prior reference to us.

(c) Under the circumstances, candidates, who did not meet the required stipulations in regard to age/educational qualifications, should be offered temporary/permanent appointment.

(23) Ex.W5 is another circular dated 24th Sept., 198] whereunder it is instructed that the temporary employees who have completed 270 days aggregate service or more during the period from 1-7-1972 to 30-6-1975 ora little later should not be engaged in temporary vacancies fora period in excess of 230 days (stipulated earlier) continuously or in any given period of 12 continuous calendar months.

(24) The teamed counsel appearing for the workman contends that because of the above said two circulars, the workman was not allowed to work more than 240 days in a calender year. Therefore, the workman could not work for more than 240 days so as to seek the shelter under Sec. 25- B or Sec. 25F of the I. D. Act. The learned counsel appearing forthe workman also further contends that Sec. 25B clause (1) where a workman was not allowed to work, due to no fault on his part, he shall be deemed to be in continuous service and in support of his contention he placed reliance on a decision of the Apex Court reported in AIR 1966 SC 75 between Employers in relation lo the Digwadth Colliery Vs. Their workman, wherein their Lordships were pleased to give the meaning of the expression 'continuous service' for not less than one year under Sec. 25F read with Sec. 25- B of the I. D. Act and it is as follows:

¹ 'Though S. 25F speaks of continuous service for not less than one year under the employer, if the workman has actually worked for 240 days during the period of 12 calendar months both the conditions are fulfilled No interrupted service is necessary if the total service is 240 days in a period of 12 calendar months cither before these several changes or after these.''

Their lordships observed that the service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. To appreciate the above said decision and the contention raised by the counsel for workman it is essential to extract Sec. 25B(1).

"25-B(l) : a workman shall.be said to be in continuous service, for a period if he is, for that period, inun-interrupted service, including service, which may be interrupted on account of sickness or authorised leave or an accident or a strike which monopti nuninct remiiarte.mnnrarv vacancies6589 is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."

Lordships observed that even there were some interruptions, the total period worked in a year shall be taken into consideration to treat it as 'continuous service' irrespective of the interruptions or any break of service (25) The learned counsel for workman contends thai even if there was any interruption in the service of the workman on account of a cessation of work which is not due to any fault onthepart of the workman shall bedeemed to be "continuous service" under an employer. Sec. 25- B(2) reads as follows:

(29) Even applying the above said decision to this case, the workman did not complete 240 days service continuously within a period of 12 months and the workman as WW1 admitted that he did not work for 240 days in a calendar year because of the periodical termination made by the respondent.

(30) The learned counsel appearing for (he •' Where a workman is not in continuous serviix within he meaning of Clause (1) fora rcriod of one year or six months, he shall be deemed to be in continuous service under an employer—

management contends mat the workman was employed on casual need basis to work in leave vacancies. Hence the question of their termination periodically or otherwise docs not arise. Anyway, that aspect will be dealt separately at a later stage,

(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 not less than—

CO one hundred and ninety days in the case of

a workman employed below ground in a mine; and

00 two hundred and forty days, in any other

case;

(b) for a period of six months, if the workman during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than—

CO ninety-five days, in the case of a workman

employed below ground in a mine; and

(31) The learned counsel appearing for the workman submits that because he is not provided with any work he could not be able to complete 240 days continuous service and it is not his fault and he shall be deemed that he had worked for more than 240 days in a year and he also further contends that because of the circular issued by the management under Exs. W5 and W6 the workman was not allowed to work for more than 240 days in a year. This contention has no force because the workman joined in the service in the year 1985 and he is only a casual employee. The circulars Exs, W5 and W6 were issued in the years 1979 and 1981 and they were issued much earlier than the date of joining of the workman in the service. Therefore, it cannot be said that those circulars were motiviatcd to deprive the workman from claiming their legitimate rights and that the management indulged in methods amounting to unfair labour practice, (ii) one hundred and twenty days, in any other

case."

(26) In the above said decision, their Lordships have considered the service of the workman worked for more man 240 days in each calender year though with some interruptions.

(27) Therefore, the 1 earned counsel appearing for the

management submits that the above said decision has no application for the reason that the workman in this case hay. not worked 240 days in 2 calendar months preceding to the alleged retrenchment cither with interruptions or otherwise,

(32) It is further contended by the workman that the management in this case is placing reliance on 5 settlements entered into between the Staff Federation and the management (as contained in Ex, M2) and accordingly, the panels of daily wagers were enlisted upto 1992 and the names of the seniors were considered upto 31-3-97. The petitioner and others could not get selection. The counsel appearing for the workman submits that the said settlements do not bind the petitioner as he is only a daily wager. Here the workman in his evidence admitted Uiat he was also interviewed and his name was also included in the panel list. He also admitted that Staff Association and the management entered into agreements for regulnrisation of the temporary employees and certain guidelines were given and that the employees of the list for regular appointment was prepared basing on the agreement entered into between the Staff Association and the management.

(28) As already observed above, the meaning of continuous service was given in the above said judgment. The total working days were 240 days in the above said judgement with some interruptions. Therefore, their6590 THE GAZETTE OF INDIA: NOVEMBER 10,200 I/KARTIKA ] 9,1923 [PART II—SEC. 3(ii)| Therefore, it cannot be said that (he said settlements entered between the Staff Association and the management are not binding on the workman. Whatever it may be, those settlements arc only with regard to the regularisation of the temporary/casual employees. The point before me is not with regard to the regularisation of the services of the petitioner and others. The case of the workmen is that the termination of the petitioner, as alleged by him, is illegal.

(33) The learned counsel appearing for the workman contends that in (he place of (he petitioner sonic contract labour is engaged and that the workman is perennial in nature and as such, the services of the petitioner cannot be terminated. It is also further contended that the management in order to employ labour under the Contract Labour (Abolition and Regulation) Act must obtain licence under Sec. 7 of the Act and no such licence is forth- coming.

wherein then-Lordships of the Rajasthan High Court were pleased to held under Sec. 25F forthe I.D. Act that:

"the termination of the services of the daily wages employees—Not in continuous service for 240 days—His verbal termination of services—does not violate Sec. 25F."

Therefore, the above said decision squarely applies to the case on hand.

(37) Thus, in the light of my aforesaid discussion, the petitioner failed to establish that his case would fall under Sec. 25F of the 1. D. Act. Therefore, 1 see no merits in the application.

(38) In the result, the petition is dismissed and nil award is passed. However, there is no order as to costs and each party is directed to bear its own costs.

Dictated to stcno transcribed by her given under my hand and seal of 11_ court this the 8th day of August, 2001.

K. VEERAPU NA1DU, Presiding Officer APPENDIX OF EVIDENCE

ITID (C) 29/2000

WITNESSES EXAMINED

FOR WORKMAN : WWl: K. SANJEEVA RAO

FORMANAGEMENT : MW1 : C . R M, SASTRY

DOCUMENTS MARKED

(34) This contention has no force because it is not the case of the management that in the petitioner's place somebody else is employed on contract basis. Therefore, the doctrine of lifting me veil to do justice between the parties as was held in the Secretary, Haryana State Electricity Board Vs. Suresh and others etc. reported in AIR 1999 Supreme Court 1160 have no application. Here the simple case of the workman is thai he did not serve for more than 240 days in an y car preceding to 31 -10-96 and Ms servi ccs were retrenched without following the procedure contemplated under Sec. 25F oflhe I.D. Act.

FOR WORKMAN:

Ex. W l: 13-6-92 ; Service certificate

Ex. W2:84-% : Appointment order

Ex, W3 :25-7-98 : Service certificate

Ex. W4; 64-1992 ; Panel List

Ex, W5:24-9-81 ; Staff Circular No. 91 issuedby General Manager (Operations) SBI Personnel Dept., Hyderabad.

Ex. W6:16-11-79 : Staff circular No. 91 Issued by General Manager (Operations) SBI Personnel Dept., Hyderabad.

FOR MANAGEMENT:

(35) On the other hand, the case of the management is that the workman is only a casual labour used to be engaged in the leave vacancies upto 31-3-97 and thereafter they are not taking anyone on temporary basis in the leave vacancies. The management placed Ex. Ml statement showing the number of days the petitioner worked during the relevant period. His services are disengaged as there is no continuous availability of leave vacancies for engaging the services of the petitioner. Therefore, as rightly contended by the learned counsel appearing for the management, that this is a case where the petitioner is only a daily wage employee, worked in different branches, with breaks and there are no particulars of malafide breakes attributable to the management. The workman in this case is not in continuous service of 240 days as required under Sec, 25F and 25B of the ID Act. Hence the petitioner cannot ask for reinstatement,

(36) In support of his contention in the management's counsel placed reliance on a Division Bench of Rajasthan High Court reported in 1994 LAB T.C. 1370 between Pali Central Co-operative Bank Ltd., Pali Vs. Sunil Kumar Sharma Ex. Ml: List of Ex, temporary employees who raised dispute before Industrial Tribunal-cum-Labour Court Visakhapatnam.

Ex.M2: Settlement and Judgments regarding regularisation of service of the temporary employees and casual employees.

New Delhi, the 19th October, 2001

S.O. 3074.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Cen.ral Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh as shown in the Annexure in the Industrial Dispute between the em- ployers in relation to the management of State Bank of India and their wcikman, which was received by theh Central Government on 18-10-2001.

[No. L-12012/17/94-IR(B-I)l AIYAY KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI J. P. SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, CHANDIGARH Case No. ID 39/95

Reference No. L-12012/17/94-IR(D. D Dated 16/17-5-1995

Ravinder Kumar Sharma, C/o The General Secretary, S.B.I. Staff Congress, 1303 Sector-22-B, Chandigarh.

.. Applicant|workman

Versus

The Assistant General Manager, State Bank of India, 7onal Office, Sector-17, Chandigarh.

. . .. Respondent APPEARANCES:

For the workman : Shri O. P. Batra, Advocate. For the management: Shri V. K. Sharma.

AWARD

(Passed on 7th of September, 2001) The Central Government vide order No. L-12012/17/95-IR (D I).dated 16/17th of May, 1995 has referred the following d spule under clause (d) of Sub Sect'on (1) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act 1947) to this Tribunal for adjudication :—

"Whether the action of the management of SBI in termi- nating the service of Shri Rav'nder Kumar Sharma, violating the provisions of Section 25-M of the I.D Act 1947 eodown keeper w.e f. 11-3-78 is legal and justified ? If not, to what relief the workman is entitled ?"

2. The applicant filed statement of cla'm statins that h? was atmointed as godown keeper with the respondent w.e.f. * 8-11-1977 at Ferozepar branch. His services were ternv'nated on 11-8-1978 and after termination of service of the applicant new appointments have also been made without offering any opportunity of employment to him in violation of Section 25-M 3364 GI|2001—29.

of the Act 1947. It was prayed that his termination order may be set aside and the respondent may be directed to reinstate him w.e.f. 12-3-1978 wiih full back wages and continuity of service.

3. The non-applicant in the reply has raised preliminary objection that the claim has been filed after a period of 19 years ard thus can not be entertained. On merits it was stated that the applicant was appointed as temporary godown keep.r for particular period against temporary and seasonal vacancy H> had not comple'ed 240 days service in 12 calendar months. Ills serv;cps weie discontinued when no longer required. Us worked only foi a period of 122 days.

4 In sunport of the claim, the applicant has filed his own affidavit. The representative of the non-appl cant was given ecportunity to cross-examine the aoplicant on his affidavit. On behalf of the respondent the affidavit of S. R. Vaid was filed Learned counsel for the applicant was given opportunity to cross-exam'ne the witness on his affidavit.

5. Heird aigumen's of the learned advocate on behalf of the applicant and learned representative of the respondent and pursued the record.

6 It is not in dispute that the dispute has been raised on behalf of the applxant after about 16 years. But merely because of delay in raising ths dispute the claim can not be disallowed It may however bf considered that on account of cHay what reasonable relief can be granted to the appl cant.

7. It is not in dispute that the applicant had served the respondent foi the per'od of 122 days prior to the alleged date of tei rtiination of his services. It has been admitted by the lespondent that the services of the applicant were d's- p-nsed with as the same were no longer required. The services of the apnlicant were therefore, terminated by the respondent when amounts to retrenchment.

S. It has been admitted on behalf of the respondent in reply to the application dated 18-12-2000 filed on behalf of the applicant thai the follow'ng persons were engaged by the resnondent as godown keeper in the following branches of the f ank.

Branch Name Period

1. Sunil Kumar 25-2-80- to 24-5-80 Davinder Goel 12-4-84 to 9-7-84 Kulwinder Singhl 5-11-83 to 11-2-84

2. 3.

Jalalabad Jalalabad Guru Marsahai

Fazilka Tota Ram 3-11-83 to 31-1-84

4.

It is therefore, evident that after termination of the services of the apnlcaiit appointments were given to the persons men- tioned above. It is also not disputed that before giving appointment to the persons mentioned above, no opportunity of employment was offered to the applicant. The respondent thi's has violated the provisions of Section 25-M of the Act 1947.

9 It has bepn held in case reported in R.L.R. 1991 (2) v>"iv 65 Suiya Pf"rVa<;h Sharma Vs. Rajasthan Text Book B^md Jaipur and o*h~rs that the petitioner can claim wase-5 bv wav of cor"m*n"ation of the r"ariod during which h's jurors rcrna n<-

10 In vifw of the above authority the action of the rev n¹" '"nt in not oflfprinf oonortun'tv of emDlovm^nt to tti<" applicant as rer the rpcm'rpmpnts TI|s. 25-M of the Act 1947 ;s Md iJWal and uniust"fi<"d and and Davinder Goel received as temporary godown keeper from the bank.